R v Parsons (a pseudonym) [2024] NSWDC 578

R v Parsons (a pseudonym) [2024] NSWDC 578

Evidence obtained from the accused's mobile device must be excluded because it was procured in consequence of improper and/or unlawful conduct. The accused was a protected suspect due to his reasonable belief that he was not free to leave, his age, Aboriginality, and intellectual impairment; statutory obligations to afford additional protections (including those under s 23H) were breached. Police requests and representations made regarding access to the device created an impression of inevitability, failed to cater for the accused's vulnerabilities, and vitiated true consent. The Crown did not discharge the burden of showing the desirability of admission outweighed the undesirability...

Parties
Prosecution: Director of Public Prosecutions (Crown); Accused: T. Parsons (a pseudonym)
Jurisdiction
Australia
Judgment Date
21 February 2024
Procedural Posture
Criminal / Pre Trial Procedural Ruling on Admissibility of Evidence
Outcome
Evidence excluded.
Legal Topics
Admissibility of Evidence, Protected Suspects, Police Powers, Rights of Aboriginal Persons, Intellectual Impairment and Procedure, Improperly Obtained Evidence
Criminal Law Evidence Law Admissibility of Evidence Protected Suspects Police Powers Rights of Aboriginal Persons Intellectual Impairment and Procedure Improperly Obtained Evidence

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Parties

Director of Public Prosecutions (Crown)

Prosecution

T. Parsons (a pseudonym)

Accused

Procedural Posture

Criminal / Pre Trial Procedural Ruling on Admissibility of Evidence

Legal Issues

  1. 1 Whether evidence obtained from accused's mobile device should be excluded for being obtained unlawfully or improperly; whether the accused was a 'protected suspect' under the Crimes Act 1914 (Cth); whether the requirements of Parts IC and 1AA of the Crimes Act 1914 (Cth) and relevant provisions of the Evidence Act 1995 (Cth) were complied with; whether consent to provide access to the device was voluntary.

Ratio Decidendi

Evidence obtained from the accused's mobile device must be excluded because it was procured in consequence of improper and/or unlawful conduct. The accused was a protected suspect due to his reasonable belief that he was not free to leave, his age, Aboriginality, and intellectual impairment; statutory obligations to afford additional protections (including those under s 23H) were breached. Police requests and representations made regarding access to the device created an impression of inevitability, failed to cater for the accused's vulnerabilities, and vitiated true consent. The Crown did not discharge the burden of showing the desirability of admission outweighed the undesirability...

Court Disposition

Evidence excluded.

Orders

  • All items found consequent to the search of the accused's mobile device on 8 June 2022 are excluded from evidence pursuant to s 138 Evidence Act 1995 (Cth).