Mark Johnston v Director of Public Prosecutions Sca [1989] ACTSC 41 (18 August 1989)

SUPREME COURT OF THE ACT

MARK JOHNSTON v. DIRECTOR OF PUBLIC PROSECUTIONS
S.C.A. Nos. 84 and 85 of 1988
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Appeal - disclosure of information by member of the Australian Federal Police - whether conduct amounted to a communication - intention - whether information came to knowledge by virtue of being a Commonwealth Officer - Crimes Act 1914 (Cwlth) s.70(1).

Australian Federal Police (Discipline) Regulations in force under the Australian Federal Police Act 1979, Statutory Rules 1979 No. 211

HEARING

CANBERRA
18:8:1989

ORDER

The appeals be dismissed and the convictions and orders of the Magistrate be confirmed.

The appellant have three months to pay the fines, in default ten days in each case.

DECISION

The appellant was convicted by a Magistrate in the Canberra Court of Petty Sessions on 22 December 1988 on two charges under s.70(1) of the Crimes Act 1914 (Cwlth), apparently heard together by consent. He now appeals against the conviction and penalties. The appeals are heard together by consent. Section 70(1) is in the following terms:
"PART VI - OFFENCES BY AND AGAINST PUBLIC OFFICERS

Disclosure of information by Commonwealth officers
70(1) A person who, being a Commonwealth officer
publishes or communicates, except to some
person to whom he is authorised to publish
or communicate it, any fact or document which
comes to his knowledge, or into his
possession, by virtue of being a Commonwealth
officer, and which it is his duty not to
disclose, shall be guilty of an offence.
.....
Penalty Imprisonment for 2 years."

2. The precise charges were that the appellant:

1. Between 14 December 1986 and 29 April 1987
then being a Commonwealth Officer namely a
Constable of the Australian Federal Police
did communicate to Christopher Alfred
Clearihan, a person to whom he was not
authorised to communicate it, the fact that
the Australian Federal Police has documented
the alleged possession of a pistol by the
said Christopher Alfred Clearihan, the said
fact having come to his knowledge by virtue
of his office and being a fact which it was
his duty not to disclose.
2.Between 29 April 1987 and 10 May 1987 then
being a Commonwealth officer, namely a
Constable of the Australian Federal Police,
did communicate to Christopher Alfred
Clearihan, a person to whom he was not
authorised to communicate it, the fact that
Constable Robert McCarthy of the Australain
Federal Police was the originator of the
documentation held by the Australian Federal
Police concerning the alleged possession of a
pistol by the said Christopher Alfred
Clearihan, the said fact having come to his
knowledge by virtue of his office and being a
fact which it was his duty not to disclose."

3. The case against the appellant was a simple one. He was a member of the Australian Federal Police, holding the rank of Constable. He had some private business dealings with a man called Christopher Alfred Clearihan (referred to in evidence as Chris Clearihan). For the purposes of those private business dealings, he searched files on the Australian Federal Police computer at Weston. He discovered that data relating to Chris Clearihan was held on those files and in particular that, according to that data, Chris Clearihan was in possession of an unlicensed rifle. In a conversation with Clearihan some time after 14 December 1986, according to the prosecution case, the appellant informed Chris Clearihan that the data on the police computer indicated that Chris Clearihan was in possession of an unlicensed pistol. During a further conversation with Chris Clearihan some time shortly after 29 April 1987, according to the prosecution case, the appellant informed Chris Clearihan that the source of the data on the police computer was a Constable Robert McCarthy.

4. In finding the offences proved, the Magistrate gave brief reasons. The Magistrate said that he rejected the evidence given before him by the appellant, which the Magistrate was entitled to do. The Magistrate also said that the evidence given in the defence case by a witness called Christopher Wright did not support the defence case that the appellant had not disclosed the information which was the subject of the charges. The Magistrate again was entitled to take that view. In that event, as the Magistrate remarked, the essential evidence given to support the prosecution was in the form of a record of interview. There was also some evidence in the form of a statement admitted into evidence by consent by Senior Constable Robert William Richardson and in the defence case of Terrence John Clearihan. That witness was not touched in cross-examination and the brief reference to his evidence in the Magistrate's reasons indicate that the Magistrate accepted it.

5. The evidence was to the effect that a Mr. Jim McCarthy told Terrence John Clearihan that unless Chris Clearihan stopped hassling him, Jim McCarthy, then he, Jim McCarthy, would dob in "Chris Clearihan to his son, Bob, who was a Constable in the Australian Federal Police.

6. According to the statement of Senior Constable Richardson of the Crime Collation Unit, the computer in question maintains data relating to people who are believed to be potentially dangerous because of possession of firearms. The statement outlined the procedure followed by members of the Police Force who wish to gain access to the computer files.

7. The record of interview dated 25 August 1987 between investigating police and the appellant is lengthy. However, the appellant clearly conceded in it that there were conversations between himself and Chris Clearihan following access to the police computer by the appellant on 14 December 1986 and 29 April 1987. The appellant admitted that he had gained access to the computer on both those dates for the purpose of his business dealings with Chris Clearihan and in particular for the purpose of checking whether Chris Clearihan had a criminal history. The appellant further admitted that, as a result of his search, he had learned that the computer files contained data to the effect that Chris Clearihan was in possession of an unlicensed firearm and that the source of the data was Constable Bob McCarthy. Many of the answers given by the appellant in the course of the interview with the investigating police are vague and some are self-contradictory but, in my view, they clearly allow the conclusion beyond reasonable doubt, that about a month after 14 December 1986 the appellant informed Chris Clearihan "about his name being on the computer" and that on or shortly after 29 April 1987 he informed Chris Clearihan that Constable Bob McCarthy "was the author of the information concerning the pistol".

8. In relation to both conversations, the appellant told the investigating police that he "had been sucked in by a smooth talker", that "when the discussion of firearms come up I must have blurted it out", and that "he put it to me and I agreed that the names he mentioned, McCarthy". The appellant also said in part answer to question 78:

"He put it to me that he knew who it was and I
like a bloody fool confirmed it. I can see it now
that he was just fishing."

9. It was submitted on behalf of the appellant on the hearing of the appeal:

1. That the conduct of the appellant did not amount to a
communication within the meaning of s.70(1).
2. That if the appellant's conduct did amount to
communication, there was no intention on the part of
the appellant to communicate the relevant facts.
3. That the relevant facts did not come to the knowledge
of the appellant by virtue of being a Commonwealth
officer within the meaning of s.70(1).

10. It was not contested that the appellant was under a duty not to disclose the matters alleged as constituting the facts in question, so long as the prosecution proved to the requisite degree that those facts came to the appellant's knowledge by virtue of his being a Commonwealth officer. In this respect Regulation 13(1) of the Australian Federal Police (Discipline) Regulations in force under the Australian Federal Police Act 1979, Statutory Rules 1979 No. 211 provides as follows:

"Disclosure of Information, etc.
13(1) A member shall not, without lawful authority
or excuse -
(a) communicate to a person any information
that he has acquired in the course of his
duties; ....."

11. Furthermore, General Order 17A is in the following terms:

"GENERAL ORDER 17A
POLICE RECORDS - DISCLOSURE OF INFORMATION
PART IV - RELEASE OF INFORMATION
INFORMATION NOT TO BE RELEASED
13(1) A member shall not release information
concerning the personal record of an
individual to any person or body unless he
is expressly authorised to do so by a
records review officer or a person authorized
by the Commissioner to release such information."

12. General Order 8(1) is in the following terms:

"POLICE RECORDS TO BE SECURE AND CONFIDENTIAL
8(1) All police records which are of a personal
nature concerning an individual and which
are maintained by the Australian Federal
Police for the purposes of its lawful
functions shall be held securely and
treated as confidential.
....."

13. The appellant did not rely on any lawful authority or excuse under Regulation 13(1) or any authorisation under General Order 17A.

14. The first submission is that the fact of the data being on the computer and the fact that McCarthy was the source of the data, were not facts which were communicated by the appellant to Chris Clearihan because both facts were already within the knowledge of Chris Clearihan at the time of the two conversations in question. It is true that the evidence suggests that Chris Clearihan had some belief or suspicion about these matters and further that the conversations were instigated by Chris Clearihan who sought to probe the appellant's knowledge of these matters. Presumably, Chris Clearihan was acting upon some information that he had already received. What exactly that information was is not known because Chris Clearihan did not give evidence. From the evidence of Terrence Clearihan, it is clear that Chris Clearihan had received a warning from his brother, Terrence, that a member of the Australian Federal Police, Constable Bob McCarthy, was likely to be told about the date on the computer files relating to the possession by Chris Clearihan of an unlicensed rifle. There is evidence that Chris Clearihan claimed that he had received information that his name was on the police computer files, but there is no evidence that he received or claimed to have received that information from somebody who had direct knowledge of what was on the police computer files. What is clear is that in seeking to have the appellant confirm what he had heard (whatever that was and from whatever source it came), Chris Clearihan was seeking confirmation from someone who had or was likely to have direct knowledge of what was on the computer files. The appellant was a person who had such direct knowledge. In those circumstances, the confirmation by the appellant of the matters that were put to him by Chris Clearihan amounts, in my view, to a communication.

15. It was further submitted that the appellant "blurted out" the information because he was, in effect, trapped into that situation by Chris Clearihan and accordingly that there was no intention on his part to communicate information. It may well be that there are factual circumstances in which a person may convey information without the intention of doing so, for instance, when reacting in surprise or anger to some stimulus. Clearly, however, it was open to the Magistrate to find that this was not such a factual situation. I have no hesitation in rejecting the submission that the Magistrate's findings should be overturned on the basis that the conveying of the information was somehow or other accidental, involuntary or unintended on the part of the appellant. The fact, if it be a fact, that the appellant's voluntary act resulted from some trick on the part of Mr. Clearihan affords no defence.

16. The last submission of the appellant was that the information relating to the computer data did not come to him "by virtue of his office", because it was not part of the appellant's duty as a member of the Australian Federal Police to obtain the information on Chris Clearihan and because the appellant had obtained that information for his own private purposes. 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 utilization of the opportunity afforded to him as such member to obtain information from the computer files. The fact that he utilized 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.

17. I should mention that there was also a general submission by Mr. Higgins Q.C. on behalf of the appellant that the structure of the Crimes Act 1914 (Cwlth) was such that if the appellant was to be dealt at all under that Act then it would have to be under part VII. That part, as its heading suggests, is concerned with "Espionage and Official Secrets". It is not necessary to consider whether the appellant is guilty of an offence under that Part because, as I have already ruled, he was clearly guilty of both the offences charged under s.70(1).

18. The penalty imposed by the Magistrate was a fine of $250 on each charge. The Magistrate correctly took into account that the appellant, as a member of the Australian Federal Police, was to be treated as a person of good character other than for the commission of these offences. However, in my view, the appellant allowed his position as a member of the Force, who had access to confidential information, to be compromised by his private dealings with a business associate. That business associate was a person about whom the Australian Federal Police had decided to keep information. In my view, the offences not only permitted but required the imposition of a monetary penalty and in the circumstances the fine of $250 on each charge was well within the Magistrate's discretion.

19. The appeals will be dismissed and the convictions and orders of the Magistrate confirmed. The appellant has three months to pay the fines, in default 10 days in each case. I will hear the parties on costs.