The Queen v Van Houten  SADC 23 (28 February 2022)
This judgment of Judge Heffernan of the District Court of South Australia informs the reader of what rulings he made as to the admissibility of evidence, and the reasons for those rulings. This followed an application by Mr Van Houten that certain evidence collected by the police should be excluded by the judge and not be allowed to be put before a jury in the course of the trial. This type of hearing is referred to as a voir dire – in essence it is a trial within a trial; it is a smaller ‘trial’ conducted in the absence of the jury and separate from the main trial. The purpose of a hearing on the voir dire is to hear and determine an application by the defence as to why certain evidence should be excluded for a particular reason. It might be argued that the evidence was unfairly or illegally obtained by the police and because of that unfairness or illegality the prosecution, as a matter of public policy, should not be permitted to tender such evidence because the police should be expected to act lawfully and fairly in their investigation of crime. Or, it might be argued that a confession obtained by the police was not a voluntary confession and therefore inadmissible.
When the argument is based on a matter of public policy, in deciding whether to exclude evidence or not, a judge will weigh the seriousness of the police misconduct, illegality or unfairness against the seriousness of the crime charged. The judge will then decide, after that balancing exercise, whether the evidence should be excluded or not. A hypothetical example illustrates this. Supposing the police stop a motorist and conduct an illegal search of the boot of a car and discover the corpse of a murder victim. A judge would be likely to decide that the public interest in the evidence of such a serious crime being admitted outweighs the seriousness of the police misconduct. On the other hand, if what was detected was a kilo of cannabis, a judge might decide the issue differently.
The facts of the voir dire
Mr Van Houten was stopped on his way to Victor Harbor in the lead up to Schoolies Week in 2019. A drug detection dog gave a positive indication to its handler of the presence of drugs in the vehicle. Methylamphetamine was found in a resulting search along with cannabis and the drug known as “Fantasy” in liquid form. The police seized the accused’s phone and asked him to provide its PIN, which he did. The police then searched the phone in search of evidence of drug-trafficking. It was argued on the voir dire that the accused should have been cautioned that he was not obliged to provide the PIN if he did not want to. The Crown agreed that the police had indeed not cautioned Mr Van Houten but the evidence should nevertheless be admitted in the exercise of the court’s discretion. Judge Heffernan concluded that while Mr Van Houten should have been informed of the reason for the request, and that he did not have to supply the PIN, the failure of the detective was not deliberate or underhanded. It was an oversight and a departure from what would have been his usual practice in similar circumstances. That being the case, and because Mr Van Houten could not demonstrate that the police could not have managed to access his phone without relying on the PIN the application to exclude the evidence resulting from a search of the phone was dismissed.
In making his decision, the judge, while finding impropriety on the part of the police, found that the conduct was not deliberate or underhanded. In addition, the police may have been able to access the phone by other means, so Mr Van Houten had not suffered any detriment. Weighing these matters and the seriousness of the offence against the misconduct, he exercised his discretion in favour of admitting the evidence.