Commissioner of Police v Deya [2025] QMC 9

[3] He was then charged with an offence under s.205A of the Criminal Code (Qld) for not complying with the Magistrate's order.

[4] The issue for determination by me is whether the reason related to his faith amounts to a "reasonable excuse" as set out in s.205A.

That on the 25th day of October 2024 at Inala in the State of Queensland one Afif Deya without reasonable excuse contravened an order made under section 154A(2) of the Police Powers and responsibilities Act 2000

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); or

(b) an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);

(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.

[7] None of the elements of the charge were admitted by the defendant and the prosecution bears the onus of proving the charge to my satisfaction beyond a reasonable doubt. Equally, I have been asked to proceed on the basis that once the "reasonable excuse" is raised it is for the prosecution to exclude it beyond reasonable doubt.

[8] In the evening of 11 August 2024 the defendant and two others were spoken to by Senior Constable Johnston and Senior Constable Ogden of the Inala Tactical Crime Squad at the Fruitgrove Railway Station carpark. When police arrived the three men were standing near a white BMW motor vehicle and appeared to be effected by cannabis. All three men were searched and things were seized from the defendant's associates.

[9] Senior Constable Johnston searched the white BMW and found 5 grams of cannabis in bubble wrap, a machete, a water pipe, an iPhone and $93,080 in cash wrapped in black plastic within the glove box of the car. All items were seized but the defendant was only charged that night with offences related to the small amount of cannabis and the water pipe. The defendant pleaded guilty at the start of the trial to these charges.

[10] The iPhone found in the car belonged to the defendant. The ownership of the machete was claimed by one of the other men. No one claimed ownership or knowledge of the cash. As messaging applications were seen on the iPhone during the search of the car, Senior Constable Johnston sought and obtained an order to gain access information. A magistrate granted that order on 27 August 2024.

[11] On 3 September 2024, Senior Constable Johnston attended at the residence of the defendant to serve him with the order. He was not at home but other family members were. The defendant's sister called the defendant on a mobile telephone and there was a discussion between Senior Constable Johnston and the defendant about the order. All of this was captured on a body worn camera. Over the telephone the defendant, when told about the requirement to give his access information, says "I don't remember my passcode" and made reference to photographs of his family members and that "you guys can't see those photos" as that would be haram or sinful in his religion. Senior Constable Johnston told the defendant to get legal advice about compliance with the order.

[12] On 25 October 2024 the defendant attended at the Inala Police Station to be formally served with the Order. He did not make any comment and was then served with a Notice to Appear for this charge.

[13] The defendant said he was a practicing member of the Islamic faith. He had attended the Islamic College of Brisbane and prayed five times a day. His whole family practiced Islam. His mother and his sister wear a hijab especially when they mixed with people outside their home. The defendant had photographs of his mother and sister on his iPhone when they were not wearing a hijab. Part of the defendant's religion would make it "haram" if he were to show other men, not in his family, any of those photographs.

[14] He gave evidence that he had heard previously that police could ask for passcodes to phones. He also knew that others had used the excuse related to photographs of females as a basis to refuse to comply. In re-examination he accepted that a female police officer could see the photographs and he could give the access code in those circumstances so long as it was a female.

[15] Imam Uzair Akbar of the Holland Park Mosque gave evidence about Islamic law, faith and practice. He holds extensive qualifications. His evidence could easily be regarded as expert evidence. His evidence was that within the different schools of Islamic jurisprudence the issue of a head covering for women was not contentious. Women must cover their heads in the form of a hijab when they are in the presence of men they can marry. In other words, men outside their family. He said it was considered a sin to appear without a head covering. He also said it was the responsibility of a brother to uphold and protect the honour of a female. In essence to share a photograph of a female not wearing the head covering or hijab would be sinful for the sharer and the female depicted. However, he could not say how these sins would be judged on the "day of judgment".

[16] The defendant referred me to two Queensland authorities that have dealt with s.205A of the Criminal Code, Commissioner of Police v Barbaro [2020] QCA 230 ("Barbaro") and Queensland Police Service v Ahmed [2023] QMC 2 ("Ahmed").

[17] Barbaro upheld a District Court decision that found that a defendant was entitled to prevent police reading privileged information on his phone, that happened to be covered by legal professional privilege, and in the circumstances of that particular case his entitlement was a "reasonable excuse".

[18] No blanket rule was established though as Sofronoff P remarks at [19]:

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.

[19] This present case does not involve a claim regarding privileged information. Other than some general principles the authority does not help me in deciding whether the excuse related to the defendant's faith amounts to a "reasonable excuse" as set out in s.205A.

[20] Ahmed was decided by a fellow Magistrate and is therefore not binding on me but helpful in the consideration of the applicable law. It dealt with facts that were very similar to the present case. There was a photo on the defendant's phone of his wife in an "uncovered" state and if this was viewed by the male police officers this would offend the defendant's Islamic faith. This was put forward as the reason for his refusal to give police access to his phone. The presiding Magistrate found in that particular case the excuse raised was a reasonable one and therefore found the defendant not guilty of the offence.

[21] The decision at [34] to [38] provides an excellent summary of the approach to take in interpretating the words "reasonable excuse" which I adopt:

[34] An offence against s 205 A of the Criminal Code will not be committed if the person charged has a "reasonable excuse" for non-compliance with an order to disclose access information concerning a digital device.

[35] The term "reasonable excuse" is commonly employed in legislation and bears its plain meaning. In Pascoe v Nominal Defendant (Qld) No 2, it was stated that the term means "a cause which a reasonable man would regard as an excuse."

[36] It was observed in Ganin v New South Wales Crime Commission that: There is no apparent reason to read down exemptions for 'reasonable excuse'...On the contrary, there is every reason to give the words their ordinary construction. They simply ask whether the refusal to answer the question was 'without reasonable excuse'...In accordance with orthodox cannons of construction these words would not be given a narrow meaning. They appear in a provision which imposes a criminal sanction for its breach.

[37] In Taikato v R it was noted that "what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of "reasonable excuse" is an exception."

[38] In Commissioner of Police v Barbaro, Sofronoff P conveniently distilled from those general principles, the following three requirements in order that "reasonable excuse" be made out: 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.

[22] The prosecution referred me to the Explanatory Notes to the Serious and Organised Crime Legislation Amendment Bill 2016 (Qld) that dealt with the earlier iterations of s.205 of the Criminal Code. The import of the notes is that the use of the power under s.154 of the Police Powers and Responsibilities Act 2000 (Qld) is an important and major investigative tool to combat serious criminal activity. The legislative framers noted this power was a departure in fundamental legislative principles including the infringements on rights and liberties of individuals. These matters were noted in one of the leading authorities for sentencing offenders under s.205A, Ross v Commissioner of Police [2019] QCA 96 at [19] , [20] and [43].

[23] Neither party to this matter could find any case where the intersection of religious freedoms and practices, and compliance with the law were discussed. After I had reserved my decision I forwarded the authority of Church of the New Faith v Commissioner of Pay-roll Tax (Victoria) [1983] HCA 40; (1983) 154 CLR 120 to the parties for their written submissions. That case is often known as the Scientology Case and considered, amongst other things, what is a religion?, religious freedoms and beliefs and whether those freedoms and beliefs gave rise to a legal immunity. Defence counsel provided submissions that I have considered.

[24] The wide ranging exploration of religion and its intersection with secular law distilled certain concepts that I apply in this matter. Mason ACJ and Brennan at page 130 note the starting point when considering a person practicing of their faith:

Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint.

[25] At page 132 their Honours discuss legal protections:

It is more accurate to say that protection is required for the adherents of religions, not for the religions themselves. Protection is not accorded to safeguard the tenets of each religion; no such protection can be given by the law, and it would be contradictory of the law to protect at once the tenets of different religions which are incompatible with one another. Protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none. The freedom of religion being equally conferred on all, the variety of religious beliefs which are within the area of legal immunity is not restricted.

[26] The limits on personal legal immunity are also determined by Mason ACJ and Brennan J and I will outline those later.

[27] The Court has no role in determining whether a particular belief or practice is true or not as was put at page 134:

Under our law, the State has no prophetic role in relation to religious belief; the State can neither declare supernatural truth nor determine the paths through which the human mind must search in a quest for supernatural truth. The courts are constrained to accord freedom to faith in the supernatural, for there are no means of finding upon evidence whether a postulated tenet of supernatural truth is erroneous or whether a supernatural revelation of truth has been made.

[28] Whether beliefs and practices afford an adherent to a religion a legal immunity from complying with a civil law is resolved at pages 135 to 137:

What man feels constrained to do or to abstain from doing because of his faith in the supernatural is prima facie within the area of legal immunity, for his freedom to believe would be impaired by restriction upon conduct in which he engages in giving effect to that belief. The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person's belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterized as religious.

But the area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act in accordance with one's religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them:cf. Cantwell v. Connecticut [1940] USSC 84; (1940) 310 US 296, at p 304 (84 Law Ed 1214, at p 1218) , Religious conviction is not a solvent of legal obligation. Thus, in Jehovah's Witnesses Inc. a prohibition against subversion of the war effort was not circumvented by the pacifist ideals of the Jehovah's Witnesses, and this Court rejected their challenge to the validity of the National Security (Subversive Associations) Regulations, even though s.116 protects both freedom of religious opinion and the free exercise of religion. In the United States, where similar constitutional guarantees are to be found in the First Amendment, the free exercise clause was held not to exempt the Mormons from the law forbiding polygamy, though they deemed it to be a religious duty, circumstances permitting, to practice polygamy. In Reynolds v. United States (1879)98 US 145, at p 167 [1878] USSC 141; (25 Law Ed 244, at p 250) , the Supreme Court held that to excuse polygamy on religious grounds would "make the professed doctrines of religious belief superior to the law of the land, and in effect . . . permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion.**

We would therefore hold that, for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.

[29] I have considered all of the evidence in coming to my conclusions. I have had the opportunity of observing the witnesses giving their evidence. Aside from my remarks below about the defendant not knowing his former passcode, the evidence overall can be given equal weight. This was not a case about credit in my view.

[30] I accept that I have no role in determining whether a particular belief or practice is true or not or must be followed or not. I therefore am happy to accept that the defendant's beliefs and practices are true for him. Further, despite his other "sins" of possessing cannabis and a bong I am also prepared to accept that he was a practicing member of the Islamic faith. This faith requires that only men for whom a women can marry can see a women without a hijab being worn. To disclose a picture of a woman without a hijab being worn to any other man including an unknown police officer would bring shame on the person disclosing it and effect the dignity of the woman. It would be classed as a major sin and therefore should be avoided.

[31] I also accept that whilst he did not disclose this to the police at the time of being served the order, he would be able to give his access code to his iPhone so long as only females accessed the information on it. That would avoid the infringement of his faith. These were the excuses principally relied upon at the trial.

[32] Whilst it wasn't pushed, I reject that he had forgotten his access code. He had only been without the iPhone for two months. He is a young man, 19 years old. Experience tells me that young people are often "wedded" to their phones. Forgetting your passcode so quickly is not believable.

[33] When considering all the authorities referred to, particularly the Scientology Case, I am of the opinion that a reasonable man would not regard the defendant's excuse, to not giving his access code to police, as reasonable in the circumstances even though it was based on a belief genuinely held by him. It is just not reasonable using the reasonable man test. I am satisfied beyond reasonable doubt of that.

[34] I find that a reasonable man would plainly agree with the example given by Mason ACJ and Brennan J above that to "make the professed doctrines of religious belief superior to the law of the land, and in effect . . . permit every citizen to become a law unto himself." To conclude that a religious belief, such as the one proffered by the defendant, could be seen as a reasonable excuse for non-compliance with a law that is directly aimed at uncovering serious criminal conduct is completely counter to common sense.

[35] All of the other elements of the charge were not substantially challenged. Senior Constable Johnston's evidence together with the exhibits satisfies me beyond a reasonable doubt that the defendant given a copy of the order under s.154A(2) of the Police Powers and Responsibilities Act 2000 (Qld) made by a Magistrate at the Inala Police Station on 25 October 2024. At the time of service he didn't make any comment, but I am satisfied that he was still relying on his earlier comments about photos on the phone and therefore would not comply with the order.

[36] When combining the above, the defendant has contravened the requirement in the order of the Magistrate without reasonable excuse and is therefore guilty of the offence.**