Legal privilege trumps police search warrant

Case Note: Commissioner of Police v Barbaro [2020] QCA 230

Lawyer – Client privilege was seen to constitute a ‘reasonable excuse’ for the refusal to comply with a valid police search warrant in the recent case of Commissioner of Police v Barbaro [2020] QCA 23.

This case reinforces the importance of maintaining client privilege and confidentiality,  and evidences the significant lengths courts will go to in ensuring such privilege is maintained, even, at the expense of the prosecution’s evidence gathering process.

Case Background & Court Considerations

In May 2018, while investigating whether the Respondent had committed an unspecified offence, the Police obtained a search warrant in support of their investigation, authorising the search of a specified Gold Coast residency. The warrant extended to the search and seizure of the Respondents’ mobile phone. Seizure in this context includes the ability of officers to obtain ‘access information’ as necessary to access the content of a seized item. Any refusal to comply with an officers’ enforcement of a valid warrant constitutes an offence where such refusal is ‘without reasonable excuse’.[1]

The Magistrates Court Proceedings

Relevantly, in this case, the Respondent was asked to unlock his phone, pursuant to the authorising warrant. The Respondent refused to comply with the request and consequently was charged with an offence.[2] The Respondent claimed that he was regularly in contact with his solicitor through various texting apps and for this reason, had refused the police access to his phone. The Magistrates court, at first instance rejected this defence and found the respondent guilty of disobeying the Officers’ lawful order.

The District Court

The District Court upheld the Respondents’ appeal in recognising his entitlement to maintain privilege against the disclosure of certain information present on his phone, notwithstanding the fact that not all such information was of a privileged nature. Namely, the Court here considered the protection and maintenance of legal privilege to be a reasonable excuse for refusing the Officers’ request to access his device. The conviction was set aside.

The Supreme Court

The Police Commissioner subsequently applied for leave to appeal the District Courts’ decision, suggesting that it had failed to account for the information on the device which did not attract legal privilege. It was argued that, in the absence of the Respondent demonstrating the applicability of legal privilege to all of the information on the device, the dominant purpose test could not be satisfied and consequently, privilege could not be relied on.

The court rejected the Officers’ submission that legal privilege could not be relied on as a result of the Respondents’ failure to meet the dominant purpose test.[3] This test, as established in Esso Australia Resources Ltd v Federal Commissioner of Taxation,[4] is specifically concerned with discerning whether legal privilege attaches, at first instance, to a particular piece of information. Accordingly, the court considered it irrelevant in light of the non-disputed finding that legal privilege had attached to some of the documents on the phone.

In rejecting the Commissions submissions, the Court referenced the established nature of legal professional privilege being a rule of substantive law which may be relied on by persons to resist the giving of information or provision of documents that would reveal client – lawyer communications. Importantly, this right extends to the right to refuse to comply with a search warrant.

The court proceeded to consider the question of ‘reasonable excuse’ and whether, in this instance, the Respondents refusal to comply on the basis of the protection of his legal privilege would constitute a reasonable excuse and consequently absolve him of a criminal charge. Three factors were emphasised in this respect;  

  1. The term ‘reasonable’ necessitates an objective consideration of the reasonableness of an excuse in question
  2. In determining whether something is reasonable, both the surrounding circumstances of the case, and the statutory context wherein the word appears will be relevant
  3. The asserted reasonable excuse need not be the only reason, but must be an actual reason behind the persons’ withholding of access to information.

In application, the term reasonable was framed by its inclusion in the search warrant, through which, the Police were seeking to obtain evidence that may prove the commission of an offence by the Respondent.

Accordingly, the police officers’ exercise of search powers under the warrant in requesting the Respondents’ access code demonstrated a clear and unmistakable intention to read the information contained on the phone. Importantly, it was interpreted by the court as an intention to read every document on the phone, without limitation despite the relevant existence of legal privilege over a number of solicitor – client correspondence.

The court emphasised the purpose of the warrant in assessing whether the Respondent’s legal privilege was a reasonable excuse. Namely, it was noted that the search warrant authorised a process which sought, and intended to reveal evidence which would implicate a person and could be subsequently relied on by the prosecution in obtaining a conviction.  The information on the Respondents’ phone, including correspondence between himself and his solicitor was the precise kind of evidence the officers’ were seeking despite its in inadmissible nature.

The Respondents’ refusal was found to be the only avenue open to him in protecting the confidentiality of the privileged information and accordingly the Court considered such refusal to be on the basis of a reasonable excuse. Notably however, the court emphasised the Officers’ authority under the warrant, to validly seize the phone for the purposes of preserving evidence, despite the privileged information it contained.

The appeal was dismissed.

Will legal privilege always prevail over a search warrant?

The short answer here is no. The court distinguished between circumstances involving the authorised seizure of a device as opposed to the examination thereof in suggesting that legal privilege would not prevent an officer from seizing an item where it would be promptly handed over to a judicial officer.[5] In this case however, there was a real and significant risk that the privileged material would be read by the Police Officers.

Takeaway:

This case highlights the fundamentality of legal privilege within the justice system and the lengths courts will go in ensuring the observance of lawyer – client confidentiality. So important is the concept of confidentiality, that the unauthorised disclosure of privileged communications may even result in the staying of criminal proceedings.[6]

This article was written by Luke Borgert and Brittany Everett.


[1] Disobediance to a lawful order issued by statutory authority; Criminal Code 1899 (Qld) s205A.

[2] Criminal Code 1899 (Qld) s154(1).

[3] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 [61].

[4] (1999) 201 CLR 49 at [61].

[5] Allitt v Sullivan [1988] VR 621.

[6] R v Leach [2019] 1 QD R 459

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