The Australian Communication and Media Authority estimated that in 2014, there were over 12 million smartphone users aged 18 years or older, nearly an 8% increase on the previous year. As our use of technology to communicate increases, so too does the rate of offences in which smartphones are used in some manner or other.
It is common for police to request persons being interviewed regarding an offence to provide both their mobile phone and PIN so that officers may search the contents contained inside. This can present a difficulty for the person being questioned, as doing so may provide police with potentially incriminating evidence.
Firstly, it is prudent to set out one’s rights in the face of a request or direction from police to provide a PIN. The Crimes Act 1958 contains two sections under which a person who fails to provide a PIN when directed to do so by police is liable to prosecution for an offence. Both sections are aimed at cases involving child pornography, but have much broader application in reality. Where police are acting under either section, we have referred to as a ‘direction’ below. Conversely, we have referred to police making a ‘request’ where they are not acting with the powers of the sections discussed.
Section 465AAA allows police to direct a person to provide “any information or assistance that is reasonably and necessary” to allow police to access the device, where that device is on the premises subject to a warrant, or more commonly the case, seized under the warrant and presently located at the police station. Section 465AA is largely in the same terms, but operates in circumstances where police have sought a specific Order from the Court requiring the person to provide the information. Not complying under this section leaves one liable to a more serious offence than that under 465AAA.
During a record of interview, the police may make a request for the person being questioned to provide their PIN in the absence of a search warrant or a Court Order. In these circumstances, a person cannot be charged with an offence for should they fail to provide the PIN.
In the second reading of the Bill introducing Section 465AAA, Victorian Attorney General Martin Pakula said the section was introduced to “provide a simple an easy to use process for police to use in urgent cases”. Again, the section is further discussed in the context of child pornography matters, but our experience is that police are relying on the legislation for use in other areas, primarily drug trafficking.
Anyone looking closely at the legislation itself will note that terms such as ‘mobile phone’ or ‘smartphone’ are themselves absent. What sections 465AA and 465AAA do refer to however is a “computer or storage device”. The first question therefore is whether a smartphone falls within this definition. Whilst the position has not been tested in Victorian Courts, to date it has largely been accepted that the definition is met as smartphones are clearly capable storing data. Whether messages accessible via apps on the smartphone are admissible as evidence is a different matter altogether and one to be addressed another day. For clarity, recent legislation being put before the Queensland Parliament makes specific reference to a smartphone as a storage device under the definitions and it would not be unreasonable to expect similar clarification for our legislature in the future.
How then does the direction by police to provide one’s PIN, and be charged for failing to comply, align with the pillars of the criminal process? During a criminal trial, it is the prosecution that bears the burden of proof in prosecuting cases, and no onus is placed on the accused to assist in that process. Further, the accused at afforded the right not to incriminate themselves both before and during trial.
In fact, whilst an accused being questioned by police in a record of interview, they are entitled to rely on their right to silence (a derivation of the right against self-incrimination) and answer ‘no comment’ to the officer’s’ questions. It is usually at this same point in time during an investigation however that the request or direction for the PIN will be made.
Having clearly turned its mind to the matter, Parliament set out in one of the final subsections of 465AAA that “A person is not excused from complying with a direction…. on the ground that complying with it may result in information being provided that might incriminate the person”. It would appear then that lawmakers in this case have decided to place greater importance upon allowing police to obtaining evidence against an accused over the rights of the accused themselves.
Where a person is directed by police to provide their PIN knowing that there is incriminating evidence on the phone, or any device for that matter, that person may then starting weighing (a) the sentence they may receive for failing to comply with a direction from police against (b) the ultimate sentence they may receive should the evidence on the phone come to light. We can see such a scenario in the United States where a former Philadelphia Police Sergeant suspected of possessing child pornography is being held in custody indefinitely “until such time that he fully complies” with the order to provide passwords to two encrypted hard drives.
In Victoria, a person who fails to comply with the direction of police without reasonable excuse in circumstances where the devices is seized by police under a warrant is currently liable to 2 years maximum imprisonment. Where Police, having been issued a warrant, seek an order from the Court which requires a person to provide their PIN (or password) to police, that person is liable to 5 years maximum imprisonment should they not comply.