News - Communicating with your solicitor: a "reasonable excuse" for not providing police access to your phone

Barbaro v Queensland Police Service [2020] QDC 39 was an appeal which was allowed on 20 March 2020.

The appellant was convicted of an offence under s 205A of the Criminal Code for contravening an order about providing device information in relation to a digital device.  Specifically, the appellant had refused to disclose access information for his iPhone even though there was a warrant, signed by a Magistrate, containing an order to provide the iPhone access information.

The appellant was, at the time the warrant was executed, the subject of an investigation into drug offending.  As well, he had been the subject of other legal proceedings.  He was someone who had been in communication with his solicitors routinely using his iPhone and its various functionalities, including text messaging, email, and Facebook messenger.

The appellant argued that the Magistrate who convicted him had erred in concluding that a claim of legal professional privilege was not a reasonable excuse for contravening an order to provide the iPhone access information.  His claim was that he was entitled to the protection of legal professional privilege in relation to some of the contents of his mobile phone, namely his communications with his solicitors.

His Honour, Kent QC DCJ, concluded (at [36]):

The legislation did provide for a reasonable excuse … 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 that basis the conviction was set aside.

It is important to note that the appellant had not raised his claim of legal professional privilege at the time of the execution of the warrant.  This did not matter, because it was accepted that the claim can be made subsequently.[1]

 Written by Michael Finch, Senior Associate, Criminal Law Division

email/michael)(oreillystevens.com



[1] Barbaro v Queensland Police Service [2020] QDC 39, [35].