Measure for Measure – Police Powers v Privacy

Police powers and Police responsibilities measured against the right to privacy – a case study

The goal of this paper is to discuss the impact of the Human Rights Act 2019 (Qld) upon police practices such as the searching of a person in public places without a warrant. This case study arose out of a prosecution in the District Court at Bundaberg of an alleged offence of supplying a dangerous drug. The defence objected to the search of a mobile telephone in circumstances where the safeguards set out in the Police Powers and Responsibilities Act 2000 (Qld) had not been applied and police officers had acted unlawfully. Additionally, the defence alleged that the behaviour of the police officers was contrary to the right to privacy pursuant to section 25 of the Human Rights Act. A pre-trial ruling was sought pursuant to section of the 590AA Criminal Code (Qld).  The Attorney General and the Human Rights Commission both intervened in the case. Ultimately, the prosecution was discontinued prior to the section 590AA hearing. Consequently, there was no published judgement. However, this article sets out the relevant arguments.

Mr Collins appeared as Counsel for the accused. Mr Underwood appeared as Counsel for the Human Rights Commission. The authors wish to thank Kent Blore for comments on an earlier version of this paper.

---

Mr Pike[3] was indicted in the District Court at Bundaberg on one count of supplying the dangerous drug methamphetamine to another person. The supply count was what is referred to as an “act preparatory”. The only evidence in the case was a short series of text messages on a mobile phone which had been searched by police without a warrant. The prosecution initially asserted that Pike had consented to the search. The defence team considered that there were a number of potential breaches of the Police Powers and Responsibilities Act 2000 (Qld) (“P.P.R.A.”). Additionally, that police officers had acted unlawfully pursuant to the Human Rights Act 2019 (Qld) (“H.R.A.”). Police had photographed the various text messages on the screen of Pike’s mobile telephone. An application was made pursuant to section 590AA Criminal Code (Qld) (“Code”) to exclude the evidence of the admissions in Pike’s interview and the photographs.

Prior to the section 590AA application, the Human Rights Commission (“Commission”), the Attorney-General of Queensland (“Attorney”) and the Director of Public Prosecutions were served with a notice pursuant to section 52 of the H.R.A. The Commission and Attorney intervened. Despite the fact that there was no ruling in this case, the right to privacy recognised by section 25(a) of the H.R.A., and the duties of police officers as public entities under the H.R.A,. are factors that counsel engaged in criminal defence work should become familiar with.

The Attorney and Commission submitted very through and informative outlines of argument.

1. The Background

At approximately 7:00 am on 05/04/2022, police were dispatched to attend a motor vehicle burning on a country road outside of Bundaberg. Senior Constable Mainwaring and Constables Frazer and Jones (“officers”) were traveling in a marked police vehicle toward a plume of black smoke. En route, the officers observed Pike walking along a road, towards Bundaberg apparently away from the plume of smoke. The officers stopped their vehicle and spoke with him.

The officers observed that he appeared to have soot-like marks on his hands, arms, and clothes.

The officers were wearing body worn video cameras which were operating during their discussion with Pike. In addition to Pike’s dirty appearance, the officers considered his demeanour to be evasive and/or nervous. An officer inspected Pike’s wallet and asked him to open the front of his trousers and underpants so that he could inspect him to see if there were any objects hidden in his clothing.

Mainwaring took Pike’s mobile phone.  It was evident from the video recording that Mainwaring inspected the contents of the telephone and made a comment that there were a number of calls to/or from a person called Walker earlier that morning.

Subsequent police investigations included obtaining the call log from Pike’s service provider which indicated that there were the following messages concerning Walker:

4669 – 05/04/2022 at 00:55:47;

4670 – 05/04/2022 at 00:58:57;

4671 – 05/04/2022 at 01:02:1147

4674 – 05/04/2022 at 04:00:08

These messages were irrelevant to the offence that Pike was ultimately charged with. The messages the subject of the charge was from and to a person named Godfrey.  Those messages were 4876 at 05:38:19 through to 4686 at 06:47:05. These messages showed that Godfrey wished to purchase “half a weight”[4] and that the purchase price was not agreed upon. Initially, at the roadside there was no mention by police of the messages between Pike and Godfrey, although clearly they were the last messages made by Pike.

When initially intercepted by police, Pike was carrying a cloth washer. When asked by an officer why he was holding that washer, he said it was because he suffered from anxiety. When asked what caused him anxiety, he said words to the effect “large crowds of people and police”.

During their discussions with Pike, he told police that a friend had taken his vehicle, a gold-coloured Nissan Navara, and that he wanted his vehicle back.

Police then went to the scene of the vehicle fire and spoke with a member of the Queensland Fire Service, who informed the officers that he had been informed that a gold-coloured vehicle left the scene prior to the fire.

Frazer made a comment to the effect “Well … we have our suspect”. It was apparent that the officers considered that Pike was a suspect for the arson of the motor vehicle.

Frazer and Mainwaring then returned to Pike; he was detained and issued with the standard caution pursuant to the P.P.R.A.  When asked if he wished to contact anyone, Pike said that he wished to call his mother. Police made no attempt to contact Pike’s mother but rather commenced questioning him. It was asserted by the defence that this was a clear breach of section 418 of the P.P.R.A.

That questioning included the following:

While being questioned, Pike was asked to identify one of the females at the scene. He enquired whether “…they will find out about it”. Mainwaring said, “No, no, no … it’s between you and me and my partner”. Mainwaring went on to say, “the more you give to us the less it will come back on you”.  Frazer then said, “Look you’re a party …you’re a party to the offence” and Mainwaring interjected “at this stage it’s on you.”

The defence argued that the answer given by Pike was improperly induced.

Pike was placed into the pod at the rear of the police vehicle. The police then returned in that vehicle to the scene where the car had been burned. Pike asserted that a uniformed female police officer (presumably Frazer) demanded of him that he provide the access code to his mobile telephone.  This conversation does not appear to have been recorded. The defence asserted that if this conversation occurred there was a breach of section 436 of the P.P.R.A.

Pike was subsequently taken to the Bundaberg watchhouse where he was formally interviewed by Plain Clothes Senior Constable Hodges of the Bundaberg Drug Enforcement team at 1:37 pm. When asked if he wished to contact or speak with any person, Pike nominated his mother. Again, the questioning continued without Pike being able to speak with his mother.

Hodges initially questioned Pike about the fire, then turned to the text messages (4876 at 05:38:19 through to 4686 at 06:47:05) found on his mobile telephone between him and Godfrey. Pike admitted that those messages were in relation to the supply of a dangerous drug.

Prior to committal, Hodges provided a statement in which he indicated that he had a discussion with Pike and requested the access code for his mobile phone. That conversation was not recorded, which was also said to be a breach of section 436 of the P.P.R.A.

Pike denied that any such conversation took place and maintained that a female uniformed officer had demanded the access code from him.

After committal, several requests for disclosure were made which included the watchhouse records indicating that on a number of occasions Pike had expressed thoughts of self-harm and was distressed while in the watchhouse.

A request was made for the Police communication records and, curiously, there was no record of the officers conversing with or communicating with Hodges or the Bundaberg Drug Enforcement Team.

Nor was there a record of Pike’s mobile telephone being registered in the exhibits register.

2. Police Powers and Responsibilities Act 2000 and Human Rights Act 2019

A. Alleged breaches of the Police Powers and Responsibilities Act 2000(Qld)

It was apparent that there were a number of potential breaches of the P.P.R.A.

Without descending into detail, the alleged breaches included breaches of:

1. section 418 – right to communicate with a friend or relative;
2. section 436 – the recording of questioning; and
3. section 695 – concerning deficiencies in the registering of the seized mobile telephone.

B. The Human Rights Act 2019 (Qld)

There was also an issue raised by section 25 of the H.R.A. That section provides:

A person has the right—

(a) not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have the person’s reputation unlawfully attacked.        

Section 5(2)(c) H.R.A. states that the Act binds “a public entity” to the extent that the public entity has functions under part 3, division 4. Section 9(1)(c) states that the Queensland Police Service is a public entity.

Part 3 Division 4 includes section 58(1) which provides:

(1)        It is unlawful for a public entity—

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.

Although it is not an issue which was raised in this case, it is at least arguable that, when Police officers are applying for a Search Warrant, they are public entities and should consider the right to privacy of the subject of the search. It is also at least arguable that a Justice or a Magistrate when considering such an application is acting administratively and not judicially and thus is a ‘public entity’ bound to consider the human rights of the subject of a search warrant.[5] There is a further interesting question as to whether the Justice or Magistrate must consider the rights of third parties who may be at the place being searched.

3. Pre-Trial Hearing

The fundamental issue in this case was whether the search of the mobile phone was lawful.

On 24 April 2023, after the presentation of the indictment, the matter was mentioned at a call over of the District Court matters in Bundaberg. A pre-trial hearing pursuant to section 590AA of the Code was set down for 2 June 2023, with directions that the applicant’s outline of argument filed and served by 11 May 2023.

Section 52 of the H.R.A. provides that notices must be given to the Attorney-General and the Commission where “a question of law arises that relates to the application of the Human Rights Act”  (The approved form is form 1).

Instructing Solicitors Macrossan & Amiet Solicitors of Mackay served form 1 on the Attorney, and the Commission (“the intervenors”), as well as on the Office of the Director of Public Prosecutions.

The Attorney-General intervened pursuant to section 50 of the H.R.A. and submitted:

(a) The applicant’s right to privacy in s 25(a) of the HR Act will have been breached if it is found he did not consent to police accessing his mobile phone and the police officers did not have any other lawful authority to access his phone. In that case, the police officers will have acted unlawfully under s 58(1) of the HR Act. Conversely, if he did consent, the police officers would have acted compatibly with his right to privacy, and therefore lawfully under s 58(1) of the HR Act.

(b) Breach of s 58(1) of the HR Act would enliven the discretion to exclude evidence on public policy grounds. All the normal factors relevant to the Bunning v Cross discretion apply.

(c) Identifying that a human right has been breached serves to indicate the seriousness of the impropriety. The particular weight to be accorded to this factor will depend on the gravity of the human rights breach.

(d) However, s 58(6) of the HR Act indicates that the breach of s 58(1) is not intended to be treated as criminal or as leading to invalidity, indicating that a breach of s 58(1) may not carry as much weight as a breach of other laws.[6]

The Commission also intervened, in essence agreeing with the position of the Attorney to the effect that, if Pike did not voluntarily consent to his mobile telephone being searched, then his human rights had been breached.

Both intervenors agreed that officers of the Queensland Police Service are a “public entity,” within the meaning of,  and were bound by section 58 of, the H.R.A. Such provision, relevantly, provides:

58        Conduct of public entities

(1)        It is unlawful for a public entity—

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.

                        …

(5)        For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—

(a) identifying the human rights that may be affected by the decision; and

(b) considering whether the decision would be compatible with human rights.

Section 58(1) of the H.R.A. imposes upon police officers two distinct obligations: a substantive obligation pursuant to subparagraph (a), i.e. to act and make decisions compatibly with human rights (“the substantive limb”) and a procedural obligation pursuant to subparagraph (b), i.e. to give proper consideration to relevant human rights when making decisions (“the procedural limb”).

In Pike’s case there were a number of instances where police had arguably failed both obligations. Firstly, the search of Pike at the roadside involved police demanding that Pike open his shorts to allow an inspection inside his underwear. This was conducted in a public place and without any request for consent. No explanation was given by police as to why such a search was necessary or required. The initial search of the mobile phone was preceded by Mainwaring saying, “Can I just have a look at your phone?” While those words could be construed as a request, they did not relay a reason why the search was necessary.  On that basis, it may have been argued that the police officers engaged or limited the right to privacy in section 25(a) of the H.R.A. Additionally, one of the officers took a digital image of Pike using an iPad or similar device, without any explanation or reason being given for doing so.

The term” compatible with human rights” is defined in section 8 H.R.A.

8          Meaning of compatible with human rights

 An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

(a) does not limit a human right; or

(b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.

Section 13 of the H.R.A. sets out how limits to human rights may be justified. Broadly, it sets out a test of proportionality.

13        Human rights may be limited

(1)       A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

(2)        In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

(a) the nature of the human right;

(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e) the importance of the purpose of the limitation;

(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;           

(g) the balance between the matters mentioned in paragraphs (e) and (f).

Equally, it is at the very least arguable that Mainwaring did not even begin to consider Pike’s right to privacy. Especially when that search was conducted, on any view of the evidence the officers could not have held a reasonable suspicion that Pike was involved in the fire. Indeed, the fact that the officers drove away from Pike after searching and questioning him suggests they did not consider him a suspect. Fraser’s subsequent statement at the scene of the fire “Well … we have our suspect”, arguably confirms that the officers did not have a sufficient basis at the initial discussion with Pike to justify their action.

In Austin BMI Pty Ltd v Deputy Premier [2023] QSC 095 at [306] Freeburn J held:

[306] The Attorney-General submits, and it is accepted, that compatibility with human rights should be considered in three stages: engagement, limitation, and justification:

(a) Engagement: A measure will ‘engage’ a human right, if the right is ‘relevant’ or ‘apparently limit[ed]’. ‘The relevance may be that the right is interfered with (i.e. a negative effect) or promoted’. A human right can only be limited if it is engaged, but it is possible that a human right may be engaged but not limited (for example, property might be deprived so that the right in s 24(2) is ‘engaged’, but the deprivation may not arbitrary, so that the right is not in fact ‘limited’).

(b) Limitation: A measure will ‘limit’ a human right for the purposes of s 8 of the Human Rights Act, if it ‘places limitations or restrictions on, or interferes with, the human rights of a person’. That necessarily involves considering whether the impact comes within the scope of the right. When determining scope, ‘rights should be construed in the broadest possible way’, by reference to the right’s ‘purpose and … underlying values’. Because ‘[t]he protection of human rights crosses borders’, the scope of human rights may also be informed by international jurisprudence, including the jurisprudence of the Human Rights Committee (the treaty-monitoring body for the International Covenant on Civil and Political Rights (ICCPR)). Any recourse to international authority must take into account the particular legal and constitutional context in which those cases were decided.

(c) Justification: A limit will be ‘justified’ if it satisfies the proportionality test in s 13 of the Human Rights Act. It is at this stage that the overall protection of the right is narrowed to ‘mitigat[e] any damage to society that may arise from upholding an individual’s right.’ It is important that this be done at the third stage using the transparent reasoning process set out in s 13.[7]

In the Attorney’s submissions, the standard required for the procedural limb in s 58(1)(b) of the H.R.A. was explained in the following manner:

The reference to ‘compatible with human rights’ in s 58(5)(b) directs attention to ss 8 and. Effectively, the public entity must turn his or her mind to relevant human rights, and genuinely attempt a compatibility assessment. However, ‘both those tasks need to be approached in a common sense and practical manner’. Public entities  ‘are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge’. Further, the standard of proper consideration is a variable standard depending on the nature of the act or decision.  Police officers on the front line are not expected to consider human rights to the same depth as a Minister exercising a statutory discretion with large consequences for many people. (footnotes omitted)

However, both intervenors agreed that in order for the procedural limb in section of the 58 H.R.A. to be satisfied, the public entity “had to seriously turn their minds to the possible impact of the decision on the subject person’s human rights and the implications for that person”.

In Pike’s case it would seem that there was no evidence to suggest that the officers undertook such a process, though it should be noted that the hearing did not proceed.

4. Privacy

The relevant human right was that to privacy.  The explanatory notes to the H.R.A. set out that the right to privacy is broad:

“…protects privacy in the narrower sense including personal information, data collection and correspondence, but also extends to an individual’s private life more generally. For example, the right to privacy protects the individual against interference with their physical and mental integrity; freedom of thought and conscience; legal personality; individual identity, including appearance, clothing and gender; sexuality; family and home.”

In Director of Public Prosecutions (Vic) v Kaba (2014) 44 VR 526 Bell J at [119] described the right to privacy in the following terms:

[119]      In human rights terms we can generally understand the right to privacy as ‘the right to be let alone by other people’  and ‘the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself’.   This general way of understanding this right is helpful as far as it goes but does not fully capture the personal interests that are protected, the nature of the injury that is done to dignity by a breach and the interaction between the right to privacy and other human rights.

In the context of criminal prosecutions, the right to privacy may not always sit comfortably with the public interest in successfully prosecuting persons who have committed serious criminal offences. In a case such as the present where the only evidence which could be brought against Pike was that which was found by accessing his mobile telephone, any initial suspicion held by Police could only have concerned the fire. While there was no cross-examination as to whether Mainwaring actually saw the text messages between Pike and Godfrey, the fact that an officer of the Bundaberg Drug Enforcement Team was tasked with the interview of Pike at least raises an inference that he did.

If the officers’ suspicions were raised by the fact that he was walking away from the apparent scene of an alleged crime they were on their way to investigate, his physical appearance i.e. appearing to be dirty and/or soot-covered and his apparent nervousness when approached by police, that suspicion can only have been as to his involvement in the offence of arson.

That nervousness may well have been as a consequence of his recent communication with Godfrey concerning the supply of dangerous drugs.

5. The Right to Privacy and Mobile Phones

In its outline, the Commission referred to the comments made by the United States Supreme Court in the opinion of the Court in Riley v California 573 US 373 (2014). It is useful to set these observations in full, despite their length:

Modern cell phones … are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. … Cell phones … place vast quantities of personal information literally in the hands of individuals. …

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of … physical items. … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. … Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.

But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. … Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. … We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. … A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. … But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.

Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet enabled phone and could reveal an individual’s private interests or concerns— perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. … (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

The Commission submitted that “These observations show that, so far as the right to privacy is concerned, mobile phones are in a class of their own. The power to search a person’s mobile phone is akin to the power to search through a person’s life. The search is apt to destroy any semblance of privacy that the person may wish to maintain.”

6. Piggyback Cause of Action

The interveners agreed that if Pike did not freely consent to his mobile phone being inspected, then the H.R.A. was enlivened.  Section 59 of the H.R.A. provides the requirement for the so called “piggy pack cause of action”.

59           Legal proceedings

(1)           Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.

(2)          The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).

In Pike’s case that requirement was satisfied by the application which sought the exclusion of evidence on the independent ground that it was not authorised by the P.P.R.A.

7. Conclusion

This case was resolved when the Crown Prosecutor entered a Nolle Prosequi on the indictment before the Code section 590AA proceeding was concluded. Obviously, the allegations against Pike were of a lower order of seriousness. The actions of the officers were captured on body worn cameras, and ultimately their potential breaches of the P.P.R.A. were serious enough to warrant the discontinuance of the prosecution.

The case, however, is illustrative of how the H.R.A. can be used by defence in cases involving a breach of privacy.

---

[3] All names have been anonymised and replaced with the names of characters from “Dad’s Army”.

[4] .5 of a gram of methamphetamine

[5] See section 9(4)(b) of the H.R.A.

[6] Attorney-General (Qld), ‘Outline of Submissions on Behalf of the Attorney-General Intervening’, Submission in [Redacted] v The King, BUN-DIS-1/23, 30 May 2023, [3].

[7] See Sabet v Medical Practitioners Board (Vic) (2008) 20 VR 414, 431 [108]-[109]; Baker v DPP (Vic) [2017] VSCA 58; (2017) 270 A Crim R 318, 331 [56]; Thompson v Minogue [2021] VSCA 358, [96]; see also Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [132].