Section 135ASA [see Appendix at page 357] contains a single offence for making an unauthorised decoder. This offence consists of two physical elements:
(1) the conduct of making an unauthorised decoder; and
(2) with the result that the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.
Neither element has a specified fault element, so through the application of s 5.6 of the Criminal Code Act 1995 (Cth) the fault element for the conduct element is intention and recklessness for the result.881 The offence does not need to be committed for a commercial purpose, so criminal liability will be attached to a person who creates a computer program that enables unauthorised access to an encoded broadcast and makes it available online.
[5.3.1] “makes an unauthorised decoder”
There may be some argument regarding the characterisation of this element of the offence. One view is that words such as “makes an unauthorised decoder” should be interpreted as two elements:
a conduct element, consisting of the physical act of assembling component parts, with the result that an unauthorised decoder has been made.
The better view is that the phrase should be read as a single physical act. The distinction is important when the fault element or elements of the offence are imported by s 5.6 of the Criminal Code Act 1995 (Cth). The fault element for a physical act consisting of conduct is intention882, and the fault element for a physical element consisting of a result is recklessness.883
If the first interpretation is used, this would result in a lowering of the culpability for the offence, which is likely to disadvantage a person charged under the offence. The High Court has considered comparable legislation on numerous occasions884 without a settled view emerging which is broadly
880 Criminal Code Act 1995 (Cth) sch 1 s 13.3(3)
881 Criminal Code Act 1995 (Cth) sch 1 s 5.6
882 Criminal Code Act 1995 (Cth) sch 1 s 5.6(1)
883 Criminal Code Act 1995 (Cth) sch 1 s 5.6(2)
884 Vallance v R (1961) 108 CLR 56; Mamote-Kulang v R (1964) 111 CLR 62; Timbu Kolian v R (1968) 119 CLR 47;
Kaporonovski v R (1973) 133 CLR 209; Falconer (1990) 171 CLR 30
applicable.885 In Falconer,886 the High Court concluded that the phrase “discharge a firearm” should be viewed as a single element since “a consequence which the bodily movement is apt to effect and is inevitable and which occurs contemporaneously with the bodily movement is more appropriately regarded as a circumstance that identifies the character of the “act” which is done by making the bodily movement.”887
The unauthorised decoder itself can consist of any device, including a computer program. A computer program would consist of an algorithm that can decode the broadcast signal. Such algorithms can be converted into large prime numbers, and these have been called the “illegal primes”.888
[5.3.2] “the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster”
This element of the offence in occurs in a number of the offences in Division 3. It is clear that this is a result element. However the ultimate result of the gaining access to an encoded broadcast is not contemplated to have actually occurred. As discussed above at paragraph [4.2.3], it is not unique to include inchoate results as elements to offences in the Copyright Act 1968 (Cth). The inchoate result element in the ERM information offences is capable of being interpreted in such a way as to make some sort of sensible reading of the element. This element of s 132ASA does not allow the same interpretation, since the result refers to an actual event rather than a change in the quality of an event.
It is hypothetical that this element was originally intended to be the fault element to the various offences in which it occurs:
“(1) A person commits an offence if:
(a) the person makes an unauthorised decoder with the intention that;
(b) the unauthorised decoder will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.”
Changing this into a physical element was probably intended to:
885 Odgers, S., Principles of Federal Criminal Law (2010, 2nd ed) 18-24
886 Falconer (1990) 171 CLR 30
887 Falconer (1990) 171 CLR 30, 38
888 http://en.wikipedia.org/wiki/Illegal_prime (Accessed 27 July 2012)
(1) remove the need for a prosecuting authority to prove which use of the device the defendant intended;
(2) replace this with the easier requirement to prove the defendant had intended to engage in the physical conduct;
(3) enable the prosecution to prove the physical result element by demonstrating that the device is capable of decrypting an encoded broadcast; and
(4) lower the culpability of this element of an offence from intention to recklessness.
This would have made the proving the offence an easier task for prosecutors. If this was the intention the offence should have been drafted like so:
“(1) A person commits an offence if:
(a) the person makes an unauthorised decoder; and
(b) the unauthorised decoder will enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster”
The inclusion of the words “be used to” between “will” and “enable” in sub-s 132ASA(1)(b) creates a problem for prosecutors. To demonstrate the problem with the greatest clarity, it is necessary to apply the offence to a set of hypothetical facts.
A is an organised criminal. Through his activities he has accumulated enough money to invest in an enterprise producing decoders which enable people to gain access to encoded broadcasts without paying the broadcaster. A and his employee B make 500 decoders with the intention of selling them through his underworld contacts. Unknown to A, his “employee”, is actually an undercover policeman. B informs his police supervisor when the decoders are ready for shipment. The police raid A’s premises, arrest A under s 135ASA and seize the decoders as evidence.
If A is charged under s 132ASA, it will be a relatively straightforward matter to prove that A made an unauthorised decoder intentionally. If the decoders work as they are designed, it could also be proved that the unauthorised decoders enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. However, it will be impossible to prove that the decoders will be used to that end, because they will never be used for anything other than evidence if they remain in a police evidence room.
This is the legal equivalent of the observer effect in physics. The interception of the decoders nullifies the offence. This seems to have been overlooked in the preceding case to Nahlous v R,889 where the defendant pleaded guilty to a number of related offences.
If there is evidence of the actual use of decoder, the element can be proved because the offence refers to a future use without expressly specifying when that period of time ends. The time period for the offence begins immediately after the conduct element of the offence is complete and does not expire.890 However it would have to be proved that the making of the decoder and its use formed a single transaction.891
Leading proof that the decoder has been used would enable evidence to be led that at the moment the conduct element of the offence was committed, the decoder will be used. But if, as in the example, the decoder is seized before it has a chance to be used, prosecutors will have to charge offenders with an attempt at the offences to circumvent the problem. This means they will be required to prove that the defendant intended892 that the decoder was to be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. If the hypothetical origins of this offence are accepted, the prosecution is in the same position that existed before the change.
In respect to the authorisation of the broadcaster, once again it is unclear where the evidential burden lies, as discussed above at paragraph [4.2.2].