Obiter

Cobb v Queensland Police Service (2023) 3 QDCR 123

In this appeal against conviction, the Court held that a mobile phone constitutes a “computer” for the purposes of s 408E of the Criminal Code Act 1899 (Qld) — unauthorised access to a password-protected mobile phone amounted to misuse of a “restricted computer”.¹

COURT: District Court (Queensland) — Appellate Division (Dearden DCJ).

PROCEDURAL HISTORY: After a trial in the Magistrate Court,² the appellant was convicted of computer hacking and misuse,³ released on $900 recognisance to be of good behaviour for 18 months; no conviction recorded.⁴

FACTS:

The appellant, formerly in a relationship with the complainant (a police officer) accessed her WhatsApp and Facebook Messenger applications on her old Samsung mobile phone.⁵ The complainant’s mobile phone was password-protected, and the appellant was neither given the password nor had permission from the complainant to access it.⁶

ISSUES:

1. Whether the magistrate erred in applying an improper construction of s 408E⁷ — that the explanatory memorandum supported the conclusion that accessing a mobile phone was a “restricted computer”?⁸
2. Whether the magistrate erred in applying an improper construction of s 408E⁹ to the facts — that the definition of “computer” and “restricted computer” under the provision is directed at a computer connected to a system or network?¹⁰

RELEVANT LAW:

Criminal Code Act 1899 (Qld) — s 408E

The basic offence under section 408E(1) of the Criminal Code Act 1899 (‘Criminal Code’) is the use of a “restricted computer” without the consent of the computer’s “controller”.¹¹ Subsection 408E(5) relevantly defined:¹²

408E Computer hacking and misuse
…
“computer” means all or part of a computer, computer system or computer network and includes, for example, all external devices connected to the computer in any way or capable of communicating with each other as part of a system or network.
“controller” means a person who has a right to control the computer’s use. …
“restricted computer” means a computer for which—
(a) a device, code or a particular sequence of electronic impulses is necessary in order to gain access to or use the computer; and
(b) the controller—
(i) withholds or takes steps to withhold access to the device, or knowledge of the code or of the sequence or the way of producing the code or the sequence, from other persons; or (ii) restricts access or takes steps to restrict access to the device or knowledge of the code or of the sequence, or to the way of producing the sequence, to a person or a class of person authorised by the controller.
“use“, of a restricted computer, includes accessing or altering any information stored in, or communicate information directly or indirectly to or from, the restricted computer, or cause a virus to become installed on or to otherwise affect, the computer.¹³

Explanatory Memorandum

The new section will contain three new offences. Firstly, a person who uses a restricted computer without the consent of the computer’s controller commits a simple offence and is liable to imprisonment for two years. … it is a defence to any of the charges to prove that the use of the restricted computer was authorised, justified, or excused by law.¹⁴

Acts Interpretation Act 1954 (Qld) — s 14B

Section 14B of the Acts Interpretation Act 1954 relevantly provides:

14B Use of extrinsic material in interpretation

(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation—
(a) if the provision is ambiguous or obscure—to provide an interpretation of it; or
(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or
(c) in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision. … ¹⁵

COURT’S REASONING:

Deardon DCJ reasoned that the magistrate was not in error in referring to the explanatory memorandum, as section 14B(1)(c) of the Acts Interpretation Act 1954 permits its use “to confirm the interpretation conveyed by the ordinary meaning of the provisions”,¹⁶ even where there is no ambiguity. The appellant’s interpretation of the definition of “computer” was viewed by Deardon DCJ as straining the statutory words to the “limits of credulity”.¹⁷

The applicant submits that the text of the definition of “computer” and “restricted computer” indicates that the provision is directed at a computer connected to a system or network restricted by the controller.¹⁸ Deardon DCJ stated that ‘such a submission must fail on a reading of the ordinary use of the language contained in the definition of computer in s 408E(5).’¹⁹ Deardon DCJ explained at [20]-[21] that the provision provides (emphasis added):

Computer means all or part of a computer …
The words which then follow extend the definition to cover a “computer system” or
a “computer network”, and also, inclusively, covers:
All external devices connected to the computer in any way …
… and the definition clearly contemplates that as an alternative aspect of a “computer”.²⁰

Dearden DCJ clarified that a “computer” under s 408E(5) is not confined by whether the device is part of a system or network.²¹ His Honour said at [22] that:

… [A] computer may well operate completely and entirely divorced from any system or network connections but remains a computer, and the definition clearly contemplates that as an alternative aspect of a “computer”.²²

In applying the provision to the facts, Deardon DCJ affirmed that the complainant’s mobile phone (i.e. a computer) is password-protected, which is a code that enabled the “controller” (i.e. complainant) to restrict access to the device (a computer).²³ The unauthorised access by the appellant, without the complainant’s permission or consent, satisfied all elements of the offence.²⁴ Furthermore, there was no evidence of any authorisation or lawful excuse.²⁵

DECISION AND ORDER:

Held. The appeal was dismissed on all grounds. The learned Magistrate’s use of the explanatory memorandum was appropriate to confirm the ordinary meaning of s 408E (Computer hacking and misuse),²⁶ as permitted under s 14B(1)(c) of the Acts Interpretation Act 1954.²⁷

The Court held that the magistrate correctly interpreted “computer” and “restricted computer” under s 408E of the Criminal Code.²⁸ A mobile phone constitutes a “computer” for the purposes of the offence, where access is restricted by a password, and use without consent satisfies the offence,²⁹ irrespective of whether it is connected to any system or networks.³⁰

SIGNIFICANCE:

Cobb v Queensland Police Service (2023) 3 QDCR 123 demonstrates that unauthorised access to a personal, password-protected mobile phone without consent constitutes misuse of a restricted computer, amounting to an offence under s 408E of the Criminal Code. The maximum penalty under s 408E(1) is 3 years imprisonment.³¹

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FOOTNOTES:

1. Cobb v Queensland Police Service (2023) 3 QDCR 123 (‘Cobb‘). ↩︎
2. Ibid [1], Deardon DCJ cited Jenkins v Commissioner of Police [2021] QDC 289, [7]–[9]: Appeal proceeds pursuant to Justices Act 1886 (Qld) (‘JA’) s 222 and is a rehearing (JA s 223): at [5]. ↩︎
3. Cobb (n 1) [1]; Criminal Code Act 1899 (Qld) s 408E (‘Criminal Code‘). ↩︎
4. Cobb (n 1) [2]. ↩︎
5. Ibid [6]. ↩︎
6. Ibid. ↩︎
7. Criminal Code (n 3). ↩︎
8. Cobb (n 1) [3]; Criminal Code (n 3). ↩︎
9. Criminal Code (n 3). ↩︎
10. Cobb (n 1) [4]; Criminal Code (n 3). ↩︎
11. Criminal Code (n 3) s 408E(1). ↩︎
12. Ibid s 408E(5). Section 408E was subsequently renamed ‘Misuse of restricted computer’. ↩︎
13. Ibid; Cobb (n 1) [15]; Appellant’s Outline of Submissions [14]: at [8]. ↩︎
14. Cobb (n 1) [10]; Explanatory Notes, in respect of the Criminal Code s 408D, subsequently renumbered s 408E. ↩︎
15. Acts Interpretation Act 1954 (Qld) s 14B(1) (‘AIA‘). ↩︎
16. Ibid s 14B(1)(c); Cobb (n 1) [11]. ↩︎
17. Cobb (n 1) [11]. ↩︎
18. Ibid [18]. ↩︎
19. Ibid [19]. ↩︎
20. Cobb (n 1) [20]–[22]; Criminal Code (n 3) s 408E(5). ↩︎
21. Cobb (n 1) [22]. ↩︎
22. Ibid. ↩︎
23. Ibid [23]; Criminal Code (n 3). ↩︎
24. Cobb (n 1) [24]–[25]; Criminal Code (n 3). ↩︎
25. Ibid. ↩︎
26. Criminal Code (n 3). Subsequently renamed ‘Misuse of restricted computer’. ↩︎
27. Cobb (n 1) [11]–[13]; AIA (n 15). ↩︎
28. Criminal Code (n 3). ↩︎
29. Cobb (n 1) [23]–[24]. ↩︎
30. See Cobb (n 1) [22]. ↩︎
31. Criminal Code (n 3) s 408E(1). The basic offence under s 408E(1). ↩︎