Computer-related offences are hard to pin down due to advanced technology. However, legislators have enacted laws that regulate and penalize computer offenses, one of which is the offence of possession of data with intent to commit serious computer offence.
The offense of possession of data with intent to commit serious computer offence
Section 308F of the Crimes Act 1900 is the governing law for this type of offence. The law says that any person who is in possession or has control of data with the intention of committing a serious computer offence, or with the intention of facilitating the commission of a serious computer offence, whether it is committed by this person or by another person, is guilty of the offence.
Actions that constitute the offence of possession of data with intent to commit serious computer offence
Just what exactly “possession or control of data” means is provided by the same provision of law. Possession or control of data includes the following:
- possession of a computer or device for data storage that holds or contains the data or documents wherein the data is recorded; and,
- control of data stored in a computer which is in the possession of another person whether in NSW or outside of NSW.
The following are serious computer offences that are punishable under Crimes Act 1900:
- Section 308C which is the unauthorized access, modification or impairment of data with intent to commit a serious indictable offence;
- Section 308D which is the unauthorized modification of data with intent to cause impairment;
- Section 308E which is the unauthorized impairment of electronic communication;
- Similar conduct (meaning that the conduct is covered by the offences enumerated in Section 308) that is committed in another jurisdiction and is considered as a crime there is likewise considered a crime in NSW
Meaning of “intent”
The usage of the word “intent” in the law basically means that even if there is no consummation of the crime as long as there was an intention to commit the crime a person can still be held liable under Section 308F.
Under Section 308F a computer offence is still committed if a person’s actions are used to facilitate the commission of the offence by another person.
What the Police must prove
The police will have to prove beyond reasonable doubt that:
- the accused possessed or control data;
- had the intention to commit or facilitate the commission of a serious computer offence;
- the serious computer offence was perpetrated by the defendant or by another person (another accused)
- absence of lack of intent to commit or facilitate the commission of a serious computer offence
- the attempt to commit an offence does not constitute an offence under Section 308F(4) of the Crimes Act 1900
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.