Commissioner of Police v Barbaro

During the execution of a search warrant at the respondent’s premises, police officers ordered the respondent to provide them with the password to his phone. The respondent refused on the basis that the phone contained privileged communications between him and his solicitor, as disclosure of the password by the respondent would have put the police officers in a position to immediately read the privileged information. On that basis, the Court determined that it amounted to a reasonable excuse to refuse to obey the order. Although the appeal was dismissed, the Court cautioned that each case will however turn on its own facts, and it will not always be a reasonable excuse to refuse to disclose access information just because a phone contains privileged information.

Sofronoff P and Philippides and Mullins JJA

27 October 2020

Background

On 22 May 2018, police obtained a warrant from a Magistrate to search certain premises on the Gold Coast. The warrant authorised police 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”, including mobile phones. [1].

The warrant also expressly required that the “specified person” allow a police officer to “examine the stored information to find out whether it may be evidence of the commission of an offence” and to copy such information. [1].

While executing the warrant, the police officers found a mobile phone that belonged to the respondent. The respondent was ordered by a police officer to provide the password to unlock the phone. The respondent refused to give the password and was charged under s 205A of the Criminal Code 1899 (“the Code”). [4].

Relevant legislation

Section 154(1) of the Police Powers and Responsibilities Act 2000 (“the Act”) relevantly provides as follows:

“If the issuer is a magistrate or a judge, the issuer may, in a search warrant, order a specified person to do any of the following in relation to a storage device in the person’s possession, or to which the person has access, at the place—

(a) to give a police officer access to the storage device and the access information and any other information or assistance necessary for the police officer to be able to use the storage device to gain access to stored information that is accessible only by using the access information;”

“Storage device” is defined in s 150AA of the Act to include a mobile phone. [2]. Section 150AA also defines “access information” to include a password used to access the content of a mobile phone. [2].

Section 156(3) provides that the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under s 205A of the Code.

The effect of s 154(1) of the Act and s 205A of the Code “is that the order is one which requires a person to furnish access information unless the person has a reasonable excuse to refuse to do so”. [3].

Evidence that the phone contained material subject to legal professional privilege

At the trial, the respondent gave evidence that he refused to give his password as the phone contained privileged communication between the respondent and his solicitor. The learned Magistrate rejected this defence and found the respondent guilty. [5].

District Court Judge Kent QC upheld the respondent’s appeal, finding that the respondent was entitled to maintain his privilege against disclosure of certain information on the phone, even though other information on the device was not subject to privilege. [6].

The question raised by the Commissioner of Police’s appeal was whether the respondent’s reason for not providing his password was capable of constituting a reasonable excuse. The Commissioner submitted that privilege could not be relied on as a reasonable excuse to refuse to disclose the password as privilege did not apply to all the material on the phone. [8].

Court of Appeal

Dismissing the appeal, Sofronoff P (with whom Philippides and Mullins JJA agreed) observed that the right to refuse to disclose information protected by legal professional privilege, extended to a right to resist giving information required by a search warrant. [10].

The service of the warrant upon the respondent, the seizure of his phone and the demand for the password amounted to an “unmistakeable assertion” that the police officer intended to immediately access the information on the respondent’s phone, including any privileged information. [12].

In respect of the expression “reasonable excuse”, Sofronoff P provided that:

• the word “reasonable” requires the excuse to be objectively reasonable;
• whether something is “reasonable” depends upon the facts of the case and the statutory context in which the words appear; and
• the reasonable excuse must be the person’s actual reason for not providing access to the material. [11].

The expression “reasonable excuse” operated as a limitation on the respondent’s obligation of disclosure. Sofronoff P stated that, “ … the ability to confide freely in a lawyer is regarded by the law as indispensable to the functioning of our legal system”. [15]. The respondent’s refusal to provide the password was the only way to protect the confidentiality of the material. It was therefore a reasonable excuse. [18].

It is not the case however that the presence of privileged information on a phone will always provide a reasonable excuse to refuse to disclose the relevant access information. In some instances, for example, the warrant will not provide a mechanism for the police to immediately read information over which a claim of privilege is asserted, such as where the warrant requires material to be seized and provided directly to a judicial officer (see Allitt v Sullivan [1988] VR 621). [13]. It will depend on the circumstances of the case. [19].

A Hughes of Counsel