Evidence - Burden of proof, presumptions and weight in sufficiency of evidence - Statutory provisoes and exemptions - Particular matters - Obtaining access to computer data without authority - Whether Crimes Act 1914 (Cth), s15D applies. Statutes - Interpretation - Particular words and phrases - Without lawful authority. Crimes Act 1914 (Cth), ss 15D, 76B(1).

Solicitors for applicant: Australian Government Solicitor

Solicitors for respondent: Aboriginal Legal Service

ZEEMAN J By complaint made on 7 September 1992 the applicant alleged that the respondent had committed various breaches of the Crimes Act 1914 (Cth) ("the Act"), s76B(1)(a). The respondent pleaded not guilty to the charges and the complaint came on for hearing before a magistrate who dismissed it. The applicant successfully appealed against the dismissal of the complaint and an order was made that the complaint be re-heard by another magistrate (Rook v Maynard A97/1993). At the conclusion of the case for the applicant on the re-hearing the respondent submitted that he had no case to answer. The learned magistrate upheld that submission in relation to counts 2 and 33 and dismissed the charges contained therein. The applicant now seeks to have the dismissal of those charges reviewed.

2. The only ground contained in the notice to review is that the learned magistrate erred in law in holding that the Act, s15D did not apply to the offence created by s76B. It is common ground that if the learned magistrate so erred, then the dismissal of the charges cannot stand because it would follow that the respondent did have a case to answer.

"15D Where under any law of the Commonwealth any act,

if done without lawful authority, or without lawful

authority or excuse, or without permission, is an

offence against that law, the burden of proving that

the act was done with lawful authority, or with lawful

authority or excuse, or with permission (as the case

may be), shall be on the person accused."

4. The offences with which the respondent was charged were those created by s76B(1)(a) which provides as follows:

"76B (1) A person who intentionally and without

authority obtains access to:

(a) data stored in a Commonwealth computer; ....

is guilty of an offence"

5. The point of statutory construction which arises is whether the absence of authority, which is an ingredient of the offence created by s76B(1)(a), attracts the provisions of s15D so as to place the burden of proving the existence of authority upon the respondent. The learned magistrate held that s15D has no application to s76B(1)(a), that therefore the applicant carried the burden of proving the absence of authority, that there was no evidence upon which it could be found that the respondent acted without authority in relation to the acts the subject of counts 2 and 33 and that therefore the respondent had no case to answer in relation to those counts. Counsel for the applicant submitted that the learned magistrate erred in her construction of s15D because the word "authority" appearing in s76B(1) is to be equated with the expression "lawful authority" and with the word "permission", both of which appear in s15D.

6. Section 76B(1) is concerned with data stored in Commonwealth computers and data stored on behalf of the Commonwealth in other computers. It is therefore concerned with the Commonwealth's data. The obtaining of access to such data without authority connotes obtaining access when there is absent authorisation from the Commonwealth to obtain such access (cf Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315). In other words, a person does not have authority to obtain access to computer data except with the permission of the Commonwealth. In Adelaide Corporation v Australasian Performing Rights Association Ltd [1928] HCA 10; (1928) 40 CLR 481 the High Court appears to have treated the words "authorise" and "permit" as synonymous.

7. I do not consider that s15D is to be construed as being limited to provisions in a law of the Commonwealth which in express terms make it an offence to do an act without lawful authority, without lawful authority or excuse or without permission. Rather, it is to be construed as applying to provisions, no matter how they are framed or what words they employ, which have the effect of proscribing an act done without lawful authority, or without lawful authority or excuse, or without permission.

8. Considerable argument was addressed to the question as to whether it can be said that the relevant ingredient of the offences with which the respondent was charged was the doing of an act without lawful authority. Counsel referred to Crafter v Kelly (1941) SASR 237 where the court was concerned with the offence of refusing to answer a lawful question asked by a person authorised by a statutory board. I do not find that case to be of assistance. As Napier J pointed out, at 243, the meaning of the word "lawful" must depend on the context in which the word is used. Reliance also was placed on Dickins v Gill (1896) 2 QB 310 which concerned the offence of having in possession a die and instrument for making a fictitious stamp without a lawful excuse. The only relevance of that case appears to be one of the members of the court seems to have accepted an argument put by counsel that the expression "without due authority", appearing in a different section of the relevant statute which prohibited the making of imitations of postage stamps without due authority, meant authority given by the Crown.

9. Relying on those cases, counsel for the respondent adopted as part of his argument, the views as to the meaning of "lawful authority" expressed by Card, Authority and Excuse as Defences to Crime (1969) Crim LR 359. At 362 the learned author said:

"From the slender evidence provided by Dickens v Gill

and Crafter v Kelly it would appear that 'lawful

authority' means some authority from a public source

which is supported by law. This, it is submitted, is

the correct interpretation. Generally, the statutes

under discussion do not contain an interpretation of

'lawful authority' but their context would seem to

require an interpretation such as that advanced above.

The reason is that they are dealing with acts and

states of affairs which may be carried out lawfully

under the terms of the order of a court, an official

licence or administrative decision which has been

given pursuant to some statutory power or a power

afforded by delegated legislation. It is, presumably,

to such acts executed under statutory authorisation

that 'lawful authority' impliedly refers."

10. I do not accept that "lawful authority" is to be given such a restricted meaning. Such a restricted meaning is not supported by either of the cases relied upon. It may well be that in some cases the only form of lawful authority capable of existing is of the type referred to by Card but that does not mean that in all circumstances lawful authority is to be limited to authority of that type. The difficulties created by adopting such a construction become apparent when consideration is given to statutes which proscribe the doing of an act without lawful authority when such authority as might be capable of existing is incapable of being found in any public source. An example of such a statute is that considered in R v Jura (1954) 1 QB 503. Whether lawful authority for the doing of an act is to be found in a public source depends upon the nature of the act and the nature of the authority which is capable of being provided for the doing of that act.

11. The learned magistrate took the view that Satterley v Palmer (1947) SASR 346 (which appears to be the only reported dealing with s15D) is authority for the proposition that lawful authority means something more than mere authority. It is important to note that the question which arises in the present case did not arise in that case because it concerned a breach of the Act, s30, an ingredient of which is that there has been a taking "without lawful authority". Contrary to the view which the learned magistrate appears to have taken and which was urged upon me by counsel for the respondent, in that case Mayo J did not seek to distinguish between "lawful authority" and "mere authority" but rather, at 350-351, sought to distinguish the general authority of a driver of a Commonwealth vehicle to deliver Commonwealth goods with the specific authority to deliver particular goods to a particular place. I have not found that case to be of any assistance.

12. The difficulties which arise in the present case may be dealt with by asking the following questions:

1 Is it possible for a person to access Commonwealth data

with lawful authority if not so authorised by the

Commonwealth?

2 Is the permission of the Commonwealth required before a

person has authority to access data for the purposes of

s76B(1)?

13. The answer to the first question must be in the negative because there is an absolute prohibition on obtaining access to relevant data without authority, that being the authority of the Commonwealth, so that an absence of authority results in the access being without lawful authority. The answer to the second question must be in the affirmative because the authority of the Commonwealth means the permission of the Commonwealth. The ingredient of the offence that the access is obtained "without authority" means that it is obtained without permission and, if it is obtained without permission, it is obtained without lawful authority. An act of the type referred to in s76B(1)(a) is an offence if it is done without lawful authority or permission. It follows that s15D applies and that the construction which the learned magistrate placed on the relevant sections was erroneous.

14. Accordingly the appeal will be allowed, the order dismissing the charges contained in counts 2 and 33 of the complaint will be set aside and those counts will be remitted to the learned magistrate to be determined according to law.