Alleged bikie wins appeal on phone charge

AN accused bikie who refused to give his phone pin to police because of concerns over legal privilege has had his conviction quashed.

Harley Barbaro successfully appealed his conviction after a judge accepted his argument that he did not reveal his pin because of legal concerns.

Barbaro’s solicitor lauded the decision, saying it protected “fundamental rights”. The decision means police no longer have “unfettered access” to mobile phones. Barbaro, the brother of slain Sydney underworld boss Pasquale Barbaro, was charged after he refused to give officers access to his iPhone during a raid in 2018. He was initially convicted of contravening an order about access to information stored electronically after a trial in May 2019, for which he pleaded not guilty.

Ultimately, the magistrate found there was no reasonable excuse in refusing to provide his pin.

That’s despite Barbaro telling the court during his trial that he didn’t comply because he used the phone to communicate with his solicitor, Campbell MacCallum.

He said “if I give up my password, what’s the point of even having a lawyer?”

But his conviction was overturned after the Court of Appeal ruled the claim of legal professional privilege was a reasonable excuse in not providing the pin. Mr MacCallum, of Moloney MacCallum Abdelshahied Lawyers, who acted pro bono on the appeal, said the decision protected “fundamental rights”.

“It recognises that lawyer/ client confidentiality extends to modern communication modes and devices,” he said.

“Moving forward from this important decision, police now do not have unfettered access to a person’s mobile phone, which until this decision was handed down, has been offending a person’s right to privacy. And more importantly protects the relationship of a lawyer and client which is the very foundation of a fair justice system.”

According to documents, Barbaro submitted the offence, outlined in the warrant, was a failure without reasonable excuse to comply with the order.

He argued the magistrate erred in concluding the claim of legal professional privilege was not a reasonable excuse.

The Queensland Police Service submitted that the phone contained much more than privileged information and as such did not meet the standard for a reasonable excuse. But Judge David Kent QC said the arguments of Barbaro must be accepted.

“The appellant clearly made a claim to legal professional privilege, at least by the time of the trail, on a basis which is contradicted and not fanciful.”