Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:

1. The Accused has been arraigned on five charges pursuant to s 474.19(1) of the Criminal Code (Cth). They each concern alleged transmission, accessing, or possession of child pornography material.

2. Each of the charges carries a maximum penalty of 15 years imprisonment. The Accused has pleaded not guilty to each charge.

3. All of the material, the subject of the charges, is alleged to have been found on a mobile phone the Crown will contend was owned and operated by the Accused.

4. This is an Application by the Accused to exclude all of the evidence obtained from that mobile phone pursuant to s 138 of the Evidence Act 1995 (NSW) ("Evidence Act"). The Accused submits that evidence was obtained either improperly, in contravention of an Australian law, or in consequence of such an impropriety or contravention.

5. The Accused also seeks to exclude two admissions allegedly made by him to police to the effect that the phone was his mobile phone and the provision of the access code that allowed police to gain access to the material in the phone.

6. The basis of the Applications is ss 90 and 138 of the Evidence Act.

Two questions of construction: s 110 LEPRA; s 139(2)(a) Evidence Act

7. The Applications raise for consideration two questions of statutory construction, both of which appear to be important, and neither of which, as far as the parties and I can ascertain, have been the subject of judicial consideration.

8. Those questions are the meaning of "protected suspect" for the purpose of s 110 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"); and what does the phrase "an investigating official who did not have the power to arrest the person" mean in the context of s 139(2)(a) of the Evidence Act?

The facts

9. The circumstances under which the statements from the Accused were obtained and the material extracted from the phone are straightforward.

10. On 23 February 2024, Police were granted a telecommunications warrant, allowing them to electronically monitor the activities of a person.

11. Between 22 April and 23 April 2024, police intercepted a number of calls between that person and a phone number of the Accused.

12. On 6 May 2024, a car was purposely set alight in a suburb of Sydney.

13. After that fire, Police intercepted a number of calls between the person and a phone number police believed to be used by the Accused.

14. Police assert that during these calls, the Accused and a third man discuss the car fire. This and some CCTV footage caused them to suspect that the Accused was involved in deliberately setting fire to the car.

15. On 14 May 2024, Police applied for and were granted a search warrant for the Accused's residence, together with a Digital Access Order linked to the search warrant.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198157db27ae22d618bebc6c)

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