R v Ritson; R v Stacey

[2010] NSWDC 160

CITATION:	R v Ritson; R v Stacey [2010] NSWDC 160 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10/5/2010, 11/5/2010, 15/7/2010, 16/7/2010, 19/7/2010, 21/7/2010, 28/7/2010, 30/7/2010
JUDGMENT DATE:	30 July 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Blackmore SC DCJ
DECISION:	In each case no prima facie case found. Appeal upheld. Conviction quashed. Orders of magistrate revoked.
CATCHWORDS:	CRIMINAL LAW - Conviction Appeal - Public official unlawfully disclose information - Meaning of "contained in a publicly available publication" - Meaning of "disclose" - Meaning of "personal information"
LEGISLATION CITED:	Births, Deaths and Marriages Registration Act 1995 Local Court Rules 2009 Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed) Privacy and Personal Information Protection Act 1998
CASES CITED:	ASIC v Rich [2001] 51 NSWLR 643 Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 NW v NSW Fire Brigades [2005] NSW ADT 73 PC v University of New South Wales (2007) NSW ADT 86 R v Davis (1995) 57 FCR 512 R v Elomar & Ors [No.3] [2008] NSWSC 1442 Seven Network v News Limited (2005) FCA 1934 University of New South Wales v PC (GD) [2008] NSW ADTAP 26 WL v Randwick City Council (GD) [2007] NSW ADTAP 58
PARTIES:	The Crown Brendan Paul Ritson Tyrone David Stacey
FILE NUMBER(S):	DC 2009/5372; DC 2009/7497
COUNSEL:	Ms F Sullivan Mr R Sweet Mr J Davidson
SOLICITORS:	Director of Public Prosecutions Mitchell Lawyers Herring & Associates - Lawyers

1. The appellants are charged with an offence under section 62 of the Privacy and Personal Information Protection Act 1998. The heading on the section reads “Corrupt disclosure and use of personal information by public sector officials”. On its face that description appears a somewhat misleading description of the offence with which the appellants are charged. The heading in the section can be used to aid in the section’s interpretation if such is necessary to determine the true meaning of the words used: Interpretation Act 1987 – section 34. But in this case there appears to be no confusion as to the meaning or the application of the section such as to necessitate reference to the heading to assist in its interpretation. Perhaps, if there is a discretion in the prosecuting authority as to whom to prosecute, reference to the heading might enliven and inform that discretion, but once the charge is laid the elements of the offence are the matters that must be proved.

2. In this case the offence for which the appellants stand charged is an offence under section 62(1) of the Act. The elements of the offence are that the appellants:

1. Intentionally disclosed information to which they had access in the exercise of their official functions.
2. The information was personal information.
3. Such disclosure was made otherwise than in connection with the lawful exercise of their official functions.

3. The maximum penalty for the commission of this offence is 100 penalty units or imprisonment for 2 years or both.

4. Taking the Crown case at its highest it is alleged that the appellants, after accessing a police computer containing “personal information”, revealed that personal information to a Mr Jacobson. The information revealed was that the gender of Mr Jacobson’s then girlfriend Brigitte Fell was male. This was done by printing out a document from the iCOPS police computer system and showing that form to Jacobson. That document included a reference to the true gender of Ms Fell.

5. Whether the revelation of the gender of a person is personal information or was intended to be personal information under the Act was not a matter of controversy in the appeal. The magistrate found that it was personal information under the Act. It would appear that as the definition of “personal information” in section 4(2) of the Act includes the genetic characteristics of a person, the Act did contemplate that gender would form part of a person’s personal information and consequently the magistrate’s finding was correct.

6. The breadth of the definition of “personal information” contained in the Act would cover almost any characteristic of a human including hair colour, eye colour, height, ethnicity, baldness, all shades of skin colour and a myriad of other factors. It appears that any one of those characteristics might innocently but intentionally be revealed by a public official, who had learnt of that information or had access to it through his or her role as a public official, otherwise than in the lawful exercise of their public functions, without any corruption on their part being involved or alleged. In fact it is possible to speculate that this offence is being committed by government officials on a daily basis without any complaint being made. However in my view when an offence as serious as this one is prosecuted, and it is one with such a potentially broad reach, it is incumbent on a court to ensure that the provisions of the Act promulgating the offence are complied with strictly before a defendant is convicted.

7. In this case the appellants raise at a prima facie level an issue that was also raised in the Local Court. The appellants both submit that, accepting the Crown case at its highest, the information disclosed by them was not personal information so defined. Two additional issues were also raised. Firstly that the personal information revealed from the data contained in the police computer records was not “disclosed” as Mr Jacobson had already been told the gender of Ms Fell prior to any such disclosure being made. Secondly it is submitted that the Court could not be satisfied, taking the Crown case at its highest, that the revelation of that information was not “otherwise than in connection with the lawful exercise of their functions”.

8. I will address those submissions in the order identified.

9. As already noted the definition of “personal information” appears to include the gender of a person and consequently, absent some other provision of the Act excluding that interpretation, the information disclosed by the appellants was a revelation of personal information. In this regard there a long list of exceptions in section 4 of the Act that declare some information not to have the character of personal information.

10. What the appellants each rely on in this case is section 4(3) of the Act. That sub-paragraph relied on relevantly reads,

“Personal information does not include any of the following:
(b) information about an individual that is contained in a publicly available publication.”

11. It is not a matter of dispute in the proceedings that Ms Fell had, prior to the alleged revelation particularised in the charge, revealed in open court, perhaps on more than one occasion but at least on one occasion, the fact that her true gender was male. Her birth certificate also records her as a male. The submission is made that in both instances the relevant information, that is the gender of Ms Fell, is contained in a publicly available publication.

12. The first matter to determine is what is the meaning of the phrase, “contained in a publicly available publication.” If information is thus contained it is not “personal information” and the offence cannot be made out.

13. In my view it is important to read the whole of that phrase together. What can be observed is that the information must be “contained” within the publication. That suggests that the information must form part of some larger publicly available publication. “Publication” is not defined in the Act but it would appear to include at least documentary or electronic publication. In that context it might be an electronic record of a publication such as a television program or radio program. On the other hand it is difficult to see how an oral revelation of the information by Ms Fell to another person, of itself, could be said to be “contained” in a publicly available publication. Even if Ms Fell herself had no objection to telling people of her gender, provided she did that orally and in a form that was not recorded for later publication or re-publication that would not appear, utilizing this exception to the definition, to deny the information the character of being personal information.

14. As Ms Fell revealed her gender during open court proceedings it appears to leave no room for doubt that the court record, in whatever form it is now held, whether electronic or in the form of a transcript, “contains” that personal information.

15. The next question is whether that record can or should be regarded as a publicly available publication. This is a matter of significant controversy in the proceedings and in my view not an easy one to resolve.

16. Some matters that might further aid in the interpretation of that phrase can be referred to. The Act is described in its long title in part as follows, “An Act to provide for the protection of personal information and for the protection of the privacy of individuals generally…”. The Act obviously places emphasis on the protection of privacy of individuals however perhaps little more can be gained from that description. Another secondary sources is the second reading speech given by the then Attorney General in Parliament. That speech identifies the objects of the Act. Mr Shaw said (Hansard, Legislative Council, 17 September 1998),

“the objects of the bill are: to promote the protection of the privacy of individuals; to specify information protection principles that relate to the collection, use and disclosure of personal information held by public sector agencies; to require public sector agencies to comply with these principles; to provide for the making of privacy codes of practice for the purpose of protecting the privacy of individuals; to provide for the making of complaints about privacy-related matters, and for review of conduct that involves the contravention of the information protection principles or privacy codes of practices; and to establish an office of Privacy Commissioner and to confer on the Privacy Commissioner functions relating to privacy and the protection of person information.”

17. In relation to prospective offences the second reading speech noted,

“The legislation will create a specific criminal offence in relation to the supply of personal information by a public official in return for financial or other benefit. It will also be an offence to solicit the corrupt supply of information by a public official.”

18. That is the only reference to offences in the second reading speech. Neither of the offences referred to by the Attorney General in that speech relate to the allegations made here. Nor is there any reference in the second reading speech to this particular exception to the definition of personal information either.

19. Another relevant consideration is that the interpretation of the phrase must be such that it can be applied consistently. There is no point in attempting to interpret the phrase in some idiosyncratic manner that might suit the circumstances of an individual case but not be capable of wider usage.

20. There have been some interpretations made of the phrase in the Administrative Decisions Tribunal (ADT). In NW v NSW Fire Brigades [2005] NSWADT 73 it was said that “it will not be a ‘publicly available publication’ unless ‘its contents are freely available to any member of the public, without restriction (emphasis added - see par [26]). The emphasised word any may not mean anything more than a member of the public. The addition of the words freely available and without restriction appear to be a construction of the meaning of the defined words.

21. Later in WL v Randwick City Council (GD) [2007] NSWADTAP 58 the Appeal Panel of the ADT referred to this same exception. In particular they referred to the phrase freely available which had been used in the earlier decision of NW. In WL the panel said that the reference to freely available connotes unrestricted access. Consequently the word freely would, according to the panel, have the same meaning as without restriction and thus it appears to add nothing to the interpretation of the phrase.

22. These cases suggest that a publicly available publication is a publication which is available to the public without restriction. However in WL the panel also noted that they were “inclined to the view that what was in the mind of Parliament was material in a published form consistent with general, unfettered availability such as a brochure, pamphlet or report.” I have read the second reading speech and I do not discern any comment in that speech that provides any guidance of the interpretation of this phrase. As previously noted the exceptions referred to in section 4(3) of the Act are not referred to in that speech.

23. In another decision of the ADT the Judicial Member dealt with a submission that personal information that was contained in the Dominion Law Reports was not information contained in a publicly available publication. The tribunal found that there was no evidence before the tribunal that members of the public have unrestricted access to this volume of these law reports. That was despite the photocopy of the law report that was tendered in court bearing a stamp indicating it had been obtained from the University of Sydney Law Library (see PC v University of New South Wales (2007) NSWADT 86).

24. The decision of PC was subject to appeal and was subsequently reversed. The appeal member said at paragraph [42], “In the present case the document was on first impression a document of a kind that was well known, at least to members of the legal profession, to be publicly available subject to the payment of a subscription fee for the regular service, and today on a per case without fee basis if downloaded from the internet.” It was then concluded that the document was a publicly available publication. (see University of New South Wales v PC (GD) [2008] NSWADTAP 26 at [42-43]) I note in this appeal case the Court appears to accept that even though there may be some restrictions on public access to a publication, that is, you would need to know of the existence of these law reports from Canada and know how to obtain them, perhaps for a fee, that the information was still contained in a publicly available publication.

25. The difficulty in interpreting this phrase is amply demonstrated in this series of cases. It might be observed that there is a lack of consistency in interpreting the phrase. Of itself that might not be a matter of comment however I am of the view that some degree of certainty is required when I am dealing with a serious statutory criminal offence. I do not find these cases of any particular assistance in interpreting the phrase and in my view I am not bound by them.

26. I note that the magistrate did not refer to the decisions in the ADT. It may be that he was not referred to them. What His Honour found on this issue was that,

“...the fleeting oral statements per se made by Brigitte Fell and her solicitor in open court on 30 August 2004 to the effect that she was or had been male are not within the exclusion in section 4(3)(b). The transcript and audio recordings of such courtroom statements on 30 August 2004 were available as at the time of the disclosure, as was documentary evidence admitted during the sentencing of Ms Fell. But was such material publicly available. It was available to the parties in those proceedings, that is to the prosecutor and Ms Fell. Clause 62(1) of the Local Courts (Criminal and Applications Procedure) Rule 2003. It was also available to other people who could satisfy a magistrate or registrar that they had a “proper interest” in accessing the material. Such class of people would be a very small proportion of the public. The great majority of the public could not satisfy the “proper interest” test. I conclude that cl 62(2) did not make such audio and written material available publicly”. (Transcript 8/10/08 page 4)

27. Thus his Honour concluded that the transcript and audio of the prior court proceedings contained the relevant personal information but also concluded that there was not unrestricted public access to that material and thus the audio and or transcript was not a publicly available publication.

28. Is there any justification in adding into section 4(3)(b) the word unrestricted and even if it is justified what does it mean? Does that mean that any restriction whatsoever takes away the character of the item being a publicly available publication? If not, then what restrictions are allowed (see for example the appeal decision of PC above).

29. This debate cannot be viewed in isolation. The legislation is designed to provide privacy to individuals. However if an individual, without compulsion, provides personal information in a public forum and that information is recorded should that information be regarded as private thereafter?

30. A further related issue is how should the word publicly be interpreted in this phrase. Is that a reference to the public at large (which is a term not used in the legislation) or is it a reference to any member of the public who might seek access to the publication. In other words is it sufficient if one member of the public seeks and is granted access to the information in the publication to give it the character of a publicly available publication. I will come back to consider this issue.

31. Of course it can be observed that nothing is available to the public at large. Every piece of information, no matter how it is kept or how it is contained, has restrictions applying with respect to access to it. Some of those restrictions are practical and others are provided by legislation. For example even information published in a newspaper is restricted to those who live in an area of distribution of the paper and who have the money to pay for it. If it is available on the internet access is restricted to those who have the means to connect to the internet. Logically it can and perhaps should be held that information published in a newspaper is information that is contained in a publicly available publication. But even in that case, where there has been a publication in a newspaper years before the relevant revelation, should that publication be regarded as something contained in a publicly available publication.

32. Information that is contained in a transcript of a court proceedings can only be obtained on application to the court: see Local Court Rule 62 as it then was. That is partly because there is a fee for reproduction of the transcript. This clause of the Local Court Rules referred to by the magistrate indicates that there is a “proper interest” test applying to access to the transcript. I note that these Local Court Rules have now been repealed and replaced with the Local Court Rules 2009. Rule 8.10 of those rules deals with Copies of Court Records. The rule does not refer to a proper interest test applying. The rule instead allows a magistrate to grant leave for access to the proceedings if it is appropriate to do so in the circumstances. Despite the repeal of the rule I will continue, for more abundant caution, to further consider the matter on the basis that the earlier rule applied.

33. I am not aware of any case law that relates to this particular Rule, other than that to which I about to refer (see John Fairfax referred to below), a decision which held that the Rule was not relevant to the circumstances of that case.

34. In my view the foundation for determining the issue of whether personal information should be regarded as publicly available is whether the personal information contained in the transcript was evidence given in open court. If it was then there was no restriction on anyone in court hearing that information and publishing it, and consequently on payment of the fee it is difficult to see why someone should generally be prevented from obtaining a copy of that evidence. Undoubtedly the fee is a restriction which would prevent some people obtaining the transcript but in my view that sort of practical limitation is not a relevant consideration. That is consistent with the finding of the ADT Appeal’s panel in UNSW v PC referred to above.

35. Some guidance on the issue of what information ought to be available to the public when that information is provided in open court was provided in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512. In that case a magistrate had refused an application made by a newspaper for access to the court papers in a case in which one party sought an apprehended violence order against another. The court papers apparently included a detailed allegation of some violence allegedly perpetrated by a sitting magistrate. In that case the Local Court rule referred to above did not contain an express provision that allowed non parties access to the court papers. In fact there was not even a power to grant parties to the proceedings access in apprehended violence proceedings. The newspaper sought a ruling that there was an implied power of the Local Court to grant such access. The Court of Appeal held that, as the Local Court is a statutory court, unless there is a specific statutory power provided to the court, additional powers would only be implied to the Court to the extent that they were necessary for the proper exercise of that courts power. In this case it held that the Local Court did not have power to grant access to the documents filed in the registry which had not been relied on by the Court in making a decision.

36. However the Court of Appeal went on to consider the extent to which access generally should be granted to the public to the records of court proceedings. Chief Justice Spigelman on behalf of the court said,

[66] The claimants sought to compare the present proceedings with a situation in which material has been taken as read, but not actually set out in open court. In such a case there is a strong argument for concluding that any express or implied power to grant access is relevantly invoked. (See, eg Cunningham v Scotsman Publications Ltd [1987] SLT 698 at 705-706.) It is entirely appropriate for the court to ensure that the public is fully informed of the actual proceedings in court even though, perhaps by reason of efficient procedure or the application of particular rules of practice, the matter is not read out in open court, but is either taken as read or otherwise deployed in a manner which influences the actions of the judicial officer.

[67] So, in Ex parte Davies Bros Ltd, charges which were not formally read were nevertheless found to have been used in the court in a manner calling for the charges to be publicly available. Similarly, court orders are public documents open to public inspection. (See Titelius.)

[68] It is unnecessary to determine a single test applicable in all situations to identify when a document has been put before the court in such a manner that it ought be made public. A useful test was proposed by Lord Clyde in Cunningham v Scotsman Publications Ltd (at 706):
The test in my view is not what is actually read out — although all that is read out is published — but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is taken as published.

[69] The underlying principle is as stated by Byrne J in Smith v Harris [1996] 2 VR 335 at 350:
… [T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.

[70] The court gave the claimants access to the fact of the complaint, the fact of the consent and the terms of the order. The purposes to be served by the principle of open justice were fully and completely served by this disclosure. No matter relevant to an understanding of what the court actually did was withheld. To use Byrne J's formulation in Smith v Harris, everything “necessary for the public to scrutinise the process itself” was made available. Nothing was withheld, to use Lord Clyde's formulation in Cunningham v Scotsman Publications Ltd, that involved ‘… the presentation of the case intended to be published’.”

37. Based on this judgment there appears to be a strong argument that open and unfettered access to court proceedings including transcripts should generally be granted. It does not suggest, as the magistrate found, that only a limited number of people could meet the proper interest test set by the Local Court rule.

38. In R v Elomar & Ors [No.3][2008] NSWSC 1442 Justice Whealy was considering an application by various members of the press for access to photographic exhibits in a trial that his Honour was then conducting. The allegation in the trial was that the accused were involved in a conspiracy to undertake a terrorist act. It was submitted in the trial that if the media was given access to the photographic exhibits and they were published that the publication of the evidence might prejudice the accused’ trial.

39. Essentially the larger issue considered was the principle of open justice and how that principle could be accommodated in the circumstances of that case. His Honour allowed access to the exhibits and in doing so considered a number of authorities which in my view are also relevant here.

40. His Honour, whilst dealing with the issue, considered a number of other cases in which the principle of open justice was discussed. Whealy J noted at [15] that,

“The principle of open justice does not create a free standing right to access or its components (see John Fairfax v Ryde Local Court per Spigelman CJ at par 29.) But it recognises that desirability of permitting access in appropriate cases where the access will support the preparation of a report of what has happened in the courtroom during its public sittings.”

41. Justice Whealy quoted what had earlier been said in the Full Federal Court in R v Davis (1995) 57 FCR 512 at 514. The Full Court said,

“Whatever the media’s motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government. Except in extraordinary circumstances the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time or even the inclination to attend courts in person, as a practical sense this principle demands that the media be free to report what goes on in them.”

42. This Full Court judgment was referred to with approval by Justice Austin in ASIC v Rich [2001] 51 NSWLR 643 at [22].

43. Justice Whealy also quoted with approval from a judgment of Justice Sackville in Seven Network v News Limited (2005) FCA 1934. Justice Whealy said, “His Honour went on to hold that an appropriate “touchstone” for determining the question of access by non-parties was whether the documents or other material had been admitted into evidence. His Honour thought that, in general, the application of this principle would serve the interests of open justice.”

44. What these cases make clear, in my view, is that except in exceptional cases open justice means that the press should be able to freely report what happens in court. It is axiomatic in my view that what the press can report is in effect the same as what is available to the public. That is what the principle of open justice is founded on. The cases do not suggest that the press have unlimited power to report what occurs in open court but that the limits on such publication would be rarely applied. Of course a court that is approached by an individual non-party seeking access to court proceedings might, in considering whether such access should be granted, seek to understand the reason for wanting access and if it is perceived that such reason involves some nefarious or otherwise illegitimate purpose deny such access. But that in my view is not the same as determining whether the material is publicly available. The fact that one individual member of the public might be denied access to the court proceedings does not mean that the information in court proceedings is not generally available.

45. The Crown supports the decision of the magistrate. It submits that if a court must grant leave before information from court proceeding is made available then it cannot be said to be information that is publicly available. I do not accept that this narrow construction is valid. If in reality no valid objection could be taken to prevent access then the application for leave is in effect no more than an administrative step in the process of obtaining the information.

46. The question in this particular case is whether personal information contained in the recording of a court proceedings or its transcript is “contained in a publicly available publication.” In my view a test that can be applied to determine this issue in every such case is whether a member of the press could seek and reasonably expect to receive access to the information. That would be determined primarily by considering whether the evidence had been given in open court. The Local Court Rule referred to by the magistrate as a basis for finding that Ms Fell’s personal information was not contained in a publicly available publication would, with respect, applying the principles taken from the cases referred to above, not have prevented a member of the press from gaining access to that material. A manner of testing this is by considering whether, had the press sought access to the earlier transcript of the court proceedings involving Ms Fell, during the course of these proceedings, would access have been granted. The fact that she revealed personal information in that case “fleetingly” would not have been a basis for refusing access. In my view there would have been no valid reason to refuse access in the circumstances.

47. Accordingly the fact that she has revealed her real gender in those court proceedings and that such information is contained in a publicly available publication means that when the appellants disclosed that information to Mr Jacobson it did not amount to a disclosure of “personal information” as those words are defined in the Act.

48. In my view that finding obviates the need to make any findings about the other submissions made by the appellants. However extensive submissions were made to me with respect to these matters and therefore I should briefly address the issues. In short I do not accept that any of the other submissions made would have entitled the appellants to an acquittal of the charge at a prima facie level.

49. Let me firstly deal with the proposition that Ms Fell’s gender was correctly recorded on the Register of Births and consequently it is contained in a publicly available publication. I accept that there is evidence that her true gender is recorded on the register and is therefore contained in a publication. However I do not accept that such a publication is publicly available in this instance. Applying the test referred to above and asking the question whether a journalist could apply and reasonably expect to have access to that information leads to the inevitable answer that they could not. There are very strict conditions that apply to access to information contained on the register of births. The reason for such restrictions is to prevent identity theft. In general it is only the person whose information is recorded or persons who are acting on behalf of that person who can access information on the register. Unlike court proceedings which are open to the public, the register of births is not open. Nor is there any principle such as the principle of open justice that applies to this information. To the contrary the legislation specifically demands that the Registrar, as far as practicable, protect the privacy of the entries appearing in the register. See Generally section 46 and 47 of the Births Deaths and Marriages Registration Act 1995. Consequently the private information on the Register of Births recording Ms Fell’s gender is not private information contained in a publicly available publication.

50. Another matter raised by the appellants is whether the Crown has established that a “disclosure” was made by the appellants when they showed Jacobson what had been printed from the iCOPs computer system. What is submitted here is that the man Jacobson was already aware of the gender of Ms Fell prior to him being shown any information printed from iCOPs. It is submitted that the “disclosure” from the police record was not in fact a disclosure at all. It amounted to no more than showing him something that he already knew.

51. In this regard the appellants strongly rely on what was said in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-615. In that case Latham CJ said,

“In my opinion, it is not possible, according to the ordinary use of language, to “disclose” to a person a fact of which he is, to the knowledge of the person making the statement as to the fact, already aware. There is a difference between “disclosing a fact” and stating a fact. Disclosure consists in the statement of a fact by way of disclosure so as to reveal or make apparent that which (so far as the “discloser” knows) was previously unknown to the person whom the statement was made.”

52. It is not necessary to set out the evidence relied on by the appellants in detail. It was accepted both in these proceedings and before the magistrate that the appellant Ritson shouted out in the confines of the police charge room “you’re rooting a bloke”. The magistrate accepted that this statement made by Ritson was heard by Constable Stacey. Mr Jacobson did not use that phrase in evidence but indicated that he was told that his girlfriend was a man. He said that the police were joking with him about that topic but he was disgusted and disturbed by what they had said.

53. The magistrate found that the information Ritson shouted out was information he knew from some other source rather than on the basis of anything he had learned from information then held by the NSW Police Force. His Honour then found that such a disclosure did not amount to an offence. That is, his Honour accepted that the information that Ritson shouted out was already known by him otherwise than from information he had had access to in the exercise of his official functions.

54. There was other evidence in the case and in particular evidence from Ms Fell that it was common knowledge by people in Oxford Street and by police officers that she was in fact a male. She gave descriptive evidence of having been approached by a police officer, who she had never met before, who asked her about her sex change. She said it was common knowledge in the police station that she was a bloke with a sex change: see transcript page 70 5/2/08 Line 10-20. There was clearly evidence to support his Honour’s conclusion that Ritson learnt of this information prior to accessing the iCOPs computer.

55. It is submitted, based on the evidence in the case and this finding, that the Crown simply cannot make out the element that the private information, that is the gender of Ms Fell, was disclosed when Mr Jacobson was shown a print out from the iCOPs computer system by the appellants. It could not be disclosed to Jacobson, so it is submitted, because he was already aware of the gender of his girlfriend having been told by Constable Ritson.

56. The Crown responded by making two submissions. Firstly it was submitted that what was shouted out by Ritson could not necessarily be said to be a reference to Ms Fell. It did not identify her by name. I do not accept this submission. It was clear from the evidence that all of the discourse that was taking place with Jacobson on the topic of “rooting a male” related to Ms Fell. The statement makes no sense without that prior understanding.

57. Alternatively the Crown argues that the word disclose used in the legislation must be read in conjunction with an understanding of the purposes of the legislation. Those purposes are designed to prevent public officials from disclosing publicly held information which had been collected by a public sector agency. Even if the man Jacobson had been told that his girlfriend was a male by Ritson (removing the colloquial references) it was the confirmation of that fact provided to him by showing him the information from the computer that was the disclosure of the personal information. He was not aware and could not have been aware, prior to that disclosure, that a public sector agency held that personal information about his girlfriend on its records.

58. The interpretation of the word “disclose” provided in Foster quoted above is one provided in very different circumstances to this case. But even accepting the applicability of Latham CJ’s judgment to the circumstances of this case, I do not necessarily agree that the interpretation provided is inconsistent with the Crown case. What that quote emphasises is that you cannot disclose a fact of which the person, to the knowledge of the discloser, is aware. The Crown case is that, whatever Jacobson had been told by Ritson and or Stacey prior to showing him the iCOPs document, he did not appear to be accepting it as a fact. Telling him is one thing but having him accept that proposition as a fact is another. The Crown case is at its highest, as I understand it, is that the appellants’ showed the iCOPs form to Jacobson to confirm and settle the issue that in fact he was sleeping with a male. On the Crown case there was little other point in showing him the document at all. In my view the showing of the iCOPs form was a disclosure of the information on the form and that included the gender of Ms Fell.

59. Finally it was submitted that the Crown has not established that the appellants were acting otherwise than in connection with the lawful exercise of their official functions in showing Jacobson the form. I reject that submission. There is no evidence in the case that would allow for a finding that the showing of the form to Jacobson had anything to do with their lawful functions. It may be, although it is unnecessary to find, that access to the computer to obtain the information about Ms Fell was within their lawful functions, however I do not accept that showing a printout of that information to Jacobson fell within those functions. On the Crown case the information was shown solely for the purpose of humiliating Jacobson and to do so by establishing as a fact that he was sleeping with a male. I do not accept a submission to the effect that it could be within the appellants’ official functions to humiliate a suspect when in this case the evidence is that such humiliation was for no other purpose than some form of gratification of the appellants. I would reject this suggested basis for finding no prima facie case.

60. Coming then back to my earlier conclusion that the information revealed by the appellants to Mr Jacobson was not personal information as defined in the Act,3 I note that a element of the offence is that personal information so defined was disclosed. My conclusion that no such information was disclosed leads to the obvious finding that there is no prima facie case established here and consequently each of the appellants is entitled to be acquitted of this charge.

61. In each case the appeal is upheld. Conviction quashed and orders of the magistrate revoked.

02/08/2010 - Part of quote - Paragraph(s) 28, 29