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District Court 20 November 2023

R v Fagundez (No 1)

[2023] NSWDC 508

Sexual offences
CRIME ILLEGAL SEIZURE IMPROPERLY OBTAINED EVIDENCE

Citation: R v Fagundez (No 1) [2023] NSWDC 508
Court: District Court of New South Wales
Date: 20 November 2023
Judge(s): Newlinds SC DCJ

Background

The accused faced two counts of possessing child abuse material. The first count related to images found on a mobile phone seized in January 2020. The second count related to a video allegedly stored on a separate mobile phone seized at the time of the accused's arrest on 6 May 2021.

At the commencement of trial, the accused brought an application to exclude evidence obtained from the second mobile phone. The application turned on whether police had lawfully seized that phone at the time of arrest.

The seizure arose in the following way: police arrested the accused at his premises and, while he was preparing to accompany them to the station, repeatedly asked whether he had "his phone." He located it, placed it in his pocket, and later put it on the toilet cistern while changing clothes. Police then asked him to pick it up and hand it to them, which he did. No warning was given to the accused that he was not obliged to comply with police requests after arrest.

Legal Issues

  • Whether the seizure of the second mobile phone was lawful under any of sections 21, 27(1), or 28A of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Whether the evidence was improperly or illegally obtained within the meaning of section 138(1) of the Evidence Act 1995
  • If so, whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that manner, under the section 138 balancing exercise

Decision

Issue 1: Section 21 of LEPRA (seizure where officer suspects evidence of an offence)

The court found that the Crown failed to establish a lawful exercise of power under section 21. There was no evidence before the court that the arresting officers suspected, on reasonable grounds, that the phone might provide evidence of a relevant offence (at [15]). The officers did not give evidence on the voir dire, and no reason for the seizure was communicated to the accused as required by section 202 of LEPRA. The court ruled out section 21 as a valid source of power (at [16]-[17]).

Issue 2: Section 27(1) of LEPRA (search of arrested person)

This ground failed on the same foundational basis: there was no evidence that the officer suspected on reasonable grounds that a search was prudent. More fundamentally, section 27 could not justify the seizure because the officers already knew the accused was carrying the phone; they had asked him to retrieve it in their presence. The court found the seizure was not pursuant to section 27 (at [18]-[19]).

Issue 3: Section 28A of LEPRA (search for dangerous implements)

The court examined the second reading speech when section 28A was introduced and concluded that the provision was designed to protect police and others from dangerous implements, not to enable police to obtain evidence from an arrested person (at [22]). Because the search and seizure of the phone was not undertaken for that protective purpose, it could not be justified under section 28A (at [23]).

Issue 4: Section 138 balancing exercise

Having found the phone was both illegally and improperly obtained, the court applied the section 138(1) test. The court assessed the probative value of the evidence as not particularly great: the expert evidence went no higher than establishing that the phone might have accessed the relevant website, falling short of proving the accused had actually viewed the material (at [35]). Against that, the court weighed the gravity of the police conduct, finding a reckless disregard for the accused's rights and for the limitations on search and seizure powers (at [36]). The court was not satisfied that the desirability of admitting the evidence outweighed the undesirability of doing so, and the prima facie exclusionary position under section 138 was not displaced (at [37]-[38]).

Orders Made

  • The information obtained as a result of the seizure of the second mobile phone is inadmissible in the trial.

Key Takeaways

  • The District Court confirmed that where police fail to give any reason for seizing property as required by section 202 of LEPRA, and where the arresting officers do not give evidence on a voir dire, a court may safely conclude that the seizure lacked a lawful basis under section 21 of LEPRA (at [16]-[17]).

  • Section 28A of LEPRA serves a protective purpose, authorising searches to detect dangerous implements, and does not extend to searches conducted for the purpose of obtaining evidence from an arrested person (at [22]-[23]).

  • A failure to warn an arrested person that they are not obliged to say or do anything in response to police requests constitutes improper conduct capable of rendering subsequently obtained evidence "improperly obtained" under section 138 of the Evidence Act 1995 (at [26]-[27]).

  • Under the section 138(3) balancing exercise, relatively low probative value and a finding of reckless disregard by police for the rights of the accused can together tip the balance in favour of exclusion, even where the evidence is central to a serious charge (at [35]-[37]).

  • Reckless disregard for the limitations on search and seizure powers, in the absence of any explanation from the officers involved, may be found without the court needing to go as far as characterising the conduct as deliberately unlawful (at [36]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 , ss 138(1), 138(3),
- Law Enforcement (Powers and Responsibilities) Act 2002 ss 21, 27 (1), 28A

Cases
- Not stated