Code of Silence: Wassmuth v Commissioner of Police

My current practice does not involve any sort of criminal law, although a recent decision of the Queensland Court of Appeal did pique my interest, because it touches upon the intersection of technology and the “right to remain silent”, a fundamental and longstanding common law right.

In the decision, the Court quashed the conviction of a woman who was charged and convicted of the offence of “disobeying a lawful order” after she refused to provide access information to her mobile phone pursuant to a search warrant.

Background facts

A Magistrate at Townsville issued a search warrant under the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) identifying the offences, for which the warrant was issued, as the supply and possession of dangerous drugs.

The warrant ordered the person in possession of “access information” for a storage device in the person’s possession to give a police officer access to the storage device. It stated that failure, without reasonable cause, to comply with the order could be an offence (of ‘disobeying the lawful order issued by a statutory authority’), pursuant to section 205 of the Criminal Code.

The search warrant was executed at the residence of Ms Candice Wassmuth by Police on 17 August 2016. Police officers located a mobile telephone and requested that Ms Wassmuth give them the access code for the phone, but Ms Wassmuth refused.

Ms Wassmuth was charged with the offence of disobeying a lawful order and convicted of that offence by the Magistrates Court at Townsville. She then appealed her conviction to the District Court at Townsville, however that appeal was dismissed.

Ms Wassmuth appealed to the Court of Appeal.

Grounds of appeal to the Court of Appeal

The offence, for which Ms Wassmuth was convicted, was set out in the Criminal Code in the following terms:

Any person who without lawful excuse, the proof of which lies on the person, disobeys any lawful order issued by any court of justice, or by any person authorised by any public statute in force in Queensland to make the order, is guilty of a misdemeanour, unless some mode of proceeding against the person for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment”.

Ms Wassmuth relied upon a ground that the Judge of the District Court erred in finding that she did not have a reasonable excuse for contravening an order to provide access information contained in the search warrant.

The thrust of the submission in support of that ground was that Ms Wassmuth had a lawful excuse for not giving police the access code to her mobile phone, because she had a right to claim privilege against self-incrimination (that is, by exercising a right to remain silent).

In response, it was submitted by the DPP for the Commissioner of Police that the PPRA abrogated (that is, abolished) Ms Wassmuth’s right to remain silent or, alternatively, that she had failed to express during the police search that she was exercising a right to remain silent.

Finding of the Court

After considering relevant statutory provisions and cases concerned with the right or privilege against self-incrimination, Justice North, (with whom other members of the Court agreed), was of the view that the PPRA did not express a clear and unambiguous intent to abrogate Ms Wassmuth’s privilege against self-incrimination.

His Honour was also of the view that, in any case, the offence for which Ms Wassmuth was convicted expressly contemplated a “lawful excuse” to the offence, which included Ms Wassmuth’s right to insist upon her privilege not to incriminate herself.

His Honour stated:

Without suggesting or implying anything concerning the character of the applicant, it is a commonplace investigative avenue of gathering evidence by police officers concerned with offending with respect to dangerous drugs to search and obtain details of the records held in mobile phones relating to phone calls, and more importantly text messages. Frequently it is these text messages that lay the foundation for the proof of offending, be it the possession of dangerous drugs … the supply of dangerous drugs … or trafficking in dangerous drugs … In seeking and obtaining an order from the Magistrate directing the applicant to supply the information necessary to access the stored data on the phone plainly the police officer was searching for evidence of drug offending going beyond the instances alleged in the warrant. The potential for self-incrimination by a suspect should that person answer questions acknowledging ownership or possession of the phone, or knowledge of the access information or familiarity with how to use the phone, is obvious”.

And further:

In my view the applicant had a lawful excuse for failing to provide to the police officer the access information to the phone. That lawful excuse was her right to insist upon her privilege not to incriminate herself by demonstrating the extent of her knowledge of the information necessary to access the phone and its data, and thus to demonstrate she knew how to use the phone and that she had used it and its PIN code”.

The result was that Ms Wassmuth was granted leave to appeal, her appeal was allowed, and her conviction entered in the Magistrates Court was quashed and a verdict of not guilty entered. In a separate decision, the Commissioner of Police was also ordered to pay Ms Wassmuth’s costs of the appeal.

Both decisions can be accessed below –

  1. Wassmuth v Commissioner of Police [2018] QCA 290 (substantive appeal).
  2. Wassmuth v Commissioner of Police [2018] QCA 320 (on costs).