Do I have to give Police my phone PIN code?

The following is a case summary and is not intended to be relied upon as legal advice, or considered as such.

Decision: Barbaro v Queensland Police Service [2020] QDC 39

Delivered on: 20 March 2020

Delivered at: Queensland District Court at Southport

Question: is a legitimate claim of legal professional privilege a reasonable excuse to not comply with a police direction to provide access to a phone? [14].

Answer: Yes [36].

Background: When the Appellant, Mr Barbaro, was subject to a search under a warrant pursuant to the Police Powers and Responsibilities Act 2000 (Qld), his iPhone was discovered [1]. Police informed Mr Barbaro of their power to demand access to information, and demanded that Mr Barbaro provide the PIN code to comply with that demand [2].

Mr Barbaro refused, and was charged for one count of contravening an order, pursuant to s. 205A of the Criminal Code 1899 (Qld), which provides:

205 A Contravening order about device information from digital device
(1) A person who, without reasonable excuse, contravenes—
(a) an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1);
[…]
commits a crime.
Maximum penalty—5 years imprisonment.
(2) It is not a reasonable excuse to contravene the order on the basis that complying with the order might tend to incriminate the person or expose the person to a penalty.

Mr Barbaro was subsequently convicted of this offence at the Magistrates Court. He appealed this conviction to the District Court.

At the time of being charged with the offence, s. 205A did not read as it appears, above [9]. Of particular importance, and missing from the original section, is the qualification “without reasonable excuse”. However, the trial and subsequent appeal were conducted on the basis that such a defence was available [13] in other relevant legislative provisions [8 - 12].

The appeal was therefore centred around whether the Magistrate erred in concluding that the claim of legal professional privilege was not a reasonable excuse [14].

Police, at trial, admitted to having known Mr Barbaro and his lawyer communicated about current and impending legal proceedings [3]. Mr Barbaro gave evidence about a long relationship with his lawyer, and his regular, weekly contact with his lawyer using his iPhone and the text, email, Facebook and Messenger applications within it [4].

The Court considered a similar provision found in the Crimes Act 1914 (Cth), which was subject of the Federal Court of Australia’s decision in Luppino v Fisher (No. 2) [2019] FCA 1100 [26]. There, his Honour Justice White found the distinction between disclosure of information (phone data) and disclosing access information (phone PIN) was an artificial one (at 33); and nevertheless had the potential to abrogate self-incrimination privilege [26 -7].

Outcome: Ultimately, his Honour Judge Kent QC found Mr Barbaro’s arguments must be accepted [36]. The claim for legal professional privilege applied in the circumstances (and on a basis which was not contradicted or fanciful). Mr Barbaro’s appeal was allowed and his conviction was set aside [39].

Application: It would appear (subject to any future legislative amendments) that where, in the face of an order to provide a passcode, a claim to legal professional privilege is founded and legitimate, this may well fall within the ambit of “reasonable excuse” as provided by the legislation, in refusing to comply with that order.