Anderson v Commissioner of Police [2024] QDC 198

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v Commissioner of Police [2024] QDC 198 PARTIES: ANDERSON, Tully (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D52/24 DIVISION: Appeal PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Caloundra DELIVERED ON: 22 November 2024 DELIVERED AT: Brisbane HEARING DATE: 15 November 2024 JUDGES: Smith AM DCJA ORDER: 1. The appeal is dismissed. 2. The Magistrate’s decision is confirmed. CATCHWORDS: CRIMINAL LAW – CRIMINAL OFFENCES – INTERFERENCE WITH PROPERTY – OFFENCES OF COMPUTER HACKING – where it is alleged the appellant a police officer unlawfully accessed the QPS computer system – whether the access was unlawful – whether the access was for work purposes or personal purposes – whether the appellant obtained a benefit – whether the prosecution proved its case beyond reasonable doubt CRIMINAL LAW – CRIMINAL OFFENCES – OFFENCES OF DISHONESTY – Dishonesty and Fraud – whether the prosecution had proved the appellant was dishonest by accessing the QPS computer system – whether it was proved the appellant had obtained a benefit EVIDENCE – PROOF IN CRIMINAL CASES – STANDARD OF PROOF – where circumstantial case – whether the prosecution proved that guilt was the only rational inference – whether the prosecution excluded hypotheses consistent with innocence – whether there was a reasonable hypothesis the access to the QPS computer system was for work purposes -- 1 of 33 -- 2 Criminal Code 1899 (Qld) ss 1, 408C, 408E Domestic and Family Violence Protection Act 2012 (Qld) ss 8, 100 Information Privacy and Other Legislation Amendment Act 2023 (Qld) s 4 Justices Act 1886 (Qld) ss 222, 223 Sale of Goods Act 1896 (Qld) ss 14, 15, 54 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, applied Director of Public Prosecutions v Raines (1995) 79 A Crim R 448, cited Edwards v R [1993] HCA 63; (1993) 178 CLR 193, applied Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied George v Rockett [1990] HCA 26; (1990) 170 CLR 104, discussed Ex Parte Patmoy re Jack (1944) 61 NSW WN 228, cited Laurinda Pty Ltd v Capalaba Park Shopping Centre [1989] HCA 23; (1989) 166 CLR 623, cited McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612; (2017) 269 A Crim R 582, applied Peacock v R [1911] HCA 66; (1911) 13 CLR 619, applied Plomp v R [1963] HCA 44; (1963) 110 CLR 234, applied R v Bossley [2012] QSC 292; [2015] 2 Qd R 102; (2015) 230 A Crim R 370, cited R v Carr-Briant [1943] 1 KB 607, cited R v Dillon; ex parte Attorney-General [2015] QCA 155; [2016] 1 Qd R 56; (2015) 253 A Crim R 492, applied R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562, cited R v Saba [2013] QCA 275; [2014] 2 Qd R 408; (2013) 235 A Crim R 144, applied Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, applied Salter v Director of Public Prosecutions (NSW) [2011] NSWCA 190; (2011) 81 NSWLR 192; (2011) 209 A Crim R 576, applied COUNSEL: Mr M Black for the appellant Mr A Stark for the respondent SOLICITORS: Gilshenan & Luton Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] This an appeal pursuant to s 222 of the Justices Act 1886 (Qld) against convictions on the appellant for three counts of computer hacking1and one count of fraud.2 1 Section 408E of the Criminal Code. 2 Section 408C of the Criminal Code. -- 2 of 33 -- 3 [2] The appeal is a rehearing on the evidence given before the Magistrate.3 The court is required to conduct a real review of the trial and the Magistrate’s reasons and make its own determination of the relevant facts in issue from the evidence, giving due deference in attaching a good deal of weight to the Magistrate’s view.4 Nevertheless, in order to succeed on such an appeal, the appellate must establish some legal, factual or discretionary error.5 [3] With respect to findings of fact based on the assessment of witnesses, an appeal court should not set aside the primary court’s findings unless the findings are contrary to uncontested testimony, glaringly improbable or contrary to compelling inferences.6 Charges [4] The appellant faced the following charges: 1. That on 9 August 2021 at Beerwah he used a restricted computer without the consent of the Commissioner of the Queensland Police Service its controller and he thereby gained a benefit namely access to confidential information. 2. That on 10 August 2021 at Beerwah he used a restricted computer without the consent of the Commissioner of the Queensland Police Service its controller and he thereby gained a benefit namely access to confidential information. 3. That on 11 August 2021 at Beerwah he used a restricted computer without the consent of the Commissioner of the Queensland Police Service its controller and he thereby gained a benefit namely access to confidential information. 4. That on 10 August 2021 at Beerwah he dishonestly gained a Personal Property Security Register Check (“PPSR”) for himself and he was an employee of the Queensland Police service. [5] In the particulars for each of charges 1, 2 and 3 the prosecution alleged the appellant intended to gain a benefit namely confidential information.7 [6] Following a trial he was found guilty of all charges. He was fined the sum of $2,500 with no convictions recorded. Summary [7] The allegation was that the appellant, a serving police officer, accessed a restricted computer without the consent of the Commissioner of Police intending to gain a benefit namely confidential information. The access to this information was on 9, 10 and 11 August 2021. The alleged confidential information included access to QPRIME records of a person by the name of Ms Joy Cammell, her son Mark Hepenstall, registration details of a boat and trailer and a Personal Property Security 3 Section 223 of the Justices Act. 4 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]; McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612; (2017) 269 A Crim R 582 at [47] . 5 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23]. 6 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43] 7 Exhibit 9. -- 3 of 33 -- 4 Register check. It was alleged this access was not for official purposes but for private purposes as the appellant bought the boat and trailer from Ms Cammell. [8] The fraud related to the obtaining a free PPSR check (or REVS check) which would usually cost $2.00. Admissions [9] Formal admissions were made by the parties pursuant to s 644 of the Criminal Code as follows: (a) At all material times in July and August 2021, the appellant was employed as a Sergeant Shift Supervisor of the Beerwah Police Station by the Queensland Police Service. (b) The QPS uses a computer system called QPRIME for recording information and occurrences. (c) The QPRIME system is a restricted computer within the meaning of s 408E of the Criminal Code. (d) The Commissioner of Police is the “computer’s controller” within the meaning of s 408E of the Criminal Code. (e) The Commissioner has authorised police officers to use the QPRIME system for “official purposes relating to the performance of their duties.” (f) The authorisation is contained in the QPS standard practice section 4, 15 and 16 and provides: “4 Conflicts of Interest Section 1.2 of the Code of Conduct specifically outlines the obligation of a public service employee to demonstrate commitment to integrity and impartially whilst fulfilling their responsibilities. In satisfaction of this objective, members are to arrange their private affairs in a manner that will prevent any actual or apparent conflict of interest from arising whenever foreseeable. Further, members are to ensure as far as practicable there is no conflict between their personal interests and the impartial fulfillment of their official duties and responsibilities. All conflicts of interest relating to a member’s employment with the Queensland Police Service will be resolved in favour of the service and the public interest. However, members are not to be subject to unreasonable restrictions on their private activities purely as a result of their employment within the service. Members in satisfying their obligations under this section are to comply with the provisions on outside employment as outlined in the procedural guidelines for professional conduct policy. 15 – Improper use of information, communication technology All Queensland Government agencies are guided by the Cabinet endorsed “Use of Internet and Electronic Mail” policy and principle statement and information standard 38. The Queensland Police Service’s policy regarding the misuse of ICT facilities and devices is primarily contained in the Information Management Manual. Anyone found to have misused ICT devices or facilities potentially faces a range of penalties including dismissal. -- 4 of 33 -- 5 16 – Improper use of QPS information In the performance of official duties, members of the Queensland Police Service are granted lawful access to many sources of information, confidential or otherwise. With this access comes a requisite level of accountability and trust the information will only be used for official purposes. There is no excuse for members to betray the public trust by making any unauthorised, improper, or unlawful access or use of any official or confidential information available to them in the performance of their duties. When dealing with official or confidential information of the Queensland Police Service, members are not to access, use or release information without an official purpose related to the performance of their duties.” (g) The Information Management Manual (“IMM”) is a direction that all users of the QPS ICT facilities and devices must comply with, including police officers. (h) Appendix A of s 4.11 of the IMM lists examples of unauthorised use of QPS computers. (i) Section 4.13 of the IMM sets out the system access control policies of the QPS. (j) All users of the QPRIME system are allocated a unique user ID and secure their logon with a password. (k) On accessing the QPRIME system, a screen is displayed with a warning “Warning conditions of access and use of this computer system” under a 5 paragraph warning. (l) A user is required to click ok to proceed past the warning system. (m) The user is forced to input a reason for accessing the QPRIME system before being able to use it. (n) A user’s access of the QPRIME system is recorded in audit logs. (o) QPS computers must be used in compliance with the Code of Conduct for the Queensland Public Service. They are not to use confidential or privileged information to further personal interests (section 4.4). (p) The Police Commissioner emailed a direction to all staff on 30 March 2016. (q) The Commissioner and her predecessor have issued reminders to all QPS employees about accessing the system only for work related purposes on 31 December 2018, 6 November 2019, 20 July 2020, and 6 May 2021. (r) The defendant was rostered to perform duty at the Beerwah Police Station on 2pm to 11pm shifts on 9, 10 and 11 August 2021. He did perform duty between those hours on 9 and 10 August but arrived late on 11 August commencing after 3pm and concluding at 11pm. (s) Throughout the month of July 2021 up until 9 August 2021, Joy Cammell was the owner of a boat and trailer registered ZD576Q. (t) On 21 July 2021, the boat was the subject to a call for service with the QPS. Mr Ward was advised to remove the number plate from the trailer and the put the boat and trailer on to the footpath and to contact the Council. He did this -- 5 of 33 -- 6 but got into trouble with the Council and therefore moved the boat and trailer back on to his property and called the police again. (u) On 28 July 2021, the boat was the subject to a call for service with the QPS. (v) On 28 July 2021, officers from the Beerwah Police Station including Senior Constable Moore spoke to Mr and Mrs Ward and to Ms Cammell and a street check was created. (w) A week or so after 28 July 2021, Officer Moore and her partner spoke to the appellant at the Beerwah Police Station and informed him of the call for service involving the boat. This included the fact that Ms Cammell was looking to sell the boat and she was concerned her son was wanting to sell the boat himself and keep the proceeds. During the conversation Officer Moore provided the appellant with the contact details of Ms Cammell. (x) On 9 August 2021, the appellant using his unique user ID accessed QPRIME to search on registration ZD576Q and opening and viewing the details of Ms Cammell and her son Mr Hepenstall. (y) On 10 August 2021, the appellant using his unique user ID accessed QPRIME at 2.39pm and searched ZD576Q and opened the record. He then created a task for the Release Unit Police, the unit responsible for conducting personal property security register check, stating “PPSR request – hull identification number AUBLUD8289L010; vehicle is abandoned on a property and not reported stolen however may be of interest to a finance company.” (z) The appellant further opened Ms Cammell’s record at 2.58pm and until 3.04pm conducted further searches on the vehicles and vessels registered to Ms Cammell and updated the task at 3.10pm to include a trailer with a VIN number. (aa) On 10 August 2021 at 6.18pm, the appellant opened the task again and at 6.20pm provided an update to the task “please provide PPSR regarding this boat and trailer (numbers) boat appears to be abandoned and possibly hiding from finance company.” (bb) This task was linked to Ms Cammell’s record. (cc) A PPSR check shows whether or not a vehicle is encumbered. (dd) On 10 August 2021 at 11.25pm, the task was marked completed by the release unit police noting “vehicle search certificates linked to occurrence.” The PPSR certificates were uploaded. (ee) On 10 August 2021 at an unknown time during the appellant’s shift, Ms Cammell attended the Beerwah Police Station where she sold the boat to the appellant and was issued with a receipt dated 10 August 2021 recording the sale. (ff) A forensic examination was later undertaken of the QPS computer the appellant used at the Beerwah Police Station. The computer contained a desktop folder for the defendant’s user ID. The audit identified a file called “boat.docx” was created by the appellant at 10.43pm on 9 August 2021 which was printed at 10.45pm. This document contained five images which were QPRIME screenshots specifically being images of QTMR records for the boat and trailer. -- 6 of 33 -- 7 The images included a reference to the boat and trailer not being vehicles of interest and Cammell as the primary operator not being a person of interest. (gg) The forensic audit also identified a document created by the appellant at 7.45pm on 10 August 2021 which set out the receipt to be signed by Ms Cammell. (hh) On 11 August 2021, the appellant again accessed QPRIME using his unique user ID to search the registration. (ii) On 11 August 2021, the appellant arrived late for work towing the boat and he told a number of officers at the station he had purchased it. (jj) On 11 August 2021 at 3.09pm, the QTMR registration records were updated to reflect the fact that the boat was registered in the appellant’s name. (kk) Senior Sergeant Brendan Davis, the officer in charge of the Beerwah Police Station, was the direct supervisor of the appellant. At no time did the appellant declare any conflict of interest in the purchase of the boat. The OC did not grant him an exemption under the IMM for personal use of the QPS computer system. (ll) On a date prior to 9 August 2021 the appellant completed a QPS online learning product called “accessing QPS information.” (mm) Parts of the IMM and Public Service Code of Conduct were attached to the admissions. Oral Evidence Officer Moore [10] Joanne Moore a senior constable of police gave evidence that she was stationed at Beerwah Police Station. On 28 July 2021 at about 11.30am, she received a phone call from a Ms Ward who complained she had a boat at her premises and she had spoken to the police the week before and was told the Council would come and pick it up if they put it on the footpath but the Council was not happy with this.8 [11] As a result Officer Moore went around to try and work it out for them at around midday. The boat was blue aluminium on a trailer on the footpath outside of the residence at 2 Bella Court Landsborough with a motor attached and some fishing gear with an old rego sticker and plate. Some checks were conducted on the iPad and it came back as unregistered but it had been registered to a Joy Cammell. The searches showed that the boat was not stolen and had been left at 2 Bella Street, Landsborough. [12] They returned to the police station and Officer Moore was able to get Ms Cammell’s details to find out why the boat was there. They then drove to Donnybrook and met with Ms Cammell, a lady in her 60’s. She told them that the boat had belonged to her husband but he was deceased and she was hiding it from her son so he didn’t sell it. She was desperate for money and she did not want him having the money. She was being kicked out on a warrant of possession. Officer Moore said that if she knew someone who was interested in buying the boat she could pass on Ms Cammell’s details and Ms Cammell agreed. Officer Moore got the new phone number of Ms 8 Transcript page 4.25. -- 7 of 33 -- 8 Cammell.9 Her phone number was recorded on QPRIME. Officer Moore told Ms Cammell that she should get a permit to move the boat. [13] About a week later she saw that the boat was still at the property at Landsborough on the unregistered trailer. She returned to the police station and was talking about the boat with Officer Handley.10 [14] The appellant was in the duty sergeant area and he asked what she was talking about and Officer Moore explained that the job she had done and the boat was still there. They had put in details and photos of the boat on to QPRIME.11 It had not been reported stolen.12 [15] Officer Moore explained to the appellant that Ms Cammell wanted to sell the boat. She knew that the appellant “buys and sells stuff” and said to him “if you’re interested she’s happy for me to give the details over.” Officer Moore then wrote down the name and phone number of Ms Cammell on a piece of paper and gave it to the appellant and showed him a photo of the boat that she had on her phone.13 She later spoke to her boss Senior Sergeant Davis. [16] In cross-examination, the witness agreed that the appellant had relieved as officer in charge and senior sergeant for a number of periods. She also agreed that he held the position as a sergeant and shift supervisor. She agreed that some of his duties included providing leadership supervision, advice and support to staff as necessary, controlling resources both internal and external and looking at effective management techniques aimed at service delivery, crime protection and detection, ensure proactive tasking including investigations and patrols are conducted to enhance the role of the service in the community.14 [17] Officer Moore said that she had acted as a sergeant and that she had never had to check that a street check was done properly.15 She had been an officer for 30 years.16 [18] She confirmed that Ms Cammell said the boat originally belonged to her husband and that she was hiding the boat.17 She also said that her husband had bought a Nissan Patrol and a boat and had only made one payment to the bank before he died and she was concerned it might be repossessed.18 [19] She was concerned for the car and the boat. She accepted that the depriving a finance company of the lawful possession of the boat would constitute an offence if it was sold without the finance company being paid back. There was no obligation on her to inform the financier as no offence had been committed at that stage.19 The police would not do anything without a complaint.20 9 Transcript page 5. 10 Transcript page 6.25. 11 Transcript page 6.45. 12 Transcript page 7.5. 13 Transcript page 9.22. 14 Transcript pages 11-12. 15 Transcript page 12.25. 16 Transcript page 13.6. 17 Transcript page 13.30. 18 Transcript page 13.45. 19 Transcript page 14.17. 20 Transcript page 14.25. -- 8 of 33 -- 9 [20] She thought that the issue concerning the son sounded a “little dodgy.” She accepted the comments made by Ms Cammell could have in fact been financial abuse by the son.21 [21] She agreed it was possible that the conversation with the appellant was on 9 August.22 [22] She agreed that she told the appellant about Ms Cammell, her situation and about her sons and her concerns about potential financial abuse. She also told him about only one payment being made on the boat and trailer and the Nissan and it was possibly under finance. She also gave the contact details of Ms Cammell to the appellant because he might have been interested in purchasing the boat.23 [23] The witness agreed there was an impound coordinator on the Sunshine Coast who was responsible for vehicles which came into the possession of the QPS. There was an impound holding yard at the Beerwah Station.24 She assumed that the impound coordinator would conduct a REVS check. [24] She accepted that looking up whether a vehicle was encumbered or not can be a QPS related purpose but she was unaware that they could do it on QPRIME.25 [25] She accepted that one of the uses of street checks from a supervisor’s perspective could be to monitor repeat calls for service for intel purposes.26 [26] She accepted it would be the duty of her sergeant to try and prevent the Wards from having further problems with the Council but she thought she had done this.27 [27] In re-examination, she gave evidence to the circumstances in which a vehicle could be impounded by the police. There was no need to tow this particular vehicle. The vehicle was not stolen and was not a danger to traffic.28 Officer Kethro [28] Senior Constable Paul Kethro was stationed at Beerwah Police Station on 9 and 10 August 2021. He had reviewed police records to refresh his memory.29 [29] He was working on 10 August 2021. The appellant was his shift supervisor. During the shift he spoke to the Appellant on the phone at about 5 to 5.30pm.30 [30] On 9 August 2021, he was doing a 2pm to 11pm shift the same as the appellant. They attended a number of jobs that evening. [31] At about 8.30pm they went past Bella Street in Landsborough and the appellant pointed out an address. The appellant pointed out a boat in the front yard of the 21 Transcript page 14.45. 22 Transcript page 15.15. 23 Transcript page 15.32. 24 Transcript page 17.17. 25 Transcript page 17.42. 26 Transcript page 18.5. 27 Transcript page 18.12. 28 Transcript page 19.30. 29 Transcript page 20.20. 30 Transcript page 21.12 -- 9 of 33 -- 10 address stating he was thinking about buying it.31 The appellant had not actually purchased it.32 [32] He accepted in cross-examination he went back to the ITAS logs to try and work out the dates that he had been working with the appellant. He had no independent recollection of it.33 He confirmed that the appellant was on duty both 9 and 10 August. He also rejected the proposition that the conversation as to the boat happened on 10 August rather than 9 August.34 Officer Davis [33] Senior Sergeant Davis gave evidence that he was the officer in charge of the Beerwah Police Station. He was the supervisor of the appellant. [34] In late August 2021, he was in the police station and overheard a conversation in the day room between Senior Constable Moore and Senior Constable Michael Collins. The conversations were with respect to the boat and trailer. As a result of that he came to understand that Senior Constable Moore and Officer Handerly had attended a call for service in relation to a boat and following that job, the appellant had purchased the boat.35 He also became aware the appellant had arrived late for work after bringing the boat to work with him.36 [35] Officer Davis later conducted checks on a QPS computer and later in late August/early September 2021 had a conversation with the appellant outside of his office. He said “Tully can I speak with you for a moment.” He said “sure.” He put to him that he heard that he had purchased the boat off an old lady after the crew had attended the job. The appellant admitted he was late for work as he had been at a physio appointment and had picked up the boat earlier. He didn’t have the time to take it home after the physio. Officer Davis said “well what my concern is that you’ve utilised the work computer system to access the information in relation to the lady’s details. Have you used the computer system to conduct checks or have you obtained any of the details the lady’s details using ALCAD?” His reply was “no not at all I obtained those details from Senior Constable Moore.”37 [36] In the following days, Officer Davis spoke to Senior Constable Moore who said she did provide the details of the lady’s address and contact details.38 [37] On 26 April 2022, Officer Davis became aware of searches on the QPRIME system namely electronic serial number certificate searches that had been uploaded namely REVS checks. He got Moore into the office and they looked at the entry and the appellant’s name was on as the requesting officer for the task.39 31 Transcript page 22.7. 32 Transcript page 23.35. 33 Transcript page 23.17. 34 Transcript page 23.25. 35 Transcript page 27.10. 36 Transcript page 27.14. 37 Transcript page 28.15. 38 Transcript page 28.30. 39 Transcript page 29.41. -- 10 of 33 -- 11 [38] As to street checks there is no oversight of them unless they are needed for an investigative purpose.40 They are not vetted by the sergeants.41 [39] In cross-examination, the witness accepted that the appellant had acted as officer in charge and senior sergeant in his position in 2020. It was not the job of the officer in charge to do investigations.42 The actual operation running was left to the sergeants or shift supervisors. He accepted that the appellant had to provide leadership, supervision, advice and support staff as necessary; control available resources through effective management techniques aimed at service delivery, crime prevention and detection; ensure proactive tasking including patrols and investigations are conducted to enhance the role of a service within the community; implement, manage and apply problem solving approaches to bring about improved service delivery and identify and implement appropriate actions for performance management and personal development.43 [40] The sergeant on the shift is responsible for making sure there was an appropriate response to calls for service. He expected his sergeants to try and stop repeat calls for service.44 He was aware that on 28 July 2021 Officer Moore attended the job at Bella Street regarding the boat. A week later the boat was still in the same position. [41] He didn’t accept there would be ongoing calls for service in relation to the boat.45 A repeat call would be something greater.46 [42] He was aware that the owner of the boat, Ms Cammell, told Officer Moore on 28 July that the boat belonged to her deceased husband and he had heard that the husband had made one payment with respect to either the car or boat. She was concerned about the son taking the boat.47 He said he did not think there was enough detail to make an assessment of domestic violence.48 [43] He also said that if the boat was being hidden at the Ward’s address to prevent finance from reclaiming it that it was not an offence until there was a complaint.49 They would not investigate unless there was a complaint.50 [44] He agreed he made his statement about 12 months after the conversation with the appellant. With respect to the conversation about whether he had done any checks, he distinctly asked him in relation to computer checks and then in relation to ALCAD.51 Officer Hurst [45] Detective Inspector Hurst gave evidence that he was detailed to investigate the appellant’s case. He had access to the iTask program which records shifts for officers 40 Transcript page 30.32. 41 Transcript page 31.10. 42 Transcript page 31.10. 43 Transcripts page 33. 44 Transcript page 34.15. 45 Transcript page 34.42. 46 Transcript page 34.45. 47 Transcript page 35. 48 Transcript page 35.42. 49 Transcript page 36.37. 50 Transcript 36.45. 51 Transcript page 38.44. -- 11 of 33 -- 12 and work units. His specifically looked through the appellant’s shifts for 9, 10 and 11 August. At the time he was the shift supervisor at Beerwah Police Station working 2pm till 11pm. [46] With respect to REVS check, as a private citizen they cost $2.00. The REVS check in this case was initiated by way of activity report on QPRIME by the appellant.52 The appellant declined to be interviewed. [47] In the period 10 August 2021 until 24 June 2022, a search revealed that the appellant did no other REVS checks under this unique user ID or unique email address.53 With respect to the REVS check requested on 10 August 2021 at 1440 hours, the results were attached to the street check occurrence at 2325 hours. They were not opened until 2350 hours on 11 August 2021. [48] Exhibit 10 showed contact between the Beerwah Police and Ms Cammell. At 2114 on 10 August 2021, there was an SMS message from the appellant to Ms Cammell. [49] One of the phone calls was about 13 minutes. The first phone call was at 3.05pm on 10 August 2021. Submissions by the prosecution [50] The prosecutor submitted that it was not in dispute that the appellant was a police officer, he did the relevant checks and he was provided with sufficient training in relation to accessing information. That particular training was conducted on 7 January 2021. The Information Management Manual allows for some personal use including personal banking but authorised use must be used only for official police business. This is repeated in appendix A. [51] The prosecution case was that the appellant used QPRIME for a personal reason namely to purchase the boat and trailer. Users could only access the ICT resources for official purposes. The appellant never made a conflict of interest declaration to Sergeant Davis. It was clear there was a conflict of interest here. The prosecution relied on the emails sent by the various commissioners as to not using the systems for private use. [52] In relation to the admissions, on 9 August 2021 the appellant conducted a search on the boat using his user ID. It was submitted that the appellant had already formed some interest in buying the boat and the confidential information was useful to him. It was beneficial to him to assist him making informed decision about the purchase of the boat. [53] Turning then to 10 August 2021, the records showed that the appellant logged in at a station and conducted a fast enquiry concerning ZD576Q. He then created a task to the release unit to obtain a REVS check at 2.39pm. He further opened her records at 2.58pm and 3.04pm conducting further searches on a number of vehicles and vessels registered to her and updated the task with respect to the trailer. The appellant was clearly concerned about the trailer as well as the boat. 52 Transcript page 42. 53 Transcript page 44.12. -- 12 of 33 -- 13 [54] On 10 August 2021, Ms Cammell attended the Beerwah Police Station where the sale was negotiated. There was a file on the appellant’s computer containing the QPRIME screenshot. The forensic audit also located the contract of sale. If the appellant had a legitimate and official reason for conducting the QPRIME checks he would not need to store them on a separate folder. [55] On 11 August 2021, he searched the boat registration again and viewed the task. He was late for work and registered the boat at 3.09pm that day. It would not be accepted that he was investigating financial abuse or elder abuse as there was no corresponding QPRIME activity in that regard. [56] In relation to the fraud charge, he achieved a $2 saving. The street check by Senior Constable Moore required no intervention from the appellant and his computer use arose from a conflict of interest and a personal interest rather than a work interest. Defence submissions [57] The defence referred to the terms of s 408E in its written submissions. It was submitted concerning the access on 9 August 2021, that the appellant was informed of the call for service involving the boat about a week after 28 July 2021. The appellant first conducted a QPRIME check on 9 August 2021. It was submitted that the duties of shift supervisors include checking subordinate officers’ work. There is evidence that Senior Constable Moore was informed by Ms Cammell of a possible domestic and family violence issue with her son and was told by her the boat may be subject to finance. There was a suspicion the boat may have been hidden to avoid repossession. Such conduct would arguably amount to the offence of unlawful use of a motor vehicle. Therefore, in accordance with his duties the appellant had an obligation to check the policing response which would include undertaking computer checks regarding lawful ownership of the boat and trailer. The Crown were unable to exclude beyond reasonable doubt the purpose of the access was not in accordance with that duty. [58] The access charge for 10 August 2021 must also fail for the same reasons. There was no evidence to exclude the possibility the access was for the purpose of ascertaining that the vehicle was encumbered for the purpose of alerting the financier as to the whereabouts and allowing for its recovery. There was no benefit proved for the access on 10 August. [59] With the 11 August access, Senior Constable Moore provided the appellant with information relating to the boat and trailer. There was no evidence he obtained any additional confidential information at that date. The results of the PPSR are not confidential. The court could not be satisfied that the only reason he accessed QPRIME was for his personal interest in buying the boat and not for a work related purpose. [60] As to the fraud charge, the Crown allegation was the benefit received was the PPSR report. There was no evidence that the QPS paid this sum. By the time he accessed the PPSR results, he had already entered into the contract for the purchase of the boat and trailer and had collected it. He did not obtain any personal benefit as a result. Also, dishonesty could not be proved beyond reasonable doubt. There was no evidence to exclude reasonable hypotheses consistent with innocence. -- 13 of 33 -- 14 [61] In oral submissions, it was submitted that the Magistrate could not convict on the summary offence because it had to be commenced within 12 months of the commission. It was submitted that the conversation between Officer Moore and the appellant probably occurred on 9 August because that’s what led to the check. It would be accepted that the appellant was told about the possibility of a finance company being involved and of one payment. He was told of the issues concerning the son. [62] With respect to the checks on 10 August, his request for the REVS check was concerning the interest to a finance company. That was consistent with the information Officer Moore had given to him. Also, there was no reason for him to be doing the REVS check when he was concerned about abandoned property and being hidden from a finance company unless that was true. There was evidence on the QPRIME log that he had gone into the domestic violence entries in relation to them, their histories and complaints. This was consistent with checking on potential financial abuse. It should also be borne in mind there were two occasions of callout with respect to the boat and potentially there could be further calls for service. The disclosure by Moore to the appellant about potential domestic violence and unlawful possession or fraud regarding a finance company permitted him to conduct the checks. There was no additional advantage proved with the checks on 11 August or 10 August. The REVS check was not confidential information. Also, it was conducted after the contract was executed. It was submitted there could be a dual purpose accessing. Decision [63] The Magistrate referred to the agreed facts of the matter. Senior Constable Moore and her colleague became aware through a street check on or about 28 July 2021 that a boat and trailer were parked on a footpath outside the residence in Landsborough. The owner of the boat had placed it there to try and hide from her son. The owner had contacted the police for assistance. A week or so later during a drive by Officer Moore saw the boat was in the same position. Later, Officer Moore with the owner’s permission provided the owner’s name and phone number to the appellant as Officer Moore thought the appellant was potentially interested in purchasing the boat and trailer. Shortly after having been given this information the appellant made enquiries through QPRIME. The issue in the case was whether the appellant obtained confidential information in his role as a police officer or whether he accessed the information for his personal use. [64] The Magistrate found the appellant gained a benefit in that he was able to confirm through his QPRIME enquiries that the owner of the boat and trailer was in fact Ms Cammell and that the items were not encumbered to any other person or entity which might affect his capacity to purchase them. [65] On 9 August 2021, his initial search was for the registration ZD576Q. Also, he opened and viewed the details of Ms Cammell and her son Mr Hepenstall. On 10 August 2021, there was a further search and the appellant created a task seeking additional information namely a PPSR request. He provided an identification number which must have been obtained from 9 August. At 11.25pm on 10 August 2021 the vehicle search certificates were received and uploaded to a private folder created by the -- 14 of 33 -- 15 appellant.54 Also, there were searches of the registration records at 10.51pm and the registration records had been updated at 3.09pm showing that he had purchased the boat and trailer. [66] The Magistrate held with reference to the relevant policies that the computer system could only be used for official police purposes and not purely personal and not a mixture of police and personal reasons. She noted that all three police witnesses gave evidence it was not usual for a shift supervisor to look at street checks unless an investigation about the subject matter was undertaken. Also, it was not usual for a shift supervisor to investigate potential crimes unless a complaint had been issued or specific information had been perceived warranting further investigation. None of the police officers involved considered that domestic violence was an issue. The request for information was specific to the registration details of the boat, its trailer and any finance. At no stage did the appellant tell Officer Davis that he had made enquiries because he was concerned concerning the abandonment of the boat, a crime on the finance company or domestic violence. The evidence is he told his supervising officer he had not accessed QPRIME which was untrue. [67] Ultimately, the Magistrate was satisfied that the appellant had accessed the computer with the intention of obtaining confidential information for a personal benefit. The contract of purchase was apparently conditional upon the fact there were no encumbrances. It was accepted that the phone calls took place after the conversation with Officer Kethro on 9 August. It was found there was no reasonable alternative inference consistent with innocence open on the evidence. [68] In the circumstances, each of the accessing charges were proved beyond reasonable doubt. [69] As to the fraud charge, the appellant agreed he had undertaken the PPSR search through QPRIME. The case is he saved himself $2 by accessing the information in the way he did and gained that benefit to himself. In this case, the appellant sought and obtained the information in order to satisfy himself that his intended purchase and subsequent acquiring of the boat and trailer were lawful and not likely to be affected by an encumbrance and to ensure the registration had been transferred to him. His access to the information was dishonest in that he knew that his duty was not to access such information for personal purposes. [70] In the circumstances, he was found guilty of that charge also. Submissions by the appellant Appellant’s submissions [71] The appellant submits that the Magistrate’s verdicts of guilty involved several errors and were against the weight of the evidence and the known facts. The appellant refers in detail to the evidence given at trial. It is submitted that the admitted facts demonstrated the appellant had the Commissioner’s consent to use the QPRIME computer for “work related use.” It was for the prosecution to prove that his use on each relevant date was without consent and had to prove to the appellant’s use of the computer was not work related. 54 As will be explained later, this finding was an error. -- 15 of 33 -- 16 [72] It is submitted that the Magistrate became distracted by finding the issue was whether the appellant did access the information for his personal use, whether the information was accessed for personal use or official police purposes or both and if he used the information for personal use. The Magistrate said the use could only be for official police purposes not for purely personal use or a mixture of police and personal reasons. [73] It is submitted the Magistrate erred in asking these questions. It is submitted the correct question was had the prosecution proved beyond reasonable doubt the absence of consent by showing the appellant’s purpose for accessing the computer on each date was not work related. [74] It is further submitted the Magistrate made three critical errors of fact. The first fact she found was that at 11.25pm on 10 August 2021 the PPSR searches were received and uploaded to a private folder created by the appellant. It is submitted the formal admission was the QPS computer used by the appellant contained a desktop folder with the “boat.docx” file created on 9 August 2021. It contained QPRIME screenshots, screenshots of the records for the boat and trailer. There was no further evidence about the use of the desktop folder. The formal admission was that at 11.25pm on 10 August 2021 the PPSR certificates were uploaded into the QPRIME records. Further, there were no formal admission the computer folder was created or that it was a private folder. The PPSR records were not uploaded to any desktop folder, private or otherwise, but were uploaded to the QPRIME task number. The Magistrate’s finding was in error. [75] The second finding challenged is that the Magistrate found that the appellant told his supervising officer that he had not accessed QPRIME with respect to Ms Cammell. She further found this was untrue. [76] It is submitted that the question by Senior Sergeant Davis related to a QPS computer system called ALCAD a job despatch type program. It is submitted the question to the appellant did not relate to QPRIME and therefore it could not be found there was a lie. [77] The third error it is alleged is that the Magistrate erred in finding the contract of purchase was conditional upon there being no encumbrances. It is submitted that there was no evidence of a condition in the contract of purchase. [78] The appellant submits that when a real review of the evidence is undertaken the court could not be satisfied the prosecution discharged its onus of proof that access to the QPRIME was not work related. It is submitted that the opening and viewing of the details on 9 August 2021 was consistent with the appellant’s role as Officer Moore’s supervisor and conducting a check of the street check. [79] It is further submitted that the request on 10 August 2021 and the entries attached thereto were consistent with the information given by Officer Moore to him namely the boat was unwanted and further it might be of interest to a finance company. It is submitted the submission of the request for a PPSR was consistent with his role to try and stop repeat calls for service. This was a QPS related purpose. It is also submitted that Kethro’s recollection of the date must be mistaken especially as he worked with the appellant on 10 August 2021. -- 16 of 33 -- 17 [80] With respect to the access on 11 August 2021, the appellant took possession of the boat and registered it in his name at 3.09pm. At about 10.50pm he accessed QPRIME and conducted a search on the registration and viewed the task. It was submitted there was no evidence he obtained any details as a result from the PPSR task. It is submitted the evidence left open a rational inference inconsistent with guilt namely that he accessed QPRIME to monitor and address a repeat call for service in his role as sergeant and as Senior Constable Moore’s supervisor. This inference was not excluded by the prosecution. Further, it could not be excluded that the appellant accessed QPRIME for a mixed personal and work related purpose which would not be sufficient to discharge the prosecution’s onus of proving absence of consent. In those circumstances, it could not be proved beyond reasonable doubt there was an absence of consent for the appellant’s access to QPRIME. [81] Even if the prosecution was able to prove absence of consent, it is submitted that it could not be proved that the appellant obtained a benefit. It is submitted that the prosecution must be able to prove that some identifiable benefit can be inferred or likely to follow. It is firstly submitted that the search on 9 August 2021 did not put him in a superior position. [82] As to the search on 10 August 2021, it does not identify any information he accessed but only that he created and submitted a request for a PPSR check. Even if he accessed further information the prosecution did not identify any relevant advantage or information to put him in a superior position. [83] As to the third charge, it is submitted the PPSR certificates had been uploaded on the evening of 10 August 2021 and there was no evidence that he viewed these certificates or obtained information from them on 11 August 2021. It is further submitted that a PPSR check was publicly available through other websites and the prosecution did not prove the information was confidential. [84] Further, there was no advantage in gaining access to the PPSR results on 11 August 2021 as he had already purchased the boat. [85] As to the fraud charge, the appellant submits that proof of dishonesty was an essential element. For the reasons already outlined, the prosecution failed to prove that the appellant did not have the Commissioner’s consent to use the relevant computer. There was a rational inference open that the PPSR check was for “work related use.” Further or alternatively, it is submitted that the appellant failed to obtain any benefit from the PPSR check firstly because there is no evidence he actually accessed or obtained details from the certificates and second the checks were publicly available for a cost of $2 and there were other websites which provided PPSR’s. [86] In those circumstances, it was not proved that he was placed in any superior position to anyone else. In those circumstances, the conviction should be set aside. [87] In oral argument Mr Black submitted: (a) There was no lie to Officer Davis. First the question related to ACLAD and/or Ms Cammell’s details. In any event even if there was a lie it could not be shown that this showed a consciousness of guilt as to the offence but more rather concern for a disciplinary processes for failing to reveal a conflict of interest. (b) Officer Kethro was mistaken as to the date of the conversation. -- 17 of 33 -- 18 (c) It was arguable that the boat was abandoned on the Wards’ property. (d) As to charge 1, it cannot be excluded that on 9 August 2021 the appellant conducted the searches concerning an outstanding call for service and/or a concern about domestic violence. (e) As to charge 2, it cannot be excluded that the searches were conducted to resolve the outstanding issue concerning the finance company. (f) As to charge 3 this was a follow on from the searches on 10 August and finalised the task. (g) It is submitted that the prosecution could not prove the case if it was a mixed official/private purpose. Respondent’s submissions [88] The respondent submits that the “confidential information” accessed for the three charges were QPRIME records of Ms Cammell and Mr Hepenstall, registration details of a boat and trailer and the PPSR check. The respondent summarises some of the evidence given by each of the witnesses. [89] As to the issue of absence of consent, the prosecution does not accept the appellant’s criticism of the test posed by the Magistrate. If the Magistrate was not satisfied the access was not solely for a work related purpose then it was for personal use. At the trial, the Magistrate was told that in order to prove the relevant use the court needed to be satisfied beyond reasonable doubt the only reason the appellant accessed QPRIME was for his personal interest in buying the boat and not for a work related purpose. The email directives made it clear that any access to official information that is not authorised is unlawful and furthermore users can only use police information for an official purpose. [90] The Magistrate had also observed that the appellant had in the past completed a training course on 7 January 2021 and the training made it clear that access to the computer system and use of any information on it was for authorised users only and he was not authorised to access the information for personal use. [91] It is submitted that the submission made by the appellant that he accessed QPRIME to monitor and address a repeat call for service was inconsistent with the evidence of Officers Moore, Kethro, and Davis. At no time did the appellant raise any concerns as to a repeat call for service. There are no issues as to any domestic violence. Also, Sergeant Davis gave evidence that this was not a “repeat call for service.” There was no need according to law to bring the boat and the trailer into police possession. The conversation with Senior Constable Kethro in the evening of 9 August 2021 is also highly relevant concerning the access. Officer Kethro was certain that the appellant said that he was going to buy the boat or had agreed to buy it. This revealed the appellant’s interest in it. Also, the file found on the computer on 9 August 2021 contained images from QPRIME concerning records of the boat and trailer. This showed that the trailer, the boat and Ms Cammell were not persons of interest. It is submitted that if the appellant had official reasons for conducting the QPRIME checks he would not need to store them in a separate folder. It is clear in those circumstances that the PPSR checks were not work related, they were to discover whether the boat was of interest to a finance company before he proceeded with the -- 18 of 33 -- 19 purchase. It is of significance that there were no PPSR checks between 10 August 2021 and 24 June 2022. Based on the evidence the Magistrate correctly found that the access to the records was for personal use and not for a work-related purpose or a mixture of both. [92] As to the finding that the appellant uploaded the PPSR certificates on the evening of 10 August 2021 to his personal folder it is conceded this was an error and misconstrued the admission. It is submitted that this is not a critical error as the Magistrate relied on several other facts to find that the access was for personal use and not for a work-related purpose. [93] As to the finding concerning the lie it is submitted there is no error of fact. The evidence from Officer Davis made it clear he was concerned that the appellant had used the work computer to access Ms Cammell’s details and/or to conduct checks. He failed to inform Ms Davis that he did in fact access QPRIME in relation to Ms Cammell and viewed her records. At no stage did he voice his concerns about the possibility of domestic violence or a repeat call for service during his conversation with Sergeant Davis. He lied to Sergeant Davis. [94] As to the issue of encumbrance. It is submitted that the contracts once signed by Ms Cammell made it clear that the purchase of the boat and trailer proceeded on the basis there were no monies owing on them. In other words, they were not encumbered. Although there was no direct evidence the PPSR checks were viewed by him, the admissions identified that the certificates were linked to the street check occurrence on the evening of 10 August 2021 by the Release Unit Police and the occurrence was opened and viewed by the appellant the next day. The only reasonable inference is the appellant requested the information for his personal interests and to satisfy him that the purchase of the boat and trailer were not likely to be affected by an encumbrance. This condition was inserted into the contract and confirmed. [95] The particulars were that the prosecution was required to prove that the appellant intended to gain a benefit. With respect to the search on 9 August 2021 the confidential information was beneficial to him as there were concerns about whether the boat was encumbered and/or whether there was an interest to a finance company. On that occasion he viewed and opened the records of Ms Cammell and her son. [96] With respect to the 10 August 2021 this was the task for the PPSR check of the boat. There were further searches done that day. The hull identification and the VIN for the trailer must have come from the search conducted the previous day. The release of the PPSR certificates were linked to the street check occurrence. This is the additional information the appellant had intended to obtain on 10 August 2021. It was in fact obtained. [97] On 11 August 2021, the appellant conducted another search on the registration number and opened and viewed the task attached to the street check occurrence. The additional information confirmed him as being the owner of the boat and trailer. [98] The benefit to the appellant was confidential information available on QPRIME to allow him to make an informed decision about his intended purchase. It gave him insight into Ms Cammell’s circumstances and in particular whether there was a dispute over ownership of the boat following the death of her husband. A member of -- 19 of 33 -- 20 the public would not have been armed with the same level of information that the appellant was able to gain from his checks on QPRIME. This put him in a superior position. [99] As to the submission made that there was no evidence the appellant viewed the PPSR certificates, although there was no direct evidence on this the admissions identified that he accessed and viewed the street check on 11 August 2021. The certificates were linked to the occurrence the night before. The only reasonable inference open is that he did in fact view the results. [100] There was no need for him to access the occurrence otherwise. [101] The results of the PPSR check were confidential. To otherwise obtain the checks was through a government website where they could be obtained for a fee of two dollars. It does not matter that the same or similar information could be obtained through an official website by a member of the public. [102] It is finally submitted that based on the timeline of events the admissions and the evidence of the police officers the Magistrate correctly held that the appellant sought and obtained the information in order to satisfy himself that the purchase of the boat and trailer was registered to Mrs Cammell was not likely to be affected by an encumbrance as well as to ensure the registration had been subsequently transferred to him. [103] With respect to the fraud, it is submitted that it can be inferred there was dishonesty. The request for the PPSR certificates was not for a work-related purpose. He had a personal interest in the boat which was evidenced by the conversation with Officer Kethro on 9 August 2021. His request for the PPSR check was not to avoid a repeat call for service or ensure the boat was not abandoned but rather for his personal interest. The only reasonable inference is that he did view the results on 11 August 2021. He avoided the payment of a two dollar fee. It was confidential information obtained from a restricted computer. In the circumstances he did dishonestly obtain a benefit. [104] In oral submissions Mr Stark submitted: (a) The denial of conducting “computer checks” was the lie and it did not matter whether he was concerned about a conflict of interest of disciplinary action. The fact is it was a denial of using the computer for personal use. (b) Officer Kethro was not mistaken as to the date of the conversation. (c) As to charge 1, there was insufficient evidence to raise a suspicion of domestic violence. Also the context of the searches made it more likely that it was for personal purposes. (d) This was not a case where there was a concern as to a repeated call for service. (e) He never told anyone he was doing this. (f) The boat was not abandoned and saying this was deceitful. (g) As to charge 2 and 3 there was no policing requirement to investigate any finance issues. What he had been told was Ms Cammell wanted to sell the boat. -- 20 of 33 -- 21 The evidence did not give rise to a suspicion of an offence against a finance company. There was no complaint. (h) If there was a “substantial” personal purpose for access then that is sufficient to prove the charge. Discussion Alleged errors [105] As to the first alleged error, it is conceded by the respondent the Magistrate erred in finding that the appellant downloaded the PPSR searches to his desktop file. However the respondent submits this was immaterial in light of the other evidence in the case. [106] I agree with the respondent’s submissions. For the reasons I discuss later on my review of the evidence, I have concluded that the prosecution otherwise established beyond reasonable doubt the elements of each offence. [107] As to the second alleged error, the fact is Ms Cammell warranted that no monies were owed on the boat and trailer and/or such a condition was implied into this contract. [108] If in fact the REVS checks showed an encumbrance to a finance company, the Appellant would have had good reason to terminate the contract for breach of condition55 or affirm it and sue for damages.56 Such a condition would have been implied under the Sale of Goods Act 1896 (Qld) in any event.57 [109] I do not conclude the Magistrate erred in this regard [110] As to the error concerning the alleged lie I accept the respondent’s submissions. I consider that the evidence of Officer Davis made it clear he was talking about computer checks generally. I will deal with the use of this lie later. [111] I do not find any error in that regard. [112] As to the alleged error in her approach, I consider the Magistrate in effect approached the question as being whether the prosecution could prove beyond reasonable doubt that the access was not for work purposes. I consider this was correct and do not consider there was error here. [113] However, even if I am wrong concerning these alleged errors in my view my review of the evidence establishes the guilt of the appellant beyond reasonable doubt and I now turn to this issue and the issue on whether the elements were proved by the respondent. Charges contrary to s 408E of the Criminal Code. 55 Laurinda Pty Ltd v Capalaba Park Shopping Centre [1989] HCA 23; (1989) 166 CLR 623 at pp 643 and 664. 56 Section 14 (1) of the Sale of Goods Act 1896 (Qld). The right to sue for damages is under s 54 of the Sale of Goods Act 1896 (Qld). 57 Section 15 of the Sale of Goods Act 1896 (Qld). -- 21 of 33 -- 22 [114] Section 408E of the Criminal Code 1899 (Qld) provided:58 “408E Misuse of restricted computer (1) A person who uses a restricted computer without the consent of the computer’s controller commits an offence. Maximum penalty—2 years imprisonment. (2) If the person causes or intends to cause detriment or damage, or gains or intends to gain a benefit, the person commits a crime and is liable to imprisonment for 5 years. (3) If the person causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000, or intends to commit an indictable offence, the person commits a crime and is liable to imprisonment for 10 years. (4) It is a defence to a charge under this section to prove that the use of the restricted computer was authorised, justified or excused by law.” [115] The elements of the charge are as follows: (a) The defendant uses59 a restricted computer.60 (b) Without the consent of the computer’s controller.61 (c) The defendant gains or intends to gain a benefit.62 [116] As to the defence in subsection (4) this is to be proved by the defence on the balance of probabilities.63 [117] The two central issues in this case were whether the computer was used without the consent to the Commissioner of Police and whether the defendant gained or intended to gain a benefit. [118] I now turn to the first issue. Was the computer used without the consent of the Commissioner? [119] In order to answer this question it is necessary to look at the scope of the permission given to the person to use the computer system.64 58 I note the section was amended by section 4 of the Information Privacy and Other Legislation Amendment Act 2023 (Qld). 59 This includes accessing see s 408E(5) . 60 “Restricted computer” is defined in s 408E(5). This was admitted (admission 4). 61 A controller is the person with the right to control the use of the computer. It was admitted the Commissioner was the controller (admission 5). 62 Benefit means includes a benefit obtained by or delivered to any person: see s 408E(5). 63 Ex Parte Patmoy re Jack (1944) 61 NSW WN 228 ; R v Carr-Briant [1943] 1 KB 607. 64 Salter v Director of Public Prosecutions (NSW) [2011] NSWCA 190; (2011) 81 NSWLR 192; (2011) 209 A Crim R 576 at [21]-[23]. -- 22 of 33 -- 23 [120] The various documents tendered to the court and admissions made, established that with some limited exceptions (such as internet banking) the QPRIME system could not be used for personal use. [121] The following established that fact: 1. The Commissioner has authorised police officers to use the QPRIME system for “official purposes related to the performance of their duties.” (admission 6). 2. The QPS standard of practice provided (admission 7): (a) Members are to arrange their private affairs to prevent a conflict of interest. (b) When dealing with official or confidential information members are not to access use or release information without an official purpose related to the performance of their duties. 3. The Information Management Manual provides (admission 9): (a) Appendix A of section 4.11 of the IMM sets out examples of unauthorised use of QPS computers, namely all personal use unless otherwise authorised by the policy; use that is inconsistent with the Qld Public Service Code of Conduct (admission 10 and Exhibit 2). (b) Section 4.11.4 of the IMM provides that unless otherwise authorised under the policy QPS ICT facilities and devices must only be used for official QPS business, and professional research and development (Exhibit 2). (c) Section 4.11.4.4 of the IMM provides that while non-business use of ICT resources is generally forbidden the Commissioner has allowed an exception with respect to personal online banking (Exhibit 2). (d) Section 4.11.5.1 provides that unless otherwise authorised by the policy the personal use of QPS ICT facilities and devices is not allowed. (Exhibit 2). (e) On accessing the QPRIME system an access warning appeared (admission 13). (f) The Queensland Public Service Code of Conduct directed police officers on how to manage conflict of interest and “not to use confidential or privileged information to further personal interests (admission 17). (g) The Commissioner had emailed all QPS employees a number of times warning that the system was to be used for work purposes only (admissions 18 and 19 an Exhibit 6). 4. The opening page of the QPS computer screen made it clear that the user was not to access the system for personal reasons (Exhibit 5 page 2). -- 23 of 33 -- 24 5. The appellant had in January 2021 completed the QPS online training which made it clear that the user was not to access the QPS computer system for personal reasons.65 [122] I conclude beyond reasonable doubt that the QPRIME system could only be used for official purposes and not for personal purposes. Was the computer used for personal reasons in this case on the dates alleged in each charge? [123] The case here was a circumstantial one. The question was whether a reasonable hypothesis consistent with innocence could be excluded by the prosecution.66 Also did the prosecution prove that personal use was the only rational inference open of the evidence?67 [124] Of course the judge must have regard to all of the circumstances of the case.68 [125] A credit issue did arise concerning Officer Kethro’s evidence. He gave evidence that on 9 August 2021 he and the appellant drove past the boat after 8.30pm and the appellant told him that he was thinking about buying the boat. He mentioned the price as well.69 [126] In cross-examination he rejected the proposition this conversation occurred on 10 August 2021. [127] It is argued that the witness was mistaken as to the date. It is argued that the fact he mentioned a price shows that the conversation was more likely to have occurred on 10 August 2021. [128] The evidence of Officer Kethro was the price discussion of what the appellant was going to pay for it.70 I consider that in light of all of the evidence the appellant told Officer Kethro the price he was considering paying for the boat. This fits in with the fact that he had not actually bought the boat yet.71 [129] I also note that it is less likely the conversation occurred at about 830pm on 10 August 2021 as the evidence in exhibit 10 shows that the appellant was using the Beerwah station phone at about 835pm. The boat of course was located at Landsborough. [130] Having read the transcript and bearing in mind the Magistrate’s acceptance of his evidence I accept this conversation took place on 9 August. The witness was not shaken in cross-examination and he was careful to check the ITAS logs. I did not find his evidence to be glaringly improbable. 65 Exhibit 8 page 3 and admission 43. 66 Peacock v R [1911] HCA 66; (1911) 13 CLR 619 at pp 634, 661. 67 Plomp v R [1963] HCA 44 ; (1963) 110 CLR 234 at pp 243, 245, 246. 68 Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 at pp 535, 536. 69 Transcript page 22.10. 70 Transcript page 22.12. 71 Transcript page 23.35. -- 24 of 33 -- 25 [131] Also having read the evidence and bearing in mind the findings of the Magistrate I accept the evidence of Officers Moore, Davis and Hurst. I find their evidence credible and reliable. [132] The following were the circumstances proved in this case: 1. From July 2021 to 9 August 2021 Joy Cammell was the owner of a boat and trailer. The registration number of the trailer was ZD576Q (admission 21). 2. On 21 July 2021, the boat was the subject of a service call and the owner of the property was advised to remove the number plate and leave the boat on the footpath and to contact the council (admission 22). 3. On 28 July 2021, the boat was the subject of a second call for service with the QPS (admission 23). 4. Officer Moore attended and spoke to the residents and a street check was created on the QPRIME system (admission 24). 5. Officer Moore checked the registration of the boat and found that it was not stolen and found the name of the last registered owner.72 6. Officer Moore found the name of Ms Cammell and went to her property at Donnybrook. She spoke to Ms Cammell who told them that:73 (a) The boat belonged to her deceased husband. (b) She was hiding the boat from her son so he did not sell it. (c) She said if Moore knew anyone who was interested in selling the boat Moore should pass on her details. (d) Moore advised her to get a permit to move the boat before someone stole it. (e) Ms Cammell also told them that her husband had bought a Nissan Patrol and a boat and he only made one payment to the bank before he died and she was worried about it being repossessed.74 7. About a week after 28 July 2021,75 Officer Moore saw that the boat was still there. This is most likely on 9 August 2021. 8. That day she returned to the police station and was talking about the boat in the presence of the appellant. He asked what they were talking about. 9. Officer Moore told him:76 (a) About the job. (b) That she had asked Cammell to move the boat. 72 Transcript page 5.15. 73 Transcript pages 5-6. 74 Transcript page 13.40. It is not entirely clear if this was both the boat and the car. 75 Most likely 9 August 2021 see transcript page 15.12. 76 Transcript page 9.25. -- 25 of 33 -- 26 (c) That Ms Cammell had concerns about the son selling the boat (admission 25). (d) About the payment on the “Nissan Patrol whatever that is and the boat and trailer.”77 And “the possibility of effectively it being even because it’s also under finance.”78 (e) That Ms Cammell wanted to sell it. She then wrote down Ms Cammell’s details and gave them to the appellant and showed him a photo of the boat. This conversation was not challenged in cross-examination. (f) There was no suggestion by the appellant to Moore that he was going to check her street check or that he was going to start a domestic violence/fraud investigation. (g) I also note that the appellant did not do his “checks” straight after this. He accessed the information after he had started thinking about buying it. 10. On 9 August 2021, the appellant and Officer Kethro drove past the boat at about 8.30pm and at that stage the appellant said he was thinking of buying it. He discussed the price.79 He had not actually purchased it at that point.80 11. About 2 hours later on 9 August at 10.38pm (after the conversation about buying it) the appellant using his unique user ID and accessed QPRIME to conduct a search on ZD576Q and looking at details of Ms Cammell and her son. (admission 26 and Exhibit 7). He also printed out the registration (item 195 Exhibit 7). He obtained the hull number AUBLUD8289L010 (see item 183 exhibit 7). 12. On 9 August 2021 at 10.43pm the appellant created a file called “boat.docx” in his desktop folder. This contained five images of QPRIME screen shots namely images of QTMR records for the boat and trailer. These images included a reference to the fact that the boat and trailer were not items of interest and Cammell was not a person of interest (admission 35). If he was checking on a street check or there would be no need to do this. He could simply look at QPRIME. 13. On 9 August 2021 at 10.45pm the appellant printed the above document (admission 35). 14. I infer that he conducted the activities above as he was considering buying the boat. I infer he obtained the hull number of the boat from the search for the later request he made. He kept these records for ready access. 15. On 10 August 2021 at 2.39pm the appellant accessed QPRIME and searched the registration number again and then created a task for the Release Unit Police (the unit responsible for PPSR checks) requesting a PPSR on the boat 77 Transcript page 15.22. Because of the form of the question it is unclear whether the answer was respect to the Nissan or the boat. 78 Transcript page 15.25. 79 Transcript page 22.12. 80 Transcript page 23.35. -- 26 of 33 -- 27 (admission 27 and Exhibit 7 items 243, 249). A PPSR check is to show whether a vehicle or vessel is encumbered (admission 32). 16. At 310pm he entered the hull identification number and stated “PPSR Request– Hull identification number AUBLUD8289L010; vehicle is abandoned on a property and not reported stolen however may be of interest to a finance company.” (exhibit 7 item 301). 17. I consider the statement that the boat is abandoned to be misleading. It was not and the appellant knew it was not. He knew that Ms Cammell owned the boat and wanted to sell it. 18. On 10 August at 2.58pm until 3.04pm the appellant conducted further searches on the vehicles and vessels registered to Ms Cammell and updated the task at 3.10pm to include the trailer with its VIN number (admission 28 Exhibit 7 items 252-301). 19. I infer that at that stage the appellant had determined to make an offer on the boat and he wanted to check on the title. 20. On 10 August 2021 at 305pm the appellant called Ms Cammell first twice and most likely the call was not answered. (Exhibit 10). 21. On 10 August 2021, the task was reassigned back to the defendant to provide further details. At 6.18pm he added “Boat appears to be abandoned and possibly hiding from insurance company.” (admission 30 exhibit 7 item 353.) 22. The allegation the boat was abandoned was not true. Ms Cammell owned it and wanted to sell it. 23. On 10 August 2021 at about 7.20pm there was a phone call between the two and also at 8.35pm and 8.42pm. An SMS was sent by the appellant to Ms Cammell at 9.14pm (Exhibit 10). 24. On 10 August 2021 at 7.45pm the appellant created a contract of sale/receipt between he and Ms Cammell (admission 36). This included a warranty/condition that the boat, trailer and motor had no monies owing. 25. Sometime on 10 August 2021 Ms Cammell attended the Beerwah police station and sold the boat to the appellant (admission 34). She signed the receipt (admission 37). 26. The inference can clearly be drawn these calls were as to the boat purchase. 27. On 10 August 2021 at 11.25pm the PPSR certificates were loaded into QPRIME (admission 33) 28. On 11 August 2021 at 3.09pm QTMR records were updated to reflect the boat was registered in the appellant’s name (admission 40). 29. On 11 August 2021, the appellant arrived later for work towing the boat. He told a number of officers he had bought the boat (admission 39). -- 27 of 33 -- 28 30. On 11 August 2021 at 10.50pm the appellant searched again for ZD576Q. The vehicle search certificates were linked to the occurrence (admission exhibit 7 items 947-952). 31. I infer he looked at this to check he had clear title and/or it had been transferred to him. 32. At no time did the appellant declare any conflict of interest to SGT Davis (admission 41.) 33. In late August 2021, the appellant told Officer Davis he did not use the computer system to conduct any checks of the lady’s details or in relation to it.81 34. The appellant did not complete any other PPSR request between 10 August 2021 and 24 June 2022 (admission 42). [133] On the last point, this can be proved to be a lie. On the admissions, he did look up both details of the boat and of the lady’s details. In my view this can be proved as an ‘Edwards’ lie82 as: (a) The appellant told a deliberate untruth. He was asked whether he conducted computer checks83 and he denied it when he had in fact done a number of them. (b) This lie was directly concerned with the circumstances of the offences, namely the access to confidential information for personal reasons. (c) I conclude that the defendant knew that the truth would implicate him in their commission. If he told the truth he would thereby show that he had accessed the details for personal reasons. I do not consider there is any other explanation on the evidence aside from this. It does not matter really whether it was a concern as to disciplinary action. It was as to his knowing he used the QPRIME system for personal purposes. [134] I conclude beyond reasonable doubt by reason of the circumstances I have outlined above that the searches were not for official purposes but were for personal purposes as follows: 1. The true purpose of the QPRIME search on 9 August 2021 was to check on the details of the boat and Ms Cammell and her son for the purposes of his purchasing the boat (Count 1). This fits in with his creation of the boat file that same day and his statement to Officer Kethro earlier that night that he was thinking of buying the boat. He was investigating the background of the participants to inform him for the purchase. 2. The true purpose of the QPRIME search on 10 August 2021 was to request the PPSR check to ensure there were no encumbrances registered on the boat and the trailer. This was for the purpose of his purchasing the boat. (Count 2). He knew the boat was not abandoned and yet he put that in there as part of his request. The searches fit in neatly with the phone calls with Ms Cammell that 81 Transcript pages 28.20 and 38.44. 82 [1993] HCA 63; (1993) 178 CLR 193. 83 Transcript pages 28.17 and 38.42. -- 28 of 33 -- 29 day, the contract he signed including that she warranted there were no monies owing and her visit to the police station to sign the contract. 3. The true purpose of the searches on 11 August 2021 was to check that there were in fact no encumbrances and/or that the vessel had been transferred to him (count 3). [135] I also exclude the explanations consistent with innocence raised by the defence for the following reasons: Domestic Violence investigation (a) I do not consider the issue of domestic violence was seriously raised. Officer Moore never treated this as a domestic violence “DV” investigation. Officer Davis considered from what he was told there was insufficient evidence of DV to make that assessment.84 I also consider there was insufficient evidence. All that Moore had been told was that she was hiding the boat from her son so he did not get the money. There was not evidence of threats by the son or any act of domestic violence. I do not consider there was a duty to investigate this as domestic violence under section 100 of the Domestic and Family Violence Protection Act 2012 (Qld). This section requires a police officer to investigate a complaint, report or circumstance where he or she reasonably suspects that DV has been committed. (b) As to the term “reasonably suspects” in George v Rockett85 it was said: “When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.” (c) A suspicion must be more than a mere idle wondering as to whether it exists or not. It is a positive feeling of actual apprehension or mistrust86 and of course there have to be reasonable grounds for the suspicion.87 (d) To be reasonable it cannot be arbitrary, irrational or prejudiced.88 Some factual basis for the suspicion must be shown. It can be based on hearsay but the material must have probative value. Also in determining this question regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances.89 Section 8 of the Domestic and Family Violence Protection Act 2012 (Qld) does define “domestic violence” widely but there does need to be some evidence of it to raise a suspicion. (e) All Moore told the Appellant was what she had been told. In cross examination she accepted she told him about the “potential financial abuse”90 but that must be considered in the context of the evidence. She had accepted the possibility this could be financial abuse with hindsight bearing in mind training since 84 Transcript page 35.42. 85 [1990] HCA 26; (1990) 170 CLR 104 at page 112. 86 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at page 115. 87 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at pages 116-118. 88 R v Bossley [2012] QSC 292; [2015] 2 Qd R 102; (2012) 230 A Crim R 370 at [14]. 89 R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 at [53]. 90 Transcript page 15.20. -- 29 of 33 -- 30 2021.91 So the question about telling him about potential financial abuse was not that she said those actual words. Those words were a conclusion based on her earlier evidence. The words she told him were exactly what Ms Cammell had told her. This did not give rise in my view in the appellant’s mind to a suspicion of DV. In any event he never told anyone this and certainly not Officers Moore or Davis. (f) It is true that he searched the details of Ms Cammell and Mr Hepenstall but this is more likely because of his concern as to the true owner of the boat. (g) I exclude the hypothesis the searches were for the purposes of a DV investigation. Financial fraud investigation (h) Officer Moore did not consider any offence had occurred concerning a finance company.92 Officer Davis said there was no offence to be investigated unless there was a complaint.93 I agree with their evidence. It was unclear whether the finance attached to the Nissan and/or the boat. There was no complaint about this boat being stolen. Officer Moore did not consider the boat was stolen.94 (i) Again, I note the appellant never told anyone he was engaged in such an investigation. He certainly never told Officer Kethro he was concerned about the boat as being stolen or of a potential financial fraud. He just talked about buying it. (j) I also note that the documents he printed off on 9 August 2021 contained images which referred to the fact that the boat and trailer and Ms Cammell were not of interest (admission 35). (k) I exclude the hypothesis the searches were done to investigate a financial fraud/theft. (l) Indeed I consider that the appellant in a misleading way put into QPRIME that the boat was abandoned (twice) when it was not and the appellant knew that. Stopping repeat calls for service (m) Officer Moore never had a supervisor check to see a street check had been done properly.95 Officer Moore had 30 years’ experience as a police officer. Officer Davis said there was no oversight on street checks unless they were being used for an investigative purpose.96 They don’t get vetted.97 (n) The appellant never said he was going to treat this as a check on the street check when he spoke to Moore on 9 August 2021. In fact, the only thing he spoke about as to this matter on 9 August 2021 was to Officer Kethro when he said thinking of buying the boat. 91 Transcript page 14.35. 92 Transcript page 14.15 93 Transcript page 36.37. 94 Transcript page 19.30. 95 Transcript page 12.25. 96 Transcript page 30.32. 97 Transcript page 31.12. -- 30 of 33 -- 31 (o) The appellant lied to Officer Davis. If he was truly investigating DV or a finance fraud or checking on subordinates, why did he not say so as distinct from lying? (p) In any event Officer Davis did not consider this was a repeat street check.98 (q) I exclude this hypothesis. [136] When I consider all of the circumstances, I am satisfied that all hypotheses consistent with innocence – that is the access was for work purposes were excluded beyond reasonable doubt. I conclude beyond reasonable doubt that the only rational inference to be drawn here was the accessing on each occasion was for personal use namely for his purchase of the boat. [137] The final element of each of the computer hacking charges was whether the appellant obtained a “benefit” and/or intended to obtain one. [138] The term “benefit” is defined in s 408E as “benefit” includes a benefit obtained by or delivered to any person.99 [139] The term “benefit’ is further defined in s 1 of the criminal Code as: “benefit” includes property, advantage, service, entertainment, the use of or access to property or facilities, and anything of benefit to a person whether or not it has any inherent or tangible value, purpose or attribute.” [140] In R v Saba ,100 the Queensland Court of Appeal examined the meaning of the term benefit. It was held that the term is a wide one but should not be extended by a tortured process of analysis. [141] In Director of Public Prosecutions v Raines,101 it was held that the fundamental characteristic of a benefit is to put the person in a superior position. [142] In this case I conclude on this review that the appellant did obtain a benefit and/or intended to obtain a benefit on each of the three occasions as follows: (a) On 9 August 2021 he was able to obtain knowledge of the details of the ownership of the boat and the persons involved to ensure he was in fact dealing with the right person concerning the purchase and/or details for the purchase. This was clearly of benefit to him for the purposes of the purchase. It can also be inferred he obtained the hull number of the boat and VIN of the trailer for the purpose of the later checks. He stored the information is a separate folder. The confidential information were the QPRIME records relating to Ms Cammell, Mr Hepenstall and/or the registration and hull number details of the boat and/or trailer. (b) On 10 August 2021 he used the QPRIME system to conduct the REVS checks to ensure the boat was appropriately owned and not encumbered. This clearly 98 Transcript page 34.46. 99 This definition was amended in 2023. 100 [2013] QCA 275; [2014] 2 Qd R 408; (2013) 235 A Crim R 144 at [50]-[51]. 101 (1995) 79 A Crim R 448 at p 450. -- 31 of 33 -- 32 was of benefit to him. It was confidential information to the QPS computer system. This information would allow him to make an informed decision concerning the purchase. (c) On 11 August 2021 he was able to ensure the boat was unencumbered thus no breach of warranty and/or see that the boat was registered to him. Contrary to the defence submission I conclude it can readily be inferred he looked at the results. Otherwise, why do the search? Also, the contract could have been terminated by him if the results came back showing an encumbrance in light of the condition/warranty referred to in the receipt. It was of benefit to him and was confidential information. [143] Contrary to the appellant’s submissions, the fact is that all of the information was confidential on the QPS system (owned by another person) even if some of it could be obtained through payment of a fee through another website. [144] In the circumstances I am satisfied that the prosecution had proved each of the elements of each of the offences beyond reasonable doubt and the appellant was rightly convicted of the computer hacking charges. Fraud Charge [145] The elements of this charge were as follows: (a) The appellant dishonestly. (b) Gained. (c) A benefit for himself namely a Personal Property Security Register check. (d) He was an employee (this was not disputed). [146] This was a circumstantial case on the question of dishonesty. [147] “Dishonesty” under s 408C of the Criminal Code means that what the accused did was dishonest by the standards of ordinary honest people.102 [148] The following circumstances were relevant to this question: (a) The QPRIME system could not be used for personal use (I have discussed this above). (b) Access to the QPS system lead to a warning to the user not to use the computer for personal use. (c) The allegation that the boat was abandoned was at the least misleading. (d) All QPS staff had received reminders that the system could not be used for personal purposes. (e) The PPSR search on my findings was for personal purposes. 102 R v Dillon; ex parte Attorney-General [2015] QCA 155; [2016] 1 Qd R 56; (2015) 253 A Crim R 492 at [48]. -- 32 of 33 -- 33 (f) The defendant had completed the QPS online learning product on 7 January 2021.103 I infer he knew he could not access the QPS system for personal purposes. (g) On my findings he lied to Officer Davis as I have outlined above. [149] I conclude that the only rational inference is that the appellant acted dishonestly by obtaining the PPSR check results. [150] The next question is whether he gained a benefit. I have already referred to the definition of benefit above (s 1 of the Code). The fact is he was able to use police resources to access the PPSR checks and I infer that he looked at them. He thereby avoided paying $2.00. This was in my view a benefit gained. [151] In the circumstances I have concluded on my review of the evidence the Magistrate did not err in finding the appellant guilty of this charge. Conclusion [152] For the reasons given I make the following orders: 1. The appeal is dismissed. 2. The Magistrate’s decision is confirmed. 103 Exhibit 8 page 3. -- 33 of 33 --