Access to personal devices by Police

A Beenleigh Magistrate has found a man not guilty of contravening a police order to provide access to his phone after the Magistrate found the man’s religious beliefs were a reasonable excuse to refuse to provide access information.

Pursuant to section 154 of the Police Powers and Responsibilities Act2000 (QLD), a search order can be made which requires a person to prove information necessary to allow police access to a device, including a phone, tablet or computer.  Failing to provide such information without a “reasonable excuse” can result in an offence under section 205A of the Criminal Code 1899 (QLD), which carries a 5-year maximum term of imprisonment.

What is a “reasonable excuse” for failing to comply?

Previously this issue was considered in Commissioner of Police v Barbaro [2020] QCA 230, where the court held:-

• The excuse must be objectively reasonable (that is, the average person would consider it reasonable);
• Whether an excuse is reasonable will depend upon the particular facts of the case and the statutory context in which the word reasonable is used; and
• Although it doesn’t need to be the only reason why the person did not comply with the order to provide information or assistance, the asserted ‘reasonable excuse’ must actually be the reason a person withheld the information or assistance.

Changes?

In the case of Queensland Police Service v Ahmed [2023] QMC 2, where the defendant refused to give male police officers his mobile phone password as his phone contained photos of his wife without her hijab.  The defendant’s lawyers argued that the disclosure of the private communications between the married couple would go against the defendant’s genuine religious beliefs.

At the hearing the defendant accepted that at the time he was questioned by police he did not tell the police the specific details of his reasons to not comply with the order, and the nature of the “personal things” on his phone.  The defendant stated that he had not done so as he wanted to speak with his lawyer first and his requests to speak with his lawyer were not granted.

The fact that the defendant had a genuine religious belief that it would offend his faith to expose photographs of his wife to the male police officers nor that this was his primary reason for declining to provide his password were challenged at the hearing.  Magistrate Clohessy stated that at most it was argued that he did not specifically tell this to police at the time.

Her Honour found the Defendant not guilty as she was satisfied that the defendant genuinely held the religious beliefs and that this was the primary reason that he declined to give the police officers the access information.  Her Honour also noted that a comment made by a police officer during the execution of the search warrant, namely that it was “totally within your right to not provide that password” was apt to mislead the Defendant as to his obligations contained in the search warrant.  Magistrate Clohessy also noted that the Defendants’ confusion was compounded by the accompanying documents to the search warrant being incorrectly completed, as it did not indicate that the warrant included an order for the disclosure of access information to subject digital devices.

Her Honour was satisfied that the circumstances objectively raised a reasonable excuse, particularly when she considered that the investigating police were obliged to consider and act compatibly with human rights when executing the search warrant and in the decision to charge the defendant.  Her Honour noted in her reasoning that the police officers had failed to grant the defendant his right to contact his lawyer and charged the defendant prior to the time stated in the order for compliance.

In the execution of the search warrant the defendant was largely cooperative and at one point when a police officer attempted to clarify with the defendant, that there were no “legal” things on his phone just “personal things” the Defendant offered for the police officers to go through his phone.  The police did not take up this opportunity.

The police did not enquire if the defendant had a reasonable excuse for not disclosing the access information and instead asked whether the defendant had a lawful excuse, then denied him the opportunity to speak with his lawyer.

Her Honour stated that it was not unsurprising that the reason for the defendant’s non-disclosure was not communicated to the investigating officers.  Her Honour suggested that arrangements could have been made for the information to be sought in a manner which did not infringe the defendant’s religious beliefs such as the female police officer who was present to access the information, as the defendant gave evidence that it would not offend his faith if a female were to see his wife uncovered.

Magistrate Clohessy stated that similarly to the case of Commissioner of Police v Barbaro [2020] QCA 230, not every case will fall within the exception.  The reliance on the exception to avoid the requirement to provide access information to a digital device pursuant to religious beliefs is to be determined on a case-by-case basis.

Final take away

The law around mobile phones and the powers of police to seize and require access to them is complicated.

When asked to hand your phone or give access information to police you should seek legal advice from a criminal lawyer to ensure that you are exercising your rights while not exposing yourself to prosecution for a criminal offense.   Please contact our experienced criminal law solicitors.