This article was written by Ali Rana - Practice Director - Brisbane
Ali Rana is a Practice Director and practises exclusively in criminal law. Ali is a seasoned advocate and regularly represents clients in the Magistrates, District and Supreme Courts of Queensland. Ali has significant experience representing clients in all types of criminal matters, particularly serious criminal offences. Ali is focused on the fundamental rights of his clients and ensuring that they...
Police Searches of Mobile Phones (Qld)
Queensland Police can access a person’s premises to conduct a search by obtaining a search warrant and in some circumstances, they can do so without a warrant. Often, the police will apply for a search warrant during the course of an investigation where they are able to satisfy a Justice of the Peace or a Magistrate that there is a reasonable basis to suspect that evidence of a criminal offence is at the address. However, if the police wish to access information contained on a device such as a mobile phone then a search warrant application must be made to a Magistrate or Judge pursuant to section 154 of the Police Powers and Responsibilities Act 2000 (PPRA), specifically authorizing the police to do this. This article deals with the processes police must go through to obtain authorization to search a person’s mobile phone.
Search warrants
When the police execute a search warrant at premises, they are bound by the scope of the warrant. This is usually set out on the second page and will generally highlight the reason the police are conducting the investigation, for instance, if they are searching for guns or drugs.
Section 154 of the PPRA allows a search order to be made requiring a person to provide information necessary for the police to gain access to a device, including a phone, tablet or computer. Failing to provide the information can result in an offence under section 205A Criminal Code 1899. This offence carries a 5-year maximum term of imprisonment.
However, it is important to remember that an order to provide access to devices is not automatically included in each search warrant. It is important to read the entirety of the warrant and seek legal advice so that you understand your rights and obligations.
The police cannot provide you with legal advice regarding what the warrant may compel you to do and, at times, their interpretation of the law may be different to what a criminal lawyer may advise you, which is why it is important to seek independent legal advice.
Police searches of phones and the privilege against self-incrimination
The privilege against self-incrimination means that a person ordinarily cannot be compelled to give evidence or do an act that would assist the Crown in proving a criminal case against them. The privilege against self-incrimination is deeply ingrained in the common law and has been recognized by the High Court of Australia (Rochfort v Trade Practices Commission (1982) [1982] HCA 66). This privilege is also codified in section 10 of the Evidence Act 1977. It works along with the right to silence, which grants suspects the right to refuse to answer any questions asked by the police.
However, courts have also recognized that parliament may remove the privilege against self-incrimination in certain circumstances. In the 2020 Queensland District Court decision, Barbaro v Queensland Police Service the Court of Appeal confirmed the position that the privilege against self-incrimination does not apply where it has been expressly excluded by legislation. As a result, failing to provide the police with a phone during a search would result in an offence against section 205A Criminal Code 1899 if the phone is sought on the basis that it may contain incriminating evidence (such as text messages demonstrating supplies of a dangerous drug).
Police searches of phones and legal professional privilege
In Barbaro, the court recognized that legal professional privilege could act as a defence for refusing to provide the police information to access information stored on a device, such as a PIN number for a phone.
This would only be a valid defence if:
- The accused had already engaged a lawyer;
- The phone, or another device, actually contained correspondence with the lawyer;
- The privileged correspondence was relevant to the legal proceeding or investigation.
In Barbaro, the defendant claimed legal professional privilege on the basis that he had already engaged a solicitor with respect to criminal matters. Subsequently, the police executed a warrant which related to an investigation arising from the original criminal matters and there was some degree of connection. The defendant refused to provide his PIN for his phone during the execution of the warrant and in his defence at trial he claimed that the phone contained correspondence with his solicitor which was clearly in relation to the original criminal matter. One complicating feature was that the provision had been recently amended to exclude legal professional privilege.
It may be that at some point in the future parliament will remove legal professional privilege as a defence to failing to provide police with information necessary to access information stored on a phone. It is important to contact a lawyer for advice prior to formally refusing a police officer’s direction to provide information which allows them to access a phone.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.