Barbaro v Queensland Police Service
[2023] QSC 116
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- Notable Unreported Decision
- Barbaro v Queensland Police Service[2023] QSC 116
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Barbaro v Queensland Police Service[2023] QSC 116
Barbaro v Queensland Police Service[2023] QSC 116
SUPREME COURT OF QUEENSLAND
CITATION: | Barbaro v Queensland Police Service & Anor [2023] QSC 116 |
PARTIES: | HARLEY JOE BARBARO (applicant) v QUEENSLAND POLICE SERVICE (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) |
FILE NO/S: | BS15016 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Originating application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 2 June 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 May 2023 |
JUDGE: | Hindman J |
ORDER: | The originating application is dismissed. Direct the parties make any written submission as to the costs of the proceeding, limited to three pages, within 7 days. |
CATCHWORDS: | CRIMINAL LAW — CONSTRAINTS OF SEARCH WARRANT — GENERALLY — Criminal Law — Procedure — Warrants, search, seizure and incidental powers — Warrants — Search warrants — Generally, issue and validity — Validity — Thing for which warrant may be issued — Whether thing must itself be evidence of commission of offence — Warrant granted to obtain evidence of the commission of an offence — whether s 150(1) PPRA constrains search warrants — Where device may not exclusively contain material relevant to the offence named in warrant Police Powers and Responsibilities Act 2000 (Qld), ss. 149A, 150, 151, 154, 156, 157 Crowley v Murphy (1981) 52 FLR 123, cited George v Rockett (1990) 170 CLR 104, cited R v Davis [2023] QSC 112, cited R v Mohamed, Chaarani and Moukhaiber [2019] VSC 72, cited R v Rigney-Hopkins [2005] QCA 275, cited R v Smith [2016] QDC 62, cited |
COUNSEL: | M Longhurst for the applicant M Nicolson for the first respondent AB Johnson for the second respondent |
SOLICITORS: | Molony MacCallum Lawyers for the applicant Crime and Intelligence Legal Unit, Queensland Police Service, first respondent Crime and Corruption Commission, second respondent |
The nature of the proceeding
- [1]The applicant applies by way of originating application for the following orders:
- (a)a declaration that the search warrant issued on 3 March 2022 at Southport Magistrates Court, in relation to the address of [redacted] is invalid;
- (b)an injunction restraining the respondents, their servants and agents, from inspecting, using, relying on or otherwise taking into account any property seized pursuant to a search warrant issued on 3 March 2022 at Southport Magistrates Court, in relation to the address of [redacted] (‘the Seized Property’) or any data, other evidence or information derived from the Seized Property.
- [2]Although the originating application is in very wide terms, what the applicant is concerned to prevent is a completely unconstrained search of the applicant’s mobile phone that was seized pursuant to the search warrant.
- [3]None of the parties contend in the proceeding, nor is it the position at law, that the search warrant permits a completely unconstrained search of the applicant’s mobile phone that was seized pursuant to the search warrant. There seems to be more agreement between the parties about matters underlying the originating application than disagreement.
- [4]In the result, the originating application is dismissed.
Relevant legislation
- [5]Chapter 7 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) relevantly concerns search warrants.
- [6]Section 150(1) provides:
- A police officer may apply for a warrant to enter and search a place (a search warrant) -
- (a) to obtain evidence of the commission of an offence;
- [7]Relevantly for s. 150(1)(a), a search warrant can only be issued if (s. 151):
- The issuer may issue a search warrant only if satisfied -
- (a) there are reasonable grounds for suspecting the evidence … mentioned in section 150(1)(a) … is -
- (i) at the place; or
- (ii) likely to be taken to the place within the next 72 hours;
- …
- [8]The search warrant is required to state (s. 156):
- (1) A search warrant must state -
- …
- (b) if the warrant is issued in relation to -
- (i) an offence - brief particulars of the offence for which the warrant is issued;
- …
- (c) the warrant evidence or property that may be seized under the warrant;
- …
- [9]Warrant evidence or property is defined in s. 149A to mean:
- the evidence or property mentioned in section 150(1) for which a warrant is issued under section 151.
- [10]The powers given under a search warrant are set out in s. 157 and include:
- (a) power to enter the place stated in the warrant;
- …
- (h) power to seize a thing found at the relevant place … that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates;
- …
- [11]
- If the issuer is a magistrate or judge, the issuer may, in a search warrant, order a specified person to do any of the following in relation to a digital device at the place -
- …
- (c) allow a police officer to -
- …
- (ii) examine device information from the device to find out whether the information may be relevant information;
- …
- [12]Relevant evidence is defined in s. 149A to relevantly mean:
- evidence of the commission of an offence;
- …
Background facts
The issue of the search warrant
- [13]The Southport Magistrates Court of Queensland issued a search warrant on 3 March 2022, after hearing a sworn application by a police officer, having been satisfied that there were reasonable grounds for suspecting that warrant evidence or property was at an identified address. The search warrant was issued pursuant to s. 151 in response to an application made pursuant to s. 150.
- [14]The search warrant was issued in relation to the following identified offence as particularised in the search warrant (s. 156(1)(b)(i)):
- Criminal Code 1899 (Qld) section 339 - Assaults occasioning bodily harm
- That on the 28th day of February 2022 at Helensvale in the State of Queensland one Harley Joe BARBARO unlawfully assaulted one Dale James MOORE and thereby did him bodily harm
- and Harley Joe BARBARO was armed with a dangerous weapon and Harley Joe BARBARO was in the company with Matthew Stephen HUTCHINS, Sonny Brandon JENKINS, Darren James WATSON and Luke MAKSOUD
- and further at the time of the commission of the offence the said Harley Joe BARBARO was a participant in a criminal organisation within the meaning of section 161O of the Penalties and Sentences Act 1992 and the said Harley Joe BARBARO knew the offence was being committed IN ASSOCIATION WITH 1 OR MORE PERSONS NAMELY Matthew Stephen HUTCHINS, Sonny Brandon JENKINS, Darren James WATSON
- WHO WERE AT THE TIME THE OFFENCE WAS COMMITTED OR AT ANY TIME DURING THE COURSE OF THE COMMISSION OF THE OFFENCE PARTICIPANTS IN A CRIMINAL ORGANISATION
- [15]Details of the warrant evidence or property that could be seized under the search warrant was identified in the search warrant and included:
- 1 x Mobile phone with phone number [redacted]
- [16]The search warrant went on to record an order about device information from the digital device (namely, the mobile phone). That order was one made pursuant to s. 154.
The execution of the search warrant
- [17]The police executed the search warrant on 4 March 2022. Police officers seized a number of items, including the mobile phone identified in the search warrant. The mobile phone is asserted by the applicant to belong to the applicant.
- [18]At the time of the execution of the search warrant the applicant refused to give police officers access to the contents of the mobile phone and made a claim for legal professional privilege over the mobile phone.
- [19]The respondents have recovered data from the mobile phone, that has not been examined by police pending the parties agreeing a procedure as to how the applicant’s claim of legal professional privilege is to be resolved.
The applicant’s concerns
- [20]The applicant is concerned that the police are of the view that the search warrant authorises them to engage in a completely unconstrained search of the mobile phone, for evidence relating to the commission of any offence whatsoever. The applicant contends if that is the proper construction of the search warrant then the search warrant itself is unlawful or invalid and the relief sought by the originating application ought be granted.
- [21]Whatever the basis for the applicant’s concerns, I do not consider those concerns properly reflect either the respondents’ position in the proceeding or the law.
The constraintson the search of the mobile phone
- [22]It is well-established that a statutory power must be exercised for the purposes for which it was granted. Davis J referred to the relevant principles in the recent case of R v Davis [2023] QSC 112 at [43]-[51] including (footnotes omitted):
- [43]It is well-established that a statutory power must be exercised for the purposes for which it was granted. In Swan Hill Corporation v Bradbury, Dixon J (as his Honour then was) said:
“... it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred.”
- [44]In O'Reilly v State Bank of Victoria Commissioners, the High Court considered powers vested in the Commissioner of Taxation to access buildings and documents for the purpose of an investigation. The High Court said of that power:
“Like all statutory powers, that power must be used bona fide for the purposes for which it is conferred and that involves that its exercise be not excessive in the circumstances of the case.”
- [45]That statement was followed by the Full Federal Court in Deputy Commissioner of Taxation v De Vonk. There, the Commissioner of Taxation had used coercive powers to obtain information. The relevant statutory provision did not expressly limit the purposes for which the power could be exercised. However, the Full Court observed:
“… it may readily be accepted that where a coercive power such as s 264 has been conferred, that power may only be exercised bona fide for the purpose for which it was conferred.”
- [46]Various other cases concerning the use of documents seized in exercise of statutory powers have confirmed and applied such a principle.
- [23]Here, when s. 154(1)(c)(i) permits the examination of data from a mobile phone, it permits the examination to be carried out for the purpose of identifying relevant evidence. That links back (by way of the definitions) to the commission of an offence, which must be the “an offence” mentioned in s. 150(1)(a) and which is stated in the search warrant pursuant to s. 156(1)(b)(i). In that way, the object of the search warrant is known and the scope of the warrant is limited.[3]
- [24]The provisions cannot be sensibly read so that once a search warrant is obtained and the relevant mobile phone seized, an examination of the mobile phone can be carried out for the purpose of identifying evidence in relation to any offence whatsoever. Thepolice are empowered by s. 154(1)(c)(ii) to examine data from the mobile phone to find evidence relevant to the identified offence.
- [25]Whether that requires every piece of data on the mobile phone to be individually examined or not will be determined by reference to the nature of the identified offence. In respect of some offences, it could be foreshadowed that a very narrow and directed search of the data on the mobile phone is appropriately carried out; in respect of others, a very wide search may be appropriate. At least to some extent it would be expected that in nearly all cases the police would have to have some general idea of the whole of the data captured from the mobile phone so that appropriate searches can be undertaken.[4] But there could be cases where if all that is being undertaken is in effect a “negative” search of data on the mobile phone that plainly has nothing to do with the identified offence, that would exceed the limits of the authorised search.[5]
- [26]There appears to be no dispute between the parties that as long as the purpose of the examination of the data from the applicant’s mobile phone is proper, it is not the case that if the police happen upon some data which is indicative of some other offence having been committed, that the police are obliged to ignore same. That is not the position in a physical search of a place (s. 196)[6] and it is not the position in an electronic search.
Monitoring of the electronic search
- [27]The parties are also agreed that in circumstances where a search of the data from the applicant’s mobile phone is to be carried out under the search warrant, it is appropriate that the applicant have some visibility into the search process so as to ensure that the proper purposes of search authorised by the search warrant are not exceeded. That seems to me to be eminently sensible.
- [28]Submissions made for the police have confirmed that the police agree to record the details of searching of the data from the applicant’s mobile phone undertaken, that will be provided to the applicant. In light of those submissions, I do not consider it necessary to consider making orders to that effect. It is appropriate that police keep a careful contemporaneous record of (I would suggest without being binding): who is searching, what is searched, the extent of the search, the time of the search, the purpose of the search, the duration of the search, and the results of the search.
Outcome
- [29]The search warrant is not unlawful or invalid. It does not permit a completely unconstrained search of the seized mobile phone.
- [30]It is not appropriate for me to constrain how the police exercise their powers under the PPRA in their search of the data from the seized mobile phone when they have not yet even had an opportunity to inspect the data from the mobile phone and identify what searches ought be undertaken (given the unresolved issue about legal professional privilege).
- [31]The court is well capable (particularly where comprehensive search records are kept) of dealing with any application made by the applicant for an exclusion of evidence obtained from an alleged improper search of the data from the seized mobile phone should those circumstances ever arise.
- [32]The originating application is dismissed and I direct the parties make any written submission as to the costs of the proceeding, limited to three pages, within 7 days.