Re Andrew Laurence James Mcdermott v Warren Keith Nicholl; Raymond George Sweeny [1989] FCA 21 (17 February 1989)

FEDERAL COURT OF AUSTRALIA

Re: ANDREW LAURENCE JAMES McDERMOTT
And: WARREN KEITH NICHOLL; RAYMOND GEORGE SWEENY
No. ACT G43 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - judicial review - Committal proceedings - Question of statutory construction - Whether exceptional case warranting intervention by the Court.

HEARING

CANBERRA
17:2:1989

Counsel for the applicant: Mr B.J. Salmon, Q.C.

and Mr B. Hull

Solicitors for the applicant: Allan R. Nelson & Co.

Counsel for the second respondent: Mr B.T. Sully Q.C.
and Mr M.J. Lawler

Solicitor for the second respondent: Director of Public Prosecutions

ORDER

The application be dismissed.

The applicant pay the second respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

On 17 August 1988, pursuant to s.94 of the Magistrates Court Ordinance 1930 (A.C.T.), Andrew Laurence James McDermott ("the applicant") was committed to take his trial before the Supreme Court of the Australian Capital Territory for the following offences -

(a) an offence against s.70(1) of the Crimes
Act 1914 (Cth) that at Hobart in the
State of Tasmania between 15 May and 30
June 1987, then being a Commonwealth
officer, he did communicate to a person
to whom he was not authorised to
communicate it a document which came
into his possession by virtue of his
office and which it was his duty not to
disclose;
(b) an offence against s.115 of the Crimes
Act, 1900 (NSW) in its application to
the Australian Capital Territory that
between 20 February and 15 September
1987 he did dishonestly use a computer,
namely, the Wang VS100 mainframe located
in the Edmund Barton Building and
maintained by the then Department of
Primary Industry, with intent to obtain
a gain for Timothy Alan Roberts; and
(c) an offence against s.71(1) of the Crimes
Act 1914 (Cth) that between 7 January
and 2 November 1987 he did steal certain
documents being property belonging to
the Commonwealth.

The three offences are related in the sense that they arise out of a course of conduct alleged to have been engaged in by the applicant in the course of his employment with the Australian Fisheries Service of the then Department of Primary Industry.

2. Pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"), the applicant has applied to this Court for an order of review quashing the decision to commit him for trial for the offence against s.115(1) of the Crimes Act, 1900 in its application to the Australian Capital Territory (hereinafter referred to as "the Crimes Act"). That section provides:

"(1) A person who, by any means, dishonestly
uses, or causes to be used, a computer or other
machine, or part of a computer or other machine,
with intent to obtain by that use a gain for
himself or herself or another person, or to cause
by that use a loss to another person, is guilty
of an offence punishable, on conviction, by
imprisonment for 10 years.
(2) In this section, 'machine' means a
machine designed to be operated by means of a
coin, bank-note, token, disc, tape or any
identifying card or article."

The words "gain" and "property" are to have the meanings respectively assigned to them in s.93 of the Act, unless the contrary intention appears. "Gain", as so defined, "means a gain of any property, whether temporary or permanent, and includes the keeping by any person of any property that he or she already has". So far as material for present purposes, "property" is defined to mean any real or personal property and to include a chose in action and any other intangible property, other than an incorporeal hereditament.

3. The ground upon which the order of review is sought is expressed in the application in the following terms -

"The ground of the application is that the
decision involved an error of law, namely, that
Section 115(1) of that Act applies to the facts
disclosed in the evidence at the hearing in that:
(a) there was no evidence that any gain
could be obtained by the use made of the
computer by the applicant;
(b) the evidence disclosed that no gain
could be obtained by the use of the
computer alone;
(c) section 115(1) of the Act, on its proper
construction, does not apply either to
the use made of this computer or to this
type of computer."

4. At the hearing, the applicant tendered (Exhibit "A") what was described as an agreed summary of the evidence given before the Magistrates Court. Counsel for the second respondent, the informant in the committal proceedings, made it clear that the summary was agreed for the purpose of the present proceeding only. The summary is as follows:

"1. The Commonwealth, through the Australian
Fishery (sic) Service of the Department
of Primary Industry and Energy, had
responsibility for fishing from the
three mile limit to the two hundred mile
limit in an area of sea from the south
east of Victoria and the east of
Tasmania known as the South Eastern Trawl.
2. Up until 1986 fishing in the area was
controlled by the Australian Fishery
Service granting approvals to individual
fishermen (or corporations) and licences
being granted to particular boats.
3. After August 1986 the Australian Fishery
Service notified fishermen that a boat
replacement policy had been approved.
This involved boat units being allocated
to fishermen depending on their existing
licences and the measurements of boats
already endorsed to fish the south
eastern trawl.
4. Thereafter existing boats were measured
and gradually through late 1986 and
during 1987 a computerised register was
created of licensed fishermen and of the
boat units to which they had become
entitled under the new policy.
5. The relevant scheme creating this system
had been approved by the appropriate
Minister but the legislative basis of
the scheme did not exist until 5 February 1988.
6. The boat unit register comprised a
computer database. A series of files
contained all the information which had
been used to create the computer database.
7. For most of the relevant time the
applicant was solely responsible for the
compilation of the computer based boat
unit register.
8. By September 1987 a reconciliation
between the files and the details on the
computer was underway. At that time the
files were correct.
9. As at 10 September 1987 one boat owner
Rigil Kent Pty Ltd had a computerised
account which the applicant had created
and which showed that company as having
relevantly 158 boat units to which it
was not entitled.
10. This created surplus provided the number
of units which the applicant was then
able to transfer into an account created
by him for the purpose in the name of Roberts.
11. As at 14 September 1987, the Rigil Kent
register was correct but a computer file
had been created by the applicant which
credited 158 units to a Mr Tim Roberts
by the transfer of 158 units from the
Rigil Kent Register. Mr Roberts was not
entitled to 158 units. There was no
paper file document to support the
holding by Mr Roberts of the 158 boat units.
12. Notwithstanding the lack of Regulations,
it had been assumed, rightly or wrongly,
that fishermen entitled to boat units
could trade in them. Fishermen could
sell their boat, their licences and
their units or they could have their
entitlements cancelled, keep their boat
and having sold their entitlements to
someone else the purchaser would
necessarily need a suitable boat to make
use of such units.
13. Such transfers had already been approved
and recorded by this AFS before
September 1987. There is evidence that
boat units had been traded at a value of
$3,000.00 per unit.
14. The relevant computer was a main frame
computer with work stations. A person
operating the computer did so by
connecting power to the work station and
using a key board. The operator did not
have to use a coin, bank note, token,
disc, tape or identifying card or
article. To access the boat unit
register part of the computer records a
pass word had to be keyed in at the work
station.
15. Inside the main frame computer there
were reels of tape and discs of the kind
normally found in computers. They were
activated by the operation of the keys
on the work station."

5. There is a threshold question whether the Court should, in the exercise of its discretion, decline to entertain the application. This threshold question arises because it is well established, as the applicant recognised and accepted, that the jurisdiction of the Court to review a decision to commit an accused person for trial is to be exercised very sparingly and only in most exceptional cases.

6. The matters identified by the applicant as sufficiently exceptional to attract the Court's intervention were these. It was said that the offence was a recently created offence which was introduced into the law of the Australian Capital Territory on 1 January 1986 by the Crimes (Amendment) Ordinance (No. 4) 1985 (ACT), that it had not been the subject of judicial decision, that the questions raised were questions of law only going to the proper construction of the statutory provision and that the case did not require an intricate examination of the evidence before the Magistrates Court or raise any question of admissibility, reliability or sufficiency of evidence.

7. In my opinion, the factors relied upon by the applicant are not, of themselves, sufficient to warrant the Court, in this case, intervening in the ordinary course of the criminal process. It is, of course, true to say that some of the factors relied upon by the applicant are factors to which the Court has, in particular cases, given weight in deciding to intervene. But, I do not consider it to be correct to say that the Court should intervene whenever it can be shown that the only question raised is one of statutory construction not depending upon any detailed examination of the evidentiary material received during the course of the committal proceedings. Some additional factor must be present to establish the necessary exceptional circumstances. The fact that the offence is of recent creation and has not been judicially considered is hardly an exceptional circumstance.

8. In the present case, the applicant has been committed for trial for three offences which are, in the sense I have mentioned, related. In the course of his trial, the proper construction of s.115 of the Crimes Act will be a matter for the trial judge. I can see no justifiable basis for saying that that question should be isolated and dealt with in advance of the trial, particularly as the questions raised as to "gain" and "property" arise in relation to a consideration of the evidence concerning the intention of the accused, a point somewhat obscured by the way in which particulars (a) and (b) of the ground set out in the application are drafted. The evidence relating to the three offences clearly overlaps to some extent and it cannot be suggested that to arraign the applicant upon the charge under s.115 of the Crimes Act as well as upon the other two charges upon which he has been committed will unduly lengthen the trial or otherwise cause him substantial prejudice.

9. The application is, therefore, dismissed. The applicant must pay the second respondent's costs.