Queensland’s highest court has backed a Gold Coast bikie’s claim of legal privilege when he refused to give police access to his mobile phone because it contained privileged communications with his lawyer.
The Court of Appeal in Brisbane today dismissed an appeal by the Queensland Police Commissioner in its case against Gold Coast bikie Harley Joe Barbaro.
The court was told police executed a search warrant at Barbaro’s premises on 24 May 2018 and found a mobile phone that belonged to him.
Police then ordered Barbaro to immediately reveal the PIN to unlock the phone, but Barbaro refused and was arrested and charged with contravening an order of the warrant (pursuant to s205 of the Queensland Criminal Code).
During a two-day summary trial in the Southport Magistrates Court, lawyers for Barbaro argued that the biker declined to provide police with the PIN code because to do so would enable them to access legal and confidential information.
In particular, Barbaro was concerned that conversations including text messages, emails and Facebook messages between himself and his lawyer would be accessible by police.
The presiding magistrate ruled that Barbaro did not have a reasonable excuse to withhold the PIN from the police on the basis of legal professional privilege and found him guilty of the charge.
Barbaro appealed the decision in the Southport District Court and submitted that the magistrate had erred in concluding that the legal professional privilege must attach to the PIN itself and not the information contained on the phone.
Southport District Court Judge David Kent in March agreed, finding police legislation did not provide a reasonable excuse for asking Barbaro for his phone and that his claim to “legal professional privilege” was “not fanciful”.
The Court of Appeal, consisting of President Walter Sofronoff and Justices Anthe Philippides and Debra Mullins, today unanimously dismissed the Commissioner of Police’s appeal against Judge Kent’s ruling.
Justice Sofronoff, in a six-page decision, said: “In this case the demand made of (Barbaro) to reveal the password that would unlock his phone was made in terms that did not suggest that police accepted any limitation upon their powers of inspection of documents that they found on the phone
“Police were asserting a right to read every document on the phone.
“In this case…(Barbaro) was faced with an apparent demand by police for access to the contents of his phone, which, so far as one could tell by their actions, the police officers intended to read as soon as practicable.
“Disclosure of the password would have meant putting police officers in an immediate position to read the privileged information.
“The only way to protect the confidentiality of the privileged information was for (Barbaro) to deny access to the phone.
“The warrant was sufficient authority for police to take the phone away in order to preserve any evidence that might be on the phone so there was no risk that evidence might be lost.
“(However) there were no extraneous factors that might have rendered (Barbaro’s) refusal, at the time, unreasonable.”