CD & Anor v Director of Public Prosecutions (SA) & Anor

[2025] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A24 of 2024

B e t w e e n -
CD
First Appellant
TB
Second Appellant
and
DIRECTOR OF PUBLIC PROSECUTIONS (SA)
First Respondent
ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 MAY 2025, AT 2.25 PM

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with MR D.F. O’LEARY, SC and MS S. PALANIAPPAN for the appellants. (instructed by Agresta Moran Barristers & Solicitors)

MR M.G. HINTON, KC: If the Court pleases, I appear with my learned friends MS A.F. CAIRNEY and MR W.M. SCOBIE for the first respondent. (instructed by Director of Public Prosecutions (SA))

MR T.M. BEGBIE, KC: May it please the Court, I appear with MR P.J. MELICAN and MS M.R. SALINGER for the second respondent. (instructed by Australian Government Solicitor)

GAGELER CJ: Thank you, Mr Begbie. Now, there is an application for the revocation of special leave to appeal in this matter.

MR HINTON: Correct, if your Honour pleases.

GAGELER CJ: We have seen what has been written about it. Do you have anything to add to your written submissions, Mr Hinton?

MR HINTON: Nothing more than, in the argument that we heard earlier today, it is more or less conceded that if the Confirmation Act is valid, then it renders the appeal otiose.

GAGELER CJ: Thank you. Mr Begbie, you support this application, you have nothing to add? Mr Walker, as I understand it from what you said earlier today in another case and what you have written in this matter, that you accept that, in your words, the revocation stands or falls with the validity of the Act.

MR WALKER: Yes.

GAGELER CJ: In those circumstances, the Court will reserve its decision on the application for the revocation of special leave to appeal in this matter and will

otherwise adjourn until 10.00 am tomorrow for the delivery of judgments in other cases.

AT 2.27 PM THE MATTER WAS ADJOURNED

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the admissibility of evidence obtained from a search of a mobile phone. The appellants, CD and another individual, sought to exclude evidence derived from their mobile phones, which had been seized and searched by police pursuant to a search warrant. The Director of Public Prosecutions (DPP) opposed the exclusion of this evidence.

The central legal issue before the High Court was whether the search of the appellants' mobile phones, conducted without a specific warrant authorising the search of digital data, was lawful under the relevant South Australian legislation, specifically the *Summary Offences Act 1953* (SA). This involved determining the scope of police powers to search electronic devices seized under a warrant for physical items.

The Court reasoned that the statutory framework did not grant police the power to search the contents of a mobile phone without a specific warrant authorising such a search. The power to seize a physical item under a warrant did not extend to a general power to search its digital contents. The Court emphasised that the privacy interests inherent in digital data required clear legislative authorisation for its intrusion. Consequently, the search of the mobile phones was found to be unlawful, and the evidence derived from it was excluded.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established