Law Information - Commonwealth Offences - Federal
Unauthorised Access, Modification Or Impairment With Intent To Commit A Serious Offence
Date: 01/09/2009
The Law -
Sections 477.1 of the Commonwealth Criminal Code states:
(1) A person is guilty an offence if:
(a) the person causes:
(i) any unauthorised access to data held in a computer; or
(ii) any unauthorised modification of data held in a computer; or
(iii) any unauthorised impairment of electronic communication to or from a computer; and
(b) the unauthorised access, modification or impairment is caused by means of a carriage service; and
(c) the person knows the access, modification or impairment is unauthorised; and
(d) the person intends to commit, or facilitate the commission of, a serious offence against a law of the Commonwealth, a State or a Territory (whether by that person or another person) by the access, modification or impairment.
(2) Absolute liability applies to paragraph (1)(b)
It is not an offence to attempt to commit an offence against this section.
Maximum Penalty - Unauthorised Access, Modification Or Impairment With Intent To Commit A Serious Offence
The Maximum penalty for the offence of Unauthorised Access, Modification or Impairment with Intent to Commit a Serious Offence is life imprisonment or a period of 5 or more years.
A person who is guilty of an offence against this section is punishable, on conviction, by penalty not exceeding the penalty applicable the penalty to the serious offence.
A person may be found guilty of an offence against this section even if committing the serious offence is impossible.
What the prosecution must prove - Unauthorised Access, Modification Or Impairment With Intent To Commit A Serious Offence
In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.
1. The accused caused:
(i) any unauthorised access to data held in a computer; or
(ii) any unauthorised modification of data held in a computer; or
(iii) any unauthorised impairment of electronic communication to or from a computer; and
2. The accused knows the access, modification or impairment is unauthorised; and
3. The accused intends to commit or facilitate the commission of, a serious offence against a law of the Commonwealth (whether by that person or another person) by the access, modification or impairment.
It is not necessary for the prosecution to prove that the accused knew that the offence was
(a) an offence against the Commonwealth; or
(b) a serious offence.
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.
Possible Defences - Unauthorised Access, Modification Or Impairment With Intent To Commit A Serious Offence
Possible defences to this offence include but are not limited to
1. The accused did not cause
(i) any unauthorised access to data held in a computer; or
(ii) any unauthorised modification of data held in a computer; or
(iii) any unauthorised impairment of electronic communication to or from a computer; and
(iv) the unauthorised access, modification or impairment by means of a carriage service; and
2. The accused did not know the access, modification or impairment is unauthorised; and
3. The accused did not intend to commit, or facilitate the commission of, a serious offence against a law of the Commonwealth, a State or a Territory (whether by that person or another person) by the access, modification or impairment.
The Court process - Unauthorised Access, Modification Or Impairment With Intent To Commit A Serious Offence
This matter is Commonwealth Offence which means it is dealt with in the Supreme Court.
Criminal Law Article written by Bill Potts (a Queensland criminal defence lawyer who is experienced in the Commonwealth Charge of Unauthorised access, modification or impairment with intent to commit a serious offence matters)
