Commissioner of Police v Barbaro [2020] QCA 230

At the trial in the Magistrates Court, the prosecution led evidence to prove the facts set out above, none of which was disputed. The respondent gave evidence. He said that the reason he had refused to reveal the password was that he had been in the habit of using the phone to communicate with his solicitor by using various text messaging systems on his phone. The phone contained numerous privileged written communications between the respondent and his solicitor and he did not wish police to read these messages. This evidence was not challenged. The respondent claimed at his trial that his right to protect privileged information constituted a reasonable excuse for his refusal. For reasons that it is unnecessary to detail, the learned Magistrate rejected this defence and found the respondent guilty.

The respondent appealed to the District Court and Kent QC DCJ upheld his appeal. In substance the respondent submitted, and Kent QC DCJ accepted, that he was entitled to maintain his privilege against disclosure of certain of the information even if other information contained on the phone was not privileged and this claim constituted a reasonable excuse for his refusal. His Honour set aside the conviction.

The Commissioner of Police has applied for leave to appeal against that decision. She submitted that leave to appeal should be granted because the appeal would raise an important question of law. That submission should be accepted and leave to appeal should be granted.

As the appellant has framed her case, the question in this appeal is whether, as a matter of law, the respondent’s asserted reason for refusing to give up his password was capable of constituting a reasonable excuse. The Commissioner submitted that Kent QC DCJ failed to take into account that legal professional privilege could not have attached to all the information stored on the phone. In her written submissions, the Commissioner submitted that unless the respondent was able to claim that all of the information on the phone was privileged, “the dominant purpose test cannot be satisfied and the privilege cannot be relied on to prevent a compulsory process for the obtaining of evidence” (italics in the original). The Commissioner pointed out, correctly, that the respondent’s claim did not go so far as to assert that all the information on the phone was privileged nor did his evidence identify the documents over which he claimed privilege. In this latter respect the Commissioner relied upon Interchase Corporation Pty Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 2)² and Barnes v Commissioner of Taxation.³ It was submitted that because privilege could not attach to all of the documents on the phone it followed that a claim of privilege could not be relied upon as a reasonable excuse to refuse to disclose the password.

Those submissions should not be accepted.

It has been established that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice. The right to refuse to disclose information extends to a right to resist giving information required by a search warrant.⁴

Three things can be said about the expression “reasonable excuse”. First, the word “reasonable” connotes that the excuse must be objectively reasonable. Second, whether something is “reasonable” will depend not only upon the particular facts of the case but also upon the statutory context in which the word appears. Third, although it need not be the only reason, the asserted reasonable excuse must actually be a person’s reason for withholding the access information.

In this case the word appears in a search warrant pursuant to which police were endeavouring to obtain evidence, including in the form of written information, that might tend to prove the commission of offences by the respondent. The mobile phone in this case was one of the kinds of things expressly referred to in the warrant as a “storage device” that might contain “stored information” and the warrant expressly empowered a police officer to look at that information “to find out whether it may be evidence of the commission of an offence”. In this way, the service of the warrant upon the respondent, the seizure of his phone and the demand for the password that would unlock the phone constituted an unmistakeable assertion by police that they intended to read the information contained on the phone including any privileged information as soon as that was practicable.

There are some instances in which a search warrant does not constitute an imminent threat to read information over which a claim of privilege is asserted. Sometimes the threat is not present because the warrant does not authorise investigators to examine or read seized material but only authorises the seizure of things which must then be handed forthwith to a judicial officer: Allitt v Sullivan,⁵ a decision of the Full Court of the Supreme Court of Victoria, was concerned with a warrant of that kind. Sometimes there is an understanding about how privileged materials seized under a warrant will be handled. The Queensland Law Society and the Queensland Police Service have agreed on a protocol which governs the execution of search warrants in solicitors’ offices.⁶ That protocol establishes certain procedures which ensure that the seizure of documents from a solicitor’s office will not imperil a valid claim for privilege. The Queensland Police Operational Procedures Manual⁷ makes formal provision for procedures that police must follow in such cases.

In this case the demand made of the respondent 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.

The context in which the words “reasonable excuse” appear in this case is of significance to the result of the appeal. The words appear in the warrant because a statute required that they be used to qualify the otherwise absolute terms of the obligation of disclosure that the warrant imposed upon the respondent. This search warrant was part of the investigative pre-trial process of the criminal law, the function of which is to authorise the seizure of material that will implicate a person in the commission of an offence.⁸ This is a process that is intended to yield evidence which can be tendered by the prosecution to obtain a conviction.⁹ Undoubtedly, some of the best evidence of that kind might well be found in what an alleged offender has confided to a lawyer. Yet such material is held to be immune from disclosure because the ability of a client to confide freely in a lawyer is regarded by the law as indispensable to the functioning of our legal system.¹⁰ It is in the public interest that candid communications be permitted between lawyers and their clients and it is for this reason that privileged communications are protected against disclosure. Indeed, so important is this principle that the improper disclosure of communications that are the subject of privilege might even result in criminal proceedings being stayed.¹¹

The appellant’s submissions, that the respondent did not go so far as to claim that every piece of information on the phone was privileged, thereby failing to satisfy the dominant purpose test, and that the respondent failed to identify the privileged documents, are beside the point.

The dominant purpose test established by Esso Australia Resources Ltd v Federal Commissioner of Taxation¹² is concerned with the question whether legal professional privilege attaches or does not attach to a particular piece of information. It is irrelevant to this case because the existence of privilege over at least some of the documents on the phone has been accepted. Nor do cases like Interchase Corporation Pty Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 2)¹³ have anything to do with the matter. Interchase was concerned with the extent to which a privileged document must be described in an affidavit of documents for the purpose of the process of disclosure of documents in civil litigation.

In this case, for the reasons given, the respondent 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 was 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 the respondent 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. There were no extraneous factors that might have rendered his refusal, at that time, unreasonable.

That is not to say that the result will always be the same when police require access information to enable them to examine the contents of a mobile phone. It will not always be a reasonable excuse to refuse to disclose access information just because the phone contains privileged information. Everything will depend upon the circumstances. Police remain free to seize a phone, provided the warrant authorises such seizure, and the presence of privileged information on a phone may cease to constitute a reasonable excuse if circumstances change, such as the making of adequate arrangements to ensure that their search of the phone is done in a way that does not involve breaching privilege. In any case, it will be for the person claiming the excuse to establish the claim for privilege if the claim is contested. The respondent did so here.

I respectfully agree with Kent QC DCJ that the respondent was entitled to prevent police reading his privileged material and, in the circumstances of this case, his entitlement was a reasonable excuse for his refusal to give access to the contents of his phone.

I would dismiss the appeal.

For these reasons, the orders of the Court should be:(a)Grant leave to appeal.(b)Dismiss the appeal.

PHILIPPIDES JA: I agree with the orders proposed by Sofronoff P for the reasons given by his Honour.

MULLINS JA: I agree with Sofronoff P.

⁷Operational Procedures Manual, Issue 77, Public Edition, as at 31 July 2020. See especially: Chapter 2.8.5, ‘Execution of Search Warrants on the Premises of Lawyers’, at 93 et seq. ↩ ↩²

⁸cf. Baker v Campbell (1983) 153 CLR 52 at 81. ↩ ↩²

⁹Ibid. ↩ ↩²

¹⁰Ibid, at 94 per Wilson J; see also Deane J, at 115-116. ↩ ↩²

¹¹See eg. R v Leach [2019] 1 Qd R 459, a case about self-incrimination privilege. ↩ ↩²

¹²(1999) 201 CLR 49 at [61]. ↩ ↩²

¹³Supra. ↩ ↩²