Queensland Police Service v Ahmed [2023] QMC 2

Date: 17 March 2023
Court: Magistrates Court of Queensland
Judicial Officer: Magistrate P M Clohessy
Human Rights Act 2019 (Qld) Sections: ss 4, 8, 9, 13, 20, 24, 25, 27, 48, 58
Rights Considered: Right to freedom of thought, conscience, religion and belief; Property rights; Right to privacy and reputation; Cultural Rights Other Legislation: Criminal Code 1899 (Qld) s 205A; Police Powers and Responsibilities Act 2000 (Qld) s 154; Justices Act 1886 (Qld) ss 47, 48 and 76
Keywords: Criminal Law and Corrective Services: Police: Religion

The Defendant was charged with contravening an order requiring access to information on a digital device without reasonable excuse. The Defendant submitted he had a reasonable excuse because compliance with the order would unreasonably limit his right to religious freedom on the basis that the device contained photographs of his wife without a hijab and personal communications between them. The Court considered but did not reach a decision as to whether the interpretive clause in s 48 of the Human Rights Act 2019 (Qld) affected the meaning of “reasonable excuse”. On the substantive issue, the Court found the defendant had a reasonable excuse and took into account the police officers’ obligations under the Human Rights Act 2019 (Qld) as part of the overall "constellation of features” that lead to a finding of not guilty.

Police executed a search warrant at the defendant’s house and requested access to his mobile phone. The defendant did not provide the relevant password and he was subsequently charged with contravening an order requiring access to a digital device without reasonable excuse. The issue was whether the defendant held a reasonable excuse to resist disclosure of access information.

The defendant claimed that he had a reasonable excuse, primarily because his phone contained photographs of his wife without a hijab and personal communications between them, of which disclosure to another male would be against his genuinely held religious beliefs. The Court considered the relevance of the Human Rights Act 2019 (Qld) (HR Act) in two key respects. First, in the interpretation of “reasonable excuse, and second in respect of the obligations on police officers.

Section 48 of the HR Act requires that all statutory provisions be interpreted compatibly with human rights, to the extent possible that is consistent with their purpose. The Court referred to authorities that assert that where the meaning of a provision is clear, s 48 is of no assistance because the clear meaning is that which is consistent with the purpose. The Court noted that the term “reasonable excuse” is well known to the criminal law and is not ambiguous; however, it ultimately did not reach a view on whether s 48 was relevant to its interpretation because there was no real argument on the issue of interpretation, but on application. The Court did not consider s 48 had any operative impact on the issue of application but accepted “that if it did it may perhaps act to bolster the outcome”: at [71].

The Court noted the right to freedom of thought, conscience, religion and belief (section 20), cultural rights (section 27), property rights (section 24) and the right to privacy and reputation (section 25) pursuant to the HR Act. In determining whether the circumstances of the case constituted a reasonable excuse, the Court considered that the Queensland Police Service is a public entity that is subject to obligations under the HR Act which extended to the manner of execution of the search warrant and the decision to charge. Although the lawfulness of the police’s actions was not in dispute, the Court considered that noncompliance with those obligations may have bolstered the defendant’s claim to a reasonable excuse: at [79].

The Court observed that the police officers could have made arrangements to carry out the warrant in a way that did not infringe on the defendant’s rights by having a female officer conduct the search.

Ultimately, the Court found the defendant not guilty by reference to a “constellation of features” giving rise to a reasonable excuse: see [88]. One of those features was regard to “the fact that the investigating police were obliged to give proper consideration to, and act compatibly with, human rights in the manner of the execution of the search warrant and in making the decision to charge the defendant”: at [84].

View the judgement: Queensland Police Service v Ahmed [2023] QMC 2