Can the police go through your mobile phone?

 Introduction:

A charge of contravening an order about device information from a digital device, also known as a section 205A offence, may be brought against a defendant who refuses to allow access to their devices as required by a search warrant under sections 154(1) or (2), 154A(2), or 178A(1) of the Police Powers and Responsibilities Act 2000 (PPRA). This offence was created to combat serious and organized crime and is taken very seriously by the courts. According to the District Court of Appeal, this offence strikes at the heart of the administration of justice, as it involves a failure to comply with a court order. Consequently, the penalty imposed should take into account the need for general deterrence and denunciation.

Elements of the Offence: The offence occurs when a person, without a reasonable excuse, fails to provide access to an electronic device after being served with a relevant warrant under the PPRA or the Crime and Corruption Act. For example, refusing to provide the password to a laptop or mobile phone during the execution of a search warrant. It is worth noting that the police must inform a person that failing to comply without a reasonable excuse constitutes an offence against section 205A of the Criminal Code.

Defences: The key defence for a defendant is having a reasonable excuse for not providing access to the device. The Court has defined a reasonable excuse as something an average person would consider reasonable. Legal professional privilege is protected and can constitute a reasonable excuse, as determined in Commissioner of Police v Barbaro [2020] QCA 230. However, not every instance where privilege is claimed will be a reasonable excuse, and it is up to the defence to establish a claim for privilege. In Queensland Police Service v Ahmed [2023] QMC 2, the court found that a genuine religious belief could be a reasonable excuse to not comply with a warrant to provide access.

It is important to note that self-incrimination is not a reasonable excuse. If complying with a warrant would incriminate a person of an offence, they cannot use this as a defence.

Why Contact a Lawyer: As this charge can result in imprisonment, it is important to seek legal representation. By engaging a lawyer, a defendant can determine if there is an available defence and obtain the best possible outcome. Clarity Law can review the case and assist in obtaining the best available outcome in the circumstances.

Conclusion: This article is not an exhaustive guide to this offence but can serve as a starting point for those who have been charged but not yet been to court. If charged with this offence, it is recommended to contact Clarity Law for a free initial consultation.