Criminal Law and Procedure - insufficiency of charge as laid - Crimes Act 1914 (Cth), s.70 - constituent element of offence that the fact communicated by the Commonwealth officer be a fact "which it is not his duty to disclose" omitted from charge.

Evidence - criminal proceedings - failure of accused to give evidence - whether inference of guilt available to Magistrate - whether error of law - it was not.

Crimes Act 1914 (Cth), s.70

Magistrates Court Act 1930, s.28

Hedberg v. Woodhall [1913] HCA 2; (1913) 15 CLR 531

Bowling v. General Motors-Holdens Pty Ltd (1975) 8 ALR 197

Ex parte Williams (1909) NSW SR 140

Weissensteiner v. R [1993] HCA 65; (1993) 117 ALR 545

Johnston v. Director of Public Prosecutions (1989) 90 ACTR 7

Solicitors for the appellant: Sneddon Hall and Gallop

Solicitors for the respondent: Commonwealth Director of Public

Prosecutions

1. The appeal be upheld and the convictions and orders of the Magistrates Court be set aside.

3. Each party pay his own costs of the appeal and the costs of the proceedings in the Magistrates Court.

MILES CJ This was an appeal, or two appeals heard together, from convictions by a Magistrate on two charges laid on a single information. One charge was that on 23 December 1992 the appellant, being a Commonwealth officer, communicated facts to Claudia Gladys Wilde concerning Alan Robinson, which came to his knowledge by virtue of being a Commonwealth officer. The other charge was in similar terms, the recipient of the information alleged to be Donald Esposito.

2. The information appears to have been bad for duplicity (see eg. Hedberg v. Woodhall [1913] HCA 2; (1913) 15 CLR 531, Bowling v. General Motors-Holdens Pty Ltd (1975) 8 ALR 197) but no point was taken on this aspect and the defect may be taken to have been cured by lack of objection (see eg. Ex parte Williams (1909) NSW SR 140).

3. However, the information disclosed no offence known to law. The provisions of s.70 of the Crimes Act 1914 (Cth) which creates the offences purportedly charged are not confined to the terms set out in the information. They provide as one of the constituent elements of the offence that the fact communicated by the Commonwealth officer be a fact "which it is not his duty to disclose". No application to amend the information or to treat the evidence as a variance under s.28 of the Magistrates Court Act 1930 was made at the hearing before the Magistrate, originally, or on the appeal. Although the insufficiency of the information was not raised as a ground of appeal, it came to the attention of the Court after judgment was reserved. Further argument followed on 6 June 1996 and Mr. Lalor made an application on behalf of the respondent to amend the information. I decided that the amendment should be refused and for the foregoing reasons that the appeal should be upheld and dismissed the information accordingly.

4. However, I said that there were submissions on other grounds and I would deal with them in reasons to be published later. These are the reasons.

5. The Magistrate found the following facts which, as I understand it, are not challenged. 1. At all material times the appellant was a member of the Australian Federal Police and a Commonwealth officer within sub-s.3(1) of the Crimes Act. 2. Prior to 23 December 1992 the appellant had been resident in Perth and subsequently transferred to the ACT. 3. Prior to 23 December 1992, Mr. Donald Esposito, a private inquiry agent with his office in Perth, had been retained by a firm called Eclipse Investigations and Surveillance Consultants to make inquiries about a Mr. Alan Robinson. 4. On several occasions prior to 23 December 1992 the appellant had made telephone calls from the offices of the AFP in Canberra to the Fraud and General Law Section of the AFP offices in Perth. The Fraud and General Law Section was situated on the floor below the switchboard of the AFP Perth offices. 5. Prior to 23 December 1992 a person called Anne Furey worked as a relieving switchboard operator in the AFP Perth Offices. 6. The telephone records of the AFP record that at 1241 p.m. on 23 December 1992 the appellant made a telephone call to the AFP Perth offices lasting 13 minutes 14 seconds. 7. At about the same time the appellant in the AFP Canberra offices was heard to make a telephone call and say:

"Hello Anne, it's Peter Middelhuis. I'd like to check a rego number, can you put me downstairs", and

"Can you check a number for me, 7PG743, it should come up to Alan Robinson."

8. At about the same time a Constable Perry used the mainframe computer in the AFP Perth offices to enter the computer system of the Western Australian Police. 9. At about 1258 p.m. on 23 December 1992, the appellant made a telephone call from the AFP Canberra offices to the Perth office of Mr. Donald Esposito and spoke to Ms. Claudia Wilde, who was employed by Mr. Esposito for the purpose of taking messages. She wrote down the following message:

"Re: Alan Robinson, born 2/12/66 care of C26 Camp 2, SPQ Linsta-Kalg"

10. Ms. Wilde took the written message and put it on Mr. Esposito's desk where it was likely to come to the attention of Mr. Esposito. 11. The written message was seized from Mr. Esposito's office during a subsequent search.

6. The Magistrate recognized that the question whether the appellant had knowledge of the facts in question was a matter of circumstantial evidence. In this connection the Magistrate stated that he was convinced beyond a reasonable doubt, based upon the circumstantial evidence and inferences and the evaluation of evidence that he had set out in his judgment, that the address for Alan Robinson shown in Exhibit 1 was obtained by the defendant from an officer of the Australian Federal Police in Western Australia, who obtained it from the Western Australian Police computer system, and that the address of Alan Robinson was a fact which had come to the knowledge of the appellant. The Magistrate also correctly recognized that the ultimate question whether the prosecution had proved beyond reasonable doubt that the appellant communicated facts to Donald Esposito was a question of circumstantial evidence, but held that the evidence was such that he was satisfied that that was "the inevitable inference".

7. The grounds of appeal are as follows: 1. That the learned Magistrate erred in fact and in law in holding that the Appellant had knowledge of the facts the subject of each charge. 2. That the learned Magistrate erred by taking into account to an extent greater than was appropriate, the fact that the Appellant did not give evidence. 3. That the learned Magistrate erred in law in not correctly addressing the issue of conviction by inference.

8. The submissions made at the hearing of the appeal were not confined to these grounds and counsel for the appellant argued at length the sufficiency of the evidence relating to the second charge, namely that the appellant had communicated the facts to Mr. Esposito. No application was made to amend the notice of appeal.

9. The first ground in the notice of appeal was not strongly argued, and it is difficult to see how it could be argued at all, in view of the undisputed findings on the part of the Magistrate. The facts as found that the appellant spoke to the switchboard operator in Perth indicating that he would "like to check a rego number", then spoke to Constable Aldridge likewise, saying that the registration number "should come up an Alan Robinson", and subsequently spoke to Ms. Wilde who took the message as above indicated, all indicate in the clearest possible way that the facts contained within the message had come to the knowledge of the appellant. The knowledge at which s.70 is directed is clearly not confined to first-hand knowledge, but includes knowledge based on secondary sources. Otherwise the section would have an extremely limited operation and in practical terms would not address the mischief at which it is directed, namely the unauthorised dissemination of information gained by virtue of being an officer of the Commonwealth.

10. The second and third grounds of the notice of appeal may be dealt with together. Counsel relied on the decision of the High Court in Weissensteiner v. R [1993] HCA 65; (1993) 117 ALR 545 where Mason CJ and Deane and Dawson JJ in a joint judgment stated at 552: ".... it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." And at 553: "There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge."

11. However, counsel for the appellant argued that the Magistrate did not recognize the distinction referred to and took the impermissible step of drawing an inference of guilt from the failure of the appellant to give evidence.

12. The submission is made in the face of the very reference by the Magistrate to Weissensteiner and the quoting by the Magistrate of the lengthy passages from the joint judgment. The Magistrate went on to remark that the only person who could positively know how the defendant came by the address shown in Exhibit 1 was the defendant. That was a fact peculiarly within his knowledge. The Magistrate considered, as he was, in my view, entirely entitled to do, that whatever exercise the appellant was undertaking on 23 December 1992 was "inextricably linked with the business of his old friend, Mr. Esposito". The Magistrate considered that it was not a matter that a person would be likely to forget and that the passage of time was no explanation for the defendant's failure to testify to the facts that were peculiarly within his own knowledge nor, in the Magistrate's expressed view, was the prosecution case so weak as to account for the defendant's failure in that regard. The Magistrate then went on to state that he was satisfied beyond reasonable doubt of the ingredients of the offence charged.

13. I see no error here. The Magistrate was perfectly aware of the need to exclude any reasonable inference consistent with the innocence of the accused before making a finding that the accused was guilty. The reference to "no explanation for the defendant's failure to testify" taken out of context is misleading, but when read with the rest of the Magistrate's careful reasons for judgment, it is clearly shown that there was no error on the part of the Magistrate at all. Indeed, no argument was put in this Court and it seems none was put before the Magistrate, that on the findings of primary fact there was some rational hypothesis that was consistent with the innocence of the appellant.

14. As I understand it, there was also argument on the appeal, not covered by the grounds of appeal, that it was not shown that the information which came to the knowledge of the appellant did so "by virtue of being a Commonwealth officer". However, that submission is clearly in the face of the earlier decision of this Court in Johnston v. Director of Public Prosecutions (1989) 90 ACTR 7. In that case it was said at 11: "It is not necessary to have recourse to the etymology of the phrase "by virtue of" or to cases where that phrase has been used in other legislation or contracts. For the purposes of s.70(1) it means that there has to be a causal connection between being a Commonwealth officer and the coming to the knowledge of the officer of the fact in question. In my view, the magistrate was quite right in finding that there was a causal connection between the office of the appellant as a member of the Australian Federal Police and the utilisation of the opportunity afforded to him as such member to obtain information from the computer files. The fact that he utilised the opportunity for private purposes and not for the purposes of his office, does not stand in the way of a finding that the information came to him by virtue of his office."

15. To these words, which I hope are clear enough, it may be added that the prosecution does not have to prove that, in the circumstances which caused the facts to come to the knowledge of the Commonwealth officer, the officer was acting in the execution of his duty. Clearly the section is not confined to cases where the officer gains the knowledge legitimately and then communicates it without authority. It also covers any situation where the officer, by virtue of being a Commonwealth officer, comes by such knowledge, whether deliberately or not. It is immaterial that the officer came by this knowledge as a result of carrying out his duty as such officer or acting in breach of his duty as such officer.

16. However, the omission from the charge laid in the information was fatal to the prosecution and, as I have said, the appeal was upheld. The convictions and orders of the Magistrates Court are set aside and the information dismissed. Each party was ordered to pay his own costs and the costs of the proceedings in the Magistrates Court.