Infamous bikie’s major legal win over Qld’s top cop
Mongols bikie Harley Barbaro has won a significant legal victory against Queensland's Police Commissioner with a court ruling he did not commit a crime when he refused to hand over his pin code to police.
He was found guilty last year of failing to comply with a police order to give police the code to his phone seized in a raid at his Bundall home in 2018.
But earlier this year his legal team won an appeal against that decision with Judge David Kent finding Barbaro was "entitled to maintain his privilege against disclosure of certain information".
Barbaro had argued he did not want to disclose his pin code because the phone contained privileged conversations with his lawyer.
The Commissioner of Police appealed against Judge Kent's decision, arguing he failed to take into account that legal privilege could not relate to all of the information stored on the phone.
"The Commissioner pointed out, correctly, that the respondent's claim did not go so far as to assert that all the information on the phone was privileged nor did his evidence identify the documents over which he claimed privilege," the appeal judges wrote in a decision handed down this morning.
But the judges did not accept the Commissioner's submissions, saying Barbaro had not acted unreasonably and dismissed the appeal.
"In this case the demand made of the respondent to reveal the password that would unlock his phone was made in terms that did not suggest that police accepted any limitation upon their powers of inspection of documents that they found on the phone," the judges wrote.
"Police were asserting a right to read every document on the phone."
The judges found the only way Barbaro could stop police reading the privileged information was to refuse to give his pin code and that he had not been unreasonable in his refusal to give them access to the contents of the phone.
"In this case, for the reasons given, the respondent was faced with an apparent demand by police for access to the contents of his phone, which, so far as one could tell by their actions, the police officers intended to read as soon as was practicable," they wrote.
"Disclosure of the password would have meant putting police officers in an immediate position to read the privileged information.
"The only way to protect the confidentiality of the privileged information was for the respondent to deny access to the phone.
"The warrant was sufficient authority for police to take the phone away in order to preserve any evidence that might be on the phone so there was no risk that evidence might be lost. There were no extraneous factors that might have rendered his refusal, at that time, unreasonable."
The three appeal judges unanimously dismissed the Police Commissioner's appeal, writing: " … the respondent was entitled to prevent police reading his privileged material and, in the circumstances of this case, his entitlement was a reasonable excuse for his refusal to give access to the contents of his phone."
Originally published as Infamous bikie's major legal win over Qld's top cop