Police had the right to seize alleged bikie’s Harley Barbaro’s phone despite his claim it contained confidential messages that police were not allowed to read, Queensland’s Court of Appeal has been told.
The dispute over the phone access, which has now spilt into one of the state’s highest courts, relates to a search warrant executed on Barbaro’s Bundall home in 2018.
Barbaro, an alleged member of the outlaw Mongols Motorcycle Club, was convicted in June 2019 for failing to give police the passcode to his phone.
At the trial, he said he did not want to give up the passcode as he did not want police to see conversations with his lawyer.
In March, his legal team successfully appealed the conviction in Southport District Court.
Judge David Kent found police legislation did not provide a reasonable excuse for asking for Barbaro’s phone and his claim to “legal professional privilege” was “not fanciful”.
Now Queensland Police Commissioner Katarina Carroll has sought leave to appeal the successful appeal against the conviction for not giving his passcode to police.
Appearing before Queensland Court of Appeal on Monday, crown prosecutor Matt Hynes explained the legal privilege could not extend to all material on Barbaro’s phone and his right to claim legal privilege had not been removed.
“There was no discussion about how legal professional privilege is engaged and more importantly how the scope is constrained,” Mr Hynes said.
“That is an oversight in this case that has led to error.”
Mr Hynes said not all the material contained on Barbaro’s phone could amount to legal privilege and any charge that police would “misuse” the material on the phone was not reasonable.
Defence lawyer Marty Longhurst said Barbaro knew how to claim the material was considered privileged and at the time exercised it by remaining silent to police.
He said an approach where police would determine what messages were considered privileged material after being granted access was flawed.
“Police do not get the ability when a warrant is issued… to go through the phone as much as they want, to look for whatever they want,” Mr Longhurst said.
Justices Walter Sofronoff, Anthe Philippides and Debra Mullins reserved their decisions.
