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Possessing Data With Intent to Commit a Serious Computer Offence

Possessing data with intent to commit a serious computer offence is a crime under section 308F of the Crimes Act 1900, which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were in possession or control of data, and
  2. You possessed the data intending to commit or facilitate a serious computer offence, or you possessed the data intending to facilitate a serious computer offence.

‘Possession or control of data’ includes:

  1. Possessing a computer or data storage device which holds or contains data or any document in which data is recorded, and
  2. Controlling data held in a computer that is possessed by another person regardless of whether the computer is in NSW or elsewhere.

‘Data held in a computer’ includes:

  1. Data entered or copied into a computer
  2. Data held in any removable storage which was in a computer for a time, and
  3. Data held in any data storage device on a computer network of which a computer forms a part.

A ‘data storage device’ is any thing, including a disk or file server, which contains or is designed to contain data for use by a computer.

A ‘serious computer offence’ is an offence under:

  1. Section 308C of the Crimes Act, which is unauthorised access, modification or impairment with intent to commit serious indictable offence
  2. Section 308D of the Crimes Act, which is unauthorised modification of data with intent to cause impairment, or
  3. Section 308E of the Crimes Act, which is unauthorised impairment of electronic communication.

It also includes equivalent conduct committed outside NSW, provided the conduct amounts to an offence in that jurisdiction.

You may be found guilty even if committing the serious computer offence is impossible.

Duress is a defence to the charge.

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