An update my post about the bikies convicted of contempt of the CCC: they've been sentenced, most to 2 years. The story's on WAtoday.
Allbeury, the guy who swore at the Commissioner, also swore at Martin CJ, and got three months extra for his trouble.
UPDATE: The judgment has been published.
Showing posts with label supreme-court-wa. Show all posts
Showing posts with label supreme-court-wa. Show all posts
Friday, February 4, 2011
Wednesday, February 2, 2011
Infographic: What the WA Supreme Court did in 2010
With the help of the miracle of computers, I've created this chart of first-level catchwords of the cases decided by the WA Supreme Court (not including the Court of Appeal) in 2010, which gives an interesting overview of where the court spends its time. Mouse-over a section for more info. (Update: This does not work in the RSS feed - please click through to the blog see the chart.)
Topics the WA Supreme Court considered in 2010
[2010] WASC cases by catchword
Methodology
Catchwords
Catchwords are the way the court categorises issues decided upon in a case. For example, the catchwords for one case read:
Practice and procedure - Application for summary judgment - Whether the defendant has an arguable defence - Turns on own factsAny case can have any number of sets of catchwords. For example, another case has the following two sets of catchwords:
Arbitration - Award of arbitrator - Application for leave to appeal on question of law - Whether various findings by arbitrator provide strong evidence of or amount to a manifest error of law
Arbitration - Application to set aside award for misconduct - Whether arbitrator breached rules of natural justice by determining an issue not pleaded - Factors governing the exercise of the discretion to set aside awardConstruction of the chart
- Every 2010 WASC decision was downloaded, and the keywords extracted.
- The first catchword from each set was extracted (the part before the first dash). For example, the first catchwords from the above sets are "Practice and procedure", "Arbitration" and "Arbitration".
- Similar catchwords were merged. For example, "Criminal law and procedure" was combined into "Criminal law". Another example: "Real property", "Indefeasibility", "Sale of land", etc., were all combined into "Property".
- The merged catchwords were counted and the results charted above.
The merging process, and the catchwords themselves, are inexact. Therefore the results, while indicative, should not be relied upon for anything serious.
Sunday, January 16, 2011
Breaching an Acceptable Use Policy a Criminal Offence
We generally expect that 'hacking' --- illegally gaining access to the computer systems of another --- would be a criminal offence. (Out of deference to the computer community, 'cracking' will be used for the remainder of the post.) And we generally expect that breaking the acceptable use policy at work is something deserving --- at most --- of being fired.
However, at the core of both is the unauthorised use of a restricted-access computer system. And that is an offence under the Criminal Code (WA). Section 440A(2) reads:
So breaching an AUP could, at least conceivably, land you in jail: ss (2)(b).
But would it ever happen?
Yes, and a conviction was just upheld in the WA Supreme Court --- Giles v Douglas [2011] WASC 14.
Ms Giles was a WA police officer. While working in the Northern Territory some years ago, she met a "RA", a police officer, and they became friends. RA separated from his wife around 2002, and RA's wife took custody of their children and moved to WA. RA's wife had been abused as a child, and had drinking and domestic violence issues. Ms Giles moved to WA in 2004.
On 27 March 2009, Ms Giles was contacted by RA. He told Ms Giles that his wife had just died, and as such, he had concerns about the children. Ms Giles set about making inquiries about the children.
Some of the inquiries she made were searches of the police database. Upon logging into this database, all users were presented with the following warning:
The Magistrate didn't buy it, and Ms Giles failed in her appeal to the Supreme Court. To be clear, Ms Giles wasn't convicted for breaching police secrecy, or improper disclosure of information --- she was convicted for common cracking. She used the restricted-access system other than in accordance with her authorisation: s 440A(2)(b).
So What?
The decision is fully in accordance with the law --- although whether it's the right decision on the facts is slightly more open. Either way, it highlights the dangerous state of computer offences in WA law. The decision would seem to stand for the proposition that a breach of a contractual or workplace agreement regarding computer use amounts to criminal conduct.
That's casts the net of conduct potentially caught by the section very, very wide. For example, as well as forbidding cross-posting and unlawfully downloading copyrighted material, the acceptable use policy governing my 3G wireless modem contains the following clause:
Would that make me a cracker? No.
Would that make me liable to criminal sanctions? It would seem so.
Is that good law?
However, at the core of both is the unauthorised use of a restricted-access computer system. And that is an offence under the Criminal Code (WA). Section 440A(2) reads:
(2) For the purposes of this section a person unlawfully uses a restricted‑access computer system —
(a) if the person uses it when he or she is not properly authorised to do so; or
(b) if the person, being authorised to use it, uses it other than in accordance with his or her authorisation.UPDATE: To clarify, a "restricted-access computer system" is nothing special. It's defined in the Code as:
a computer system in respect of which —(a) the use of a password is necessary in order to obtain access to information stored in the system or to operate the system in some other way; and(b) the person who is entitled to control the use of the system —(i) has withheld knowledge of the password, or the means of producing it, from all other persons; or(ii) has taken steps to restrict knowledge of the password, or the means of producing it, to a particular authorised person or class of authorised person;
So breaching an AUP could, at least conceivably, land you in jail: ss (2)(b).
But would it ever happen?
Yes, and a conviction was just upheld in the WA Supreme Court --- Giles v Douglas [2011] WASC 14.
Ms Giles was a WA police officer. While working in the Northern Territory some years ago, she met a "RA", a police officer, and they became friends. RA separated from his wife around 2002, and RA's wife took custody of their children and moved to WA. RA's wife had been abused as a child, and had drinking and domestic violence issues. Ms Giles moved to WA in 2004.
On 27 March 2009, Ms Giles was contacted by RA. He told Ms Giles that his wife had just died, and as such, he had concerns about the children. Ms Giles set about making inquiries about the children.
Some of the inquiries she made were searches of the police database. Upon logging into this database, all users were presented with the following warning:
Information contained within the Western Australia Police Computer Systems is confidential, must not be disclosed to unauthorised persons under any circumstances and not be accessed for personal reasons. (emphasis added)This is where she came unstuck, and ended up in court. She was charged under section 440A. She argued that accessing the database in these circumstances was a proper part of her role --- that she would have done the same for "the local butcher", if he had come in with the same story. She also argued that her supervisor had authorised the searches, or alternately that she had an honest and reasonable belief that she was authorised to do the searches.
The Magistrate didn't buy it, and Ms Giles failed in her appeal to the Supreme Court. To be clear, Ms Giles wasn't convicted for breaching police secrecy, or improper disclosure of information --- she was convicted for common cracking. She used the restricted-access system other than in accordance with her authorisation: s 440A(2)(b).
So What?
The decision is fully in accordance with the law --- although whether it's the right decision on the facts is slightly more open. Either way, it highlights the dangerous state of computer offences in WA law. The decision would seem to stand for the proposition that a breach of a contractual or workplace agreement regarding computer use amounts to criminal conduct.
That's casts the net of conduct potentially caught by the section very, very wide. For example, as well as forbidding cross-posting and unlawfully downloading copyrighted material, the acceptable use policy governing my 3G wireless modem contains the following clause:
The service is provided for interactive use. However, if automated programs or programs that maintain a persistent connection to a remote service are used, they must only be used when you are physically present at the computer. These activities include (but are not limited to) automated file downloading, IRC ‘bots’, continuous streaming media and peertopeer file sharing applications. (emphasis added)So if I set the latest set of system updates downloading overnight, I'd be breaching the AUP. I'd then be accessing the restricted-access computer system belonging to my ISP in excess of my authorisation.
Would that make me a cracker? No.
Would that make me liable to criminal sanctions? It would seem so.
Is that good law?
Tuesday, December 21, 2010
Contempt of the CCC: CCC v Wallace, and others
The Supreme Court decisions in CCC v Wallace [2010] WASC 390, Smith [2010] WASC 396, Silvestro [2010] WASC 398, and Allbeury ([2010] WASC 399), delivered orally on the 13th, have been published.
Coverage of the decision can be found on ABC News Online.
The crux of the CCC's complaint was that the four had refused to answer questions. Mr Allbeury was also accused of insulting the Commissioner.
The primary judgment is that of Wallace, where the lawyers raise a number of mostly technical arguments, none of which were accepted. Smith, Silvestro, and Allbeury are shorter judgments incorporating the Wallace decision.
The first argument was that the certificate issued by the CCC to begin the proceedings went "beyond that which is permissible within the scope of s 163(1) of the CCC Act" because it did more than merely state 'the act or omission' that is said to constitute the contempt, taking "the document beyond the scope of a certificate which is valid to confer jurisdiction upon the court". Martin CJ held that, taking this view to the logical conclusion, it would make it impossible to include anything other than a bald description of the conduct alleged to constitute contempt --- it would not even be permissible to include the question asked. Rather, "the proper scope of the certificate will be determined by reference to the scope of the contempt alleged.
Furthermore, even if the certificate was technically irregular, the irregularity did not prejudice the accused, so the irregularity would be waived.
Secondly, it was argued for the accused that the CCC "failed to discharge the burden of proof by failing to prove the validity of what is described as an 'extraordinary powers finding' made by the Commissioner". A technical discussion of the Act follows, ultimately concluding that it was not open to a person summoned to appear before the CCC to hold off challenging the validity of extraordinary powers until they are called up for contempt charges --- they would be expected to make that challenge before the CCC first. The "colateral challenge" therefore failed.
The other cases proceeded upon similar lines.
On the less serious end of the spectrum, one of the more humorous submissions made by Mr Allbeury's counsel, regarding the alleged insult of the Commissioner, was dealt with in [14]-[15] of that decision. (Emphasis added)
Coverage of the decision can be found on ABC News Online.
The crux of the CCC's complaint was that the four had refused to answer questions. Mr Allbeury was also accused of insulting the Commissioner.
The primary judgment is that of Wallace, where the lawyers raise a number of mostly technical arguments, none of which were accepted. Smith, Silvestro, and Allbeury are shorter judgments incorporating the Wallace decision.
The first argument was that the certificate issued by the CCC to begin the proceedings went "beyond that which is permissible within the scope of s 163(1) of the CCC Act" because it did more than merely state 'the act or omission' that is said to constitute the contempt, taking "the document beyond the scope of a certificate which is valid to confer jurisdiction upon the court". Martin CJ held that, taking this view to the logical conclusion, it would make it impossible to include anything other than a bald description of the conduct alleged to constitute contempt --- it would not even be permissible to include the question asked. Rather, "the proper scope of the certificate will be determined by reference to the scope of the contempt alleged.
Furthermore, even if the certificate was technically irregular, the irregularity did not prejudice the accused, so the irregularity would be waived.
Secondly, it was argued for the accused that the CCC "failed to discharge the burden of proof by failing to prove the validity of what is described as an 'extraordinary powers finding' made by the Commissioner". A technical discussion of the Act follows, ultimately concluding that it was not open to a person summoned to appear before the CCC to hold off challenging the validity of extraordinary powers until they are called up for contempt charges --- they would be expected to make that challenge before the CCC first. The "colateral challenge" therefore failed.
The other cases proceeded upon similar lines.
On the less serious end of the spectrum, one of the more humorous submissions made by Mr Allbeury's counsel, regarding the alleged insult of the Commissioner, was dealt with in [14]-[15] of that decision. (Emphasis added)
... [I]n answer to 14 separate questions posed by the Commissioner and counsel assisting, ... Mr Allbeury answered by telling the Commissioner to 'fuck off' or to 'get fucked'.
It is said that I should conclude that that evidence does not constitute a contempt by insulting conduct. The proposition, it is said, is that mere abuse does not of itself amount to contempt of court. It seems to me that the difficulty with that submission is that the course of conduct identified by the certificate and which I have seen depicted in the DVD was not mere abuse; it was an abusive, derogatory and contemptuous response ...
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