When an unlawful phone search still makes it into evidence

Overview

A lost phone, a hospitalised accused, and an unauthorised police search: a new appeal decision is a useful reminder that not every unlawful or improper search will lead to exclusion under s 138 of the Uniform Evidence Law.

In Benson (a pseudonym) v The King [2026] VSCA 137, the Victorian Court of Appeal admitted evidence that police took from an accused’s mobile telephone without lawful authority. But because the officer was trying to work out whether the accused was a victim of crime, rather than exploiting the situation to investigate him, the impropriety was treated as relatively low in gravity.

The broader takeaway is practical and important: purpose matters. In the s 138 balancing exercise, courts may look closely at why investigators acted as they did, not just whether the evidence was obtained unlawfully.

Background facts

The accused had been injured and suffered memory loss after falling from an electric scooter. He was hospitalised.

During the fall, he dropped his mobile telephone. A passer-by discovered that phone and handed it in to police.

Police accessed the phone (without the accused’s permission) for the purpose of determining whether the accused had been a victim of crime. During this search, police located photographs relevant to alleged firearms and drug‑related offending.

Based on what police had found on the phone, they executed a search warrant at the accused’s home, and there found many items that gave rise to the charges on indictment.

Application to exclude

At trial and on appeal, the accused sought to exclude the phone evidence under s 138 of the Evidence Act 2008 (Vic). Section 138 is concerned with excluding illegally or improperly obtained evidence. It involves two steps: first, whether the evidence was in fact illegally or improperly obtained; secondly, if it was, whether the desirability of admitting the evidence outweighs the undesirability of admitting illegally or improperly obtained evidence.

The accused argued that the search of his phone was unlawful, alternatively improper.

The trial judge made the factual finding, unchallenged on appeal, that the police officer was accessing the phone for the purpose of determining if the accused was a victim, and not for the purpose of investigating the accused. This was one of the bases on which the trial judge refused to exclude the evidence.

The evidence was not excluded

The Court of Appeal upheld the trial judge’s decision. The Court accepted that the police search was unauthorised, and therefore improper and/or illegal. However, the gravity of the impropriety was assessed as low, because:

• police were acting to determine whether the accused was a victim, not a suspect;
• the search was not motivated by investigative opportunism; and
• there was no systemic or deliberate disregard of legal rights or obligations.

The Court held that the intention or purpose of the person who committed the relevant impropriety or contravention is material to assessing the gravity of that impropriety (at [70]).

This was balanced against the Court’s view that the phone evidence was highly probative of the charged offences.

The proper appeal test (skip this paragraph if you do not care about review standards!)

Those who enjoy appellate law will be aware that there is an open question of whether an appeal concerning a determination under s 138 requires an appellant to demonstrate a House v King error – as opposed to the appeal court simply substituting what it considers is the correct decision.

It was not necessary for the Court of Appeal to resolve this issue (since the Court considered the trial judge’s decision as the correct one). But, the Court did offer some obiter comments at [51]: it considered that the correctness standard is the appropriate standard of appellate review. The Court applied authorities from the ACT to this effect.¹

Take-aways

The decision does not give investigators a free pass, but it does mean that evidence obtained through an unauthorised search may still be admitted where the misconduct is not deliberate, opportunistic or systemic, and where the evidence is strongly probative.

• Defence lawyers should focus not only on illegality, but on the seriousness and character of the misconduct.
• Prosecutors will point to benign purpose, urgency, lack of opportunism, and high probative value.
• Police should not read this as a licence to search phones without authority — the decision turned heavily on the officer’s purpose and the trial judge’s factual finding.

---

1. Sidaros v The Queen (2020) 15 ACTLR 64, 78 [38] ((Burns, Elkaim and Loukas-Karlsson JJ); Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) (2025) 394 FLR 28, 30-31 [5] (McCallum CJ), 33 [22], 84 [47] (Mossop J), 62 [174] (Baker J). ↩︎