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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Barbaro v Queensland Police Service  QDC 39
HARLEY JOE BARBARO
QUEENSLAND POLICE SERVICE
Magistrates Court at Southport
20 March 2020
5 March 2020
Kent QC, DCJ
CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – WARRANTS – SEARCH WARRANTS – GENERALLY, ISSUE AND VALIDITY – REASONABLE GROUNDS – where the applicant was ordered to provide the access information to a mobile telephone pursuant to a search warrant – where the applicant refused to do so and was convicted of contravening an order under s 205A of the Criminal Code – whether the applicant had a reasonable excuse for refusing to comply with the order – whether legal professional privilege was a reasonable excuse for the applicant’s refusal to comply with the order.
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESUMPTION AS TO LEGISLATIVE INTENTION – NOT TO ALTER COMMON LAW RIGHT, PRIVILEGE OR DOCTRINE – Whether legal professional privilege was open as a reasonable excuse for non-compliance with an order – Whether legal professional privilege would have been abrogated by the provision of access information to a mobile telephone in the circumstances.
Longhurst, M. for the Applicant
Baker-Smith, A. Office of the Director of Public Prosecutions for the Respondent.
Moloney, MacCallum Abdelshahied Lawyers for the Applicant
Queensland Police Service for the Respondent
- This is an appeal against a conviction for one count of contravening order pursuant to s 205A of the Criminal Code. The nature of the offence was that the appellant was the subject of a search by investigating police pursuant to a warrant obtained under the Police Powers and Responsibilities Act 2000. The issue is whether the appellant had a reasonable excuse, namely a claim of legal professional privilege, for refusing to disclose access information for his iPhone.
- In essence, the facts were that during the search police located the appellant’s mobile phone which was an iPhone. Detective Sergeant Lewis explained the provisions of the search warrant to the defendant and told him that the police had the power to demand access information. The phone had apparently received a number of calls whilst the police were present. Photographs of the screen of the phone were taken and tendered into evidence. The appellant told police that the iPhone belonged to him. When police were unable to access it in the absence of the PIN and Detective Sergeant Lewis made the demand, the appellant declined to provide the required PIN code.
- Detective Sergeant Lewis said in evidence that she had known the defendant for a number of years and had, in the course of her police work, listened to him engage in conversations. She was aware that Mr MacCallum was his solicitor and that the appellant communicated with him about current and impending legal proceedings.
- The appellant gave evidence at the trial, admitting to owning the iPhone and that he did not provide the PIN to the police. He said that Mr MacCallum had been his solicitor for some 15 years. He was regularly in contact with Mr MacCallum about legal matters, up to a couple of times per week. He communicated with his solicitors using the iPhone by text, email, Facebook and Messenger. When asked why he had not provided the PIN he said:
“Because I don’t seem to believe why I should provide it when we’re talking when I talk in private but it is of course available where legal advice or assistance is sought in respect of past crime, fraud or civil offence. With my lawyer – if I give up my password, what’s the point of even having a lawyer? Anyone can see – anyone can see what me and my lawyer are talking about and there’s no point even getting legal representation.”
- The warrant in issue was signed by a Magistrate on the 22nd May 2018 and executed on the 24th May. It provided for various powers that police may lawfully exercise pursuant to its authority. It set out brief particulars of the offence for which the warrant was issued, including possession of property, namely a mobile phone, having been acquired for the purpose of committing a drug offence. However, that was not the mobile phone here in question, because the phone described in the warrant was a Blackberry. The warrant named the appellant as a suspected offender.
- The information proceeds on the warrant as to what a specified person - and the warrant named the appellant (as the occupier of the premises and the person upon whom the warrant was executed, although not expressly as a “specified person”) – is to do in relation to a storage device. This included giving a police officer access to the storage device and the access information necessary to be able to use the storage device to gain access to stored information. The warrant orders a specified person inter alia to allow police access to use the storage device to gain access to stored information. The warrant points out that failure without reasonable excuse to comply with the order may be dealt with under s 205A of the Criminal Code.
- Thus the appellant was found to be a person who contravened an order made under the Police Powers and Responsibilities Act 2000, s 154(1)(A).
- A curiosity in this case is the form of the legislative provision which governs the appellant’s situation. The warrant was executed on 24 May 2018 and this is the day of the alleged offence. The matter has been conducted on the basis that, pursuant to s 205A of the Criminal Code, a relevant offence may be committed, as quoted on the warrant:
“Failure, without reasonable excuse to comply with this order may be dealt with under the Criminal Code, s 205A” (emphasis added)
- The version of s 205A which was in force at the time of the execution of the warrant did not contain the qualification set out in the warrant. It simply provided that a person who contravenes an order made under the Police Powers and Responsibilities Act, including s 154(1) commits a crime. It did not provide for a reasonable excuse. Further, s 154, the source of the power for a magistrate or a judge issuing a search warrant to make various orders, particularly in relation to access information as is presently under discussion, does not contain any qualification about a reasonable excuse. Notably, s 154A of the legislation provides for a separate scheme in circumstances where the digital device has already been seized. Where such a device is seized under a warrant and removed from the place of where it was, and further access information is required for police to gain access, the police may apply to a magistrate or a judge for an order requiring a specified person to do one of the things mentioned in s 154(1)(b) or (c) – essentially, provide the access information. However, s 154A provides that such an order may be made only if satisfied there are reasonable grounds or suspecting that device information from the digital device may be relevant evidence. Again, the order must also set out that failure to comply with it may be dealt with under the Criminal Code, s 205A.
- The subsection which at the time did provide for the idea of a reasonable excuse, relative to s 154, was s 156(3):
“(3) If a magistrate or a judge makes an order under section 153 or 154(1) or (2), the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under—
(a) for section 153—the Criminal Code, section 205; or
(b) for section 154(1) or (2)—the Criminal Code, section 205A” (emphasis added)
- Section 205A, in its present form, does contain the qualification as to a reasonable excuse, consistent with the wording on the warrant. The situation has been clarified by later amendments. Thus the legislative arrangements at the time were curious; the offence creating section provided for no such element (i.e. lack of a reasonable excuse), rather it was in a separate provision setting out what a warrant was required to state. The wording and heading of s 156 gives an impression of being intended to mandate the conveying of information rather than creating its own powers or responsibilities.
- The legislative force of this genesis of a reasonable excuse is not, with respect, very clear; it would normally be expected that such a provision, which is either an element of the offence (i.e. lack of a reasonable excuse) or a defence, would be found in the offence creating provision itself, or at least in the Criminal Code. Section 156(3) has more the appearance of an enforced notification, in the warrant, of a legislative qualification expressly set out elsewhere (which it was not).
- Nevertheless the trial, and the appeal, were conducted on the basis that such a defence was available, and the appellant understandably argues that, in context, the provision in the warrant as to lack of a reasonable excuse was a limitation properly imposed by the issuing Magistrate on the exercise of the powers pursuant to the warrant, particularly where the warrant “orders” specified persons to do certain things.
- Thus the appellant argues that the Magistrate erred in concluding that the claim of legal professional privilege was not a reasonable excuse.
The Magistrate’s reasoning
- His Honour approached the case on the basis that the onus was on the prosecution to prove beyond reasonable doubt that the defendant did not have a reasonable excuse when refusing to provide his PIN. His Honour then discussed the authority of Wassmuth v Commissioner of Police. This case assumed some importance in the reasoning, and thus bears some consideration.
- In Wassmuth, the search warrant had a similar provision to the present case. It was executed at the applicant’s residence and police located a mobile phone. The investigating police asked for the PIN which the applicant refused to provide. She was thus charged with and convicted of an offence under s 205 (not s 205A) of the Criminal Code, for disobeying a lawful order.
- The warrant contained an order pursuant to s 154(1)(a) of the PPRA requiring the applicant, in effect to provide the PIN.
- Notably the offence in that case was against s 205 of the Code, disobedience to lawful order issued by a statutory authority. Sub-section (1) provided:
“Any person who without lawful excuse, the proof of which lies on the person, disobeys any lawful order issued by any court of justice, or by any person authorised by any public statute in force in Queensland to make the order…”
- Thus Wassmuth was a case which expressly dealt with a lawful excuse, however the onus of proof was reversed.
- The argument there agitated for the applicant was that she had a “lawful excuse” within s 205, being the right to claim privilege against self-incrimination. One of the submissions was that the privilege against self-incrimination was not impliedly abrogated by s 154 of the PPRA. The applicant referred to X7 v Australian Crime Commission in which a plurality quoted Connor J in Potter v Minahan who in turn had quoted from Maxwell on Interpretation of Statutes:
“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or unnatural sense, would be to give them a meaning in which they were not really used.”
- As was observed in that case, privilege against self-incrimination is a substantive right or privilege, not merely a rule of evidence. Justice North (who wrote the leading judgment in Wassmuth) also referred to Lee v New South Wales Crime Commission to the general effect that in order to overthrow fundamental principles, infringe rights or depart from the general system of law, Parliament would be expected to express its intention clearly. Absent that clarity of expression, the courts will not construe a statute as having such an operation. Reference was also made to Coco v The Queen to similar effect.
- Justice North concluded his reasoning in relation to the privilege against self-incrimination essentially in the following passage:
“ Significantly in the context of this case it was s 205 that created the offence of which the applicant was convicted. That section had nothing in express terms to say about the privilege of self-incrimination but importantly it expressly contemplated a ‘lawful excuse’. Section 154 of the PPRA to like effect has no express statement touching upon the privilege. In my view the applicant had a lawful excuse for failing to provide to the police officer the access information to the phone. That lawful excuse was her right to insist upon her privilege not to incriminate herself by demonstrating the extent of her knowledge of the information necessary to access the phone and its data, and thus to demonstrate she knew how to use the phone and that she had used it and its PIN code. I am fortified in the conclusion I have reached by the amendments made by the Parliament subsequent to the events of which this court is concerned to insert provisions into the PPRA and the Code of which the former expressly refer to and in terms remove a person’s privilege against self-incrimination in this context.”
- In the result, then, the conviction was quashed because of the lawful excuse. His Honour’s remarks include the notable circumstance, that by the time of the decision, the legislation had been amended to expressly exclude the privilege against self incrimination; s154B of the PPRA. Conversely, of course, it has not been amended to exclude legal professional privilege.
The reasoning in the present case
- The Magistrate referred to Wassmuth. He noted that s 205 expressly contemplated a lawful excuse, and section 154 of the PPRA had no express statement touching upon the privilege. The Magistrate’s analysis was that this idea of the lawful excuse and Ms Wassmuth’s right to insist upon her privilege not to incriminate herself were critical in understanding the reasoning in Wassmuth. His Honour concluded that the privilege attached to her knowledge of the information necessary to access the phone’s data, and thus to demonstrate she knew how to use it, had used it and its PIN. His Honour however continued, in distinguishing the appellant’s situation from Wassmuth’s:
“By its very nature, legal professional privilege cannot attach in the same way to the requirement to provide the PIN number, although it may well be relevant to the contents of the phone itself. That is not the issue here. I therefore [sic, presumably “conclude” or similar] that the Crown has proved beyond reasonable doubt that it is not a reasonable excuse to refuse to provide the PIN to the phone when required to do so on the basis of a reasonable excuse pursuant to legal professional privilege, and I find the defendant guilty of the offence.”
- The appellant thus submits that this chain of reasoning is in error. It is argued that the distinction drawn between legal professional privilege attaching to the PIN itself, rather than the information contained on the phone, is an artificial and incorrect one. The appellant argues that the real question was whether the appellant had a reasonable excuse (via s156(3) and the terms of the warrant) to refuse to provide access information, as such information would allow police access to legal professional privilege protected information, which was stored on his phone.
- This submission is fortified by the appellant’s reference to Luppino v Fisher No.2. In that case Justice White of the Federal Court of Australia considered the potential abrogation of self-incrimination privilege by a similar access information order under the Crimes Act 1914 (Cth). His Honour said:
“ The abrogation may be indirect because the subjects of the order are required only to give access to a computer or data storage device containing the evidential material and not to disclose it themselves. It is nevertheless an abrogation. It would be artificial for a distinction to be drawn in the effect on the privilege between the compulsory disclosure of information, on the one hand, and the compulsory disclosure of the means by which information which is otherwise unascertainable or indecipherable may be read, on the other.”
- Thus the appellant submits that the distinction between disclosing access information and disclosing the information itself is an artificial one, as described in Luppino. The offence, as it is described in the warrant and s 156(3), is a failure without reasonable excuse to comply with the order, and necessarily the appellant argues that the reasonable excuse of the assertion of legal professional privilege was not excluded and the Magistrate reached the wrong conclusion on this point.
- The appellant submits that in the factual matrix as outlined above, he was entitled to the protection of legal professional privilege in relation to some of the contents of his mobile phone. This was not abrogated by the scope of the order in the search warrant. His denial of the access information was under a genuine concern as to privileged information. Further, that there was, as outlined in Luppino, no practical distinction between the provision of the access information and the information itself. The comparison is drawn with physical documents; for example, if the appellant had a letter from his solicitor as to his outstanding legal matters, it would attract privilege and, so it is argued, there is no true distinction between that example and the present case. Thus the appellant submits that the prosecution were in truth unable to exclude the appellant’s reasonable excuse beyond reasonable doubt which, so it is argued, was their obligation. This analysis compels the result that the Magistrate reached the wrong conclusion on this issue and the appeal should be allowed.
- I pause to note that, in the above analysis of the statutory provisions it is likely, but not completely clear, that the prosecution was required to exclude the reasonable excuse beyond reasonable doubt. The provision is different from that under consideration in Wassmuth, in which case the onus was reversed. There is no reversal of onus in s 156(3) thus it may well be that the lack of a reasonable excuse, as a matter of statutory interpretation, was an element of the offence (even though not mentioned in the offence-creating provision) which the prosecution were required to prove beyond reasonable doubt. I do not understand the respondent to be arguing to the contrary. Again, as outlined above, the arrangement of these statutory provisions at the time was somewhat curious. In contrast the present version of the section does seem to include the lack of reasonable excuse as an element.
- The respondent firstly points out the statutory framework for the appeal, pursuant to s 222 and s 223 of the Justices Act 1886 (Qld). As to the correct approach, reference is made to McDonald v The Commissioner of Police:
“…. on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.”
- As outlined above, the error focussed on here by the appellant is simply the wrong conclusion as to the failure of the prosecution to exclude the reasonable excuse.
- Returning to the respondent’s submissions, the factual overview is uncontentious as outlined above. One aspect of the matter which is identified by the respondent is that as the appellant’s phone was not seized, it might be argued that the claim of legal professional privilege did not in truth arise. However, as I understand the facts, this aspect is something of a distraction. The nature of the charge under s 205A is the appellant’s refusal to disclose the PIN upon demand. The offence was either committed or not committed at that time, i.e. when the demand was made. Whether the phone was later seized or not does not directly bear on criminal liability for that refusal.
- The respondent refers to some principles of statutory construction, in particular to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have and strive to give meaning to every word of the provisions.
- The respondent submits that “reasonable excuse” is not defined. It is argued that whether a reasonable excuse exists is a matter for an objective determination. The central idea which is engaged by the respondent is whether providing the access information is practically indistinguishable from failing to provide the privileged information itself to the police. The distinction is sought to be drawn between the access information and whatever the portion of the contents of the mobile phone were which would attract legal professional privilege. That is, the respondent submits that the phone contains much more than privileged information and thus the failure to provide the PIN does not attract a reasonable excuse. The respondent submits that legal professional privilege could not attach to the PIN itself, only the contents of the phone. Thus the respondent supports the reasoning of the Magistrate.
- The respondent also argues that the evidence is not perfectly clear as to the privileged nature of the information on the phone. Investigating Officer Lewis stated that she assumed that the appellant was in regular contact with his lawyer. She could not comment on whether the contents of the phone did contain privileged information because the phone was never seized. This submission however somewhat overlooks the feature that the express and uncontradicted evidence of the appellant was that he was aware that he was the subject of legal proceedings or investigations at the time of the execution of the search warrant; he was regularly in contact with Mr MacCallum about those matters, up to a couple of times a week. He communicated with his solicitors using the iPhone by text, email and Facebook Messenger. Even though the express discussion of legal professional privilege was not raised by the appellant at the time of the execution of the search warrant, the learned Magistrate concluded, correctly in my view, that the claim can be made subsequently.
- In my conclusion the arguments of the appellant must be accepted. The legislation did provide for a reasonable excuse, admittedly in the somewhat oblique way set out above. The appellant clearly made a claim to legal professional privilege, at least by the time of the trial, on a basis which is uncontradicted and not fanciful. On the analysis of Justice White in Luppino v Fisher, with which I respectfully agree, the distinction between the access information and the content, including the privileged material is an artificial one. The conclusion of the trial Magistrate to the contrary, in reliance on the reasoning in Wassmuth, was in my view in error, although I note, of course, in fairness to his Honour, that Luppino v Fisher post-dates the decision of the trial Magistrate. The conclusion is that the appellant has established a legal error and the conviction should be set aside. If Parliament chooses to make relevant amendments, as was mentioned in Wassmuth, the position may change in the future.
- The appellant does not seeks his cost of either the appeal or the trial. His representatives appeared pro bono and do not seek costs.
- Had there been an application, it may have been for the costs of trial only. For the costs of the appeal, s232 (4) of the Justices Act precludes recovery of costs, as the offence under discussion is a crime (s205A) and thus an indictable offence (Criminal Code s 3 (3)); see Flynn v Commissioner of Police Service, Tierney v Commissioner of Police (No. 2). However, s 225(3) empowers this court to exercise the power the Magistrate had as to costs, and s 158 and 158A allowed for such an award at first instance.
- In the result the order will be that the appeal is allowed and the conviction below set aside.
No submissions were made as to materiality or otherwise of this apparent omission
Police Powers and Responsibilities and Other Legislation Amendment Act 2020, s 13
 QCA 290.
(2013) 248 CLR 92.
(1908) 7 CLR 277 at 304.
Ibid at  and .
(2013) 251 CLR 196.
(1994) 179 CLR 427
 FCA 1100.
 QCA 255 at .
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 .
Crime and Misconduct Commission v WSX & EDC  QCA 152 at .
See Commissioner of Police Service v Nurter  QSC 119; Director of Public Prosecutions v Kane (1997) 140 FLR 468 at 479, 485.
 QDC 99
 QDC 33
- Published Case Name:
Harley Joe Barbaro v Queensland Police Service
- Shortened Case Name:
Barbaro v Queensland Police Service
 QDC 39
Kent QC DCJ
20 Mar 2020