Citation: Sharrock v R [2019] NSWDC 850
Court: District Court of New South Wales
Date: 20 December 2019
Judge: Grant DCJ
Background
The appellant, a police officer based at Wagga Wagga, was off duty in Albury in the early hours of 15 April 2018 when an altercation occurred outside a pizza shop. He was punched and likely suffered temporary concussion. A colleague, Senior Constable Guild, was also involved and injured in the incident.
Later that same day, between 14.52 and 14.55, the appellant accessed the NSW Police COPS database from his work terminal at Wagga Wagga. He viewed information relating to the Dean Street, Albury incident, including details about named individuals involved. Senior Constable Evans had orally requested he provide a witness statement about the incident.
The Local Court at Albury found the charge proved: that the appellant had caused unauthorised access to restricted data in the COPS system, knowing the access was unauthorised, contrary to section 308H(1) of the Crimes Act 1900. The Magistrate discharged the appellant into medical care under the Mental Health (Forensic Provisions) Act. The appellant appealed to the District Court on the ground that he was not guilty.
Legal Issues
- Whether the appeal was conducted as a rehearing on the transcript and exhibits, and what standard of review applied.
- Whether the appellant's access to the COPS system was unauthorised for the purposes of section 308H(1) of the Crimes Act 1900.
- Whether, if the access was unauthorised, the appellant knew it was unauthorised at the time he accessed the system.
Decision
Nature of the Appeal
The appeal proceeded under section 18 of the Crimes (Appeal and Review) Act 2000 as a rehearing based on the transcript and exhibits from the Local Court. It was not an appeal de novo (at [3]). The District Court was required to form its own view of the facts while giving appropriate weight to the Magistrate's advantage in seeing and hearing the witnesses. The Court could substitute its own decision where the appellant demonstrated legal, factual, or discretionary error in the Local Court's order (at [4]).
Whether the Access Was Unauthorised
The District Court found the prosecution documents contained no information, express or implied, communicating that accessing COPS for the purpose of preparing a witness statement was prohibited (at [48]). Retired Superintendent Goodyear, a former officer with 31 years of police training experience, gave evidence that officers are trained to use COPS and other resources to refresh their memory when making statements, and that no distinction is drawn between officers who are in uniform and those who are off duty at the time of the relevant incident (at [49]-[50]). The Magistrate's reasons did not engage with this evidence beyond noting that it was called, and the District Court regarded this as a significant omission (at [51]).
The District Court also rejected the prosecution's submission that the appellant lacked authority to access COPS because the incident occurred in Albury rather than his home station of Wagga Wagga. A police officer's affirmation is to serve the people of New South Wales generally, and policing authority is not confined to a particular district (at [52]). The Court further drew a distinction between the authority to access COPS and the evidential consequences of doing so, finding that it is not unusual for a police officer who is a witness to refresh their memory from COPS before making a statement (at [53]).
Whether the Appellant Knew the Access Was Unauthorised
At the time the appellant accessed COPS, he had not received either of the emails later sent on 17 and 18 April 2018 informing him that he was a victim and that offenders had been identified (at [38]). The Court found that any conflict of interest arising from his dual status as potential victim and police witness may not have been apparent to him at the time of access, and that conflict of interest must in any event be distinguished from knowledge that the access was unauthorised (at [41]-[42]). There was a reasonable possibility the appellant accessed the system to prepare a statement, as orally requested by Senior Constable Evans (at [54]). The Court was not satisfied beyond reasonable doubt that the access was unauthorised or that the appellant knew it was (at [57]).
Orders Made
- Appeal allowed.
- Appellant found not guilty.
- Charge dismissed.
Key Takeaways
- A section 18 rehearing under the Crimes (Appeal and Review) Act 2000 requires the appellate judge to form their own view of the facts, while recognising the trial Magistrate's advantage in observing witnesses, and is not a hearing afresh (at [3]-[4]).
- Under section 308H(1) of the Crimes Act 1900, the prosecution must prove beyond reasonable doubt both that the access was unauthorised and that the accused knew it was unauthorised; proof of one element does not establish the other (at [57]).
- A police officer's authority to access the COPS database for the purpose of preparing a witness statement is not necessarily negated by the fact that the underlying incident occurred while the officer was off duty or in a different policing district (at [50], [52]).
- Conflict of interest arising from a police officer's involvement in an incident is legally distinct from knowledge that accessing the COPS system in connection with that incident is unauthorised (at [41]-[42]).
- Where a trial court's reasons fail to engage with significant defence evidence, an appellate court on rehearing may treat that omission as a basis for reconsidering the outcome, particularly where the unaddressed evidence bears directly on a contested element of the offence (at [51]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Mental Health (Forensics Provisions) Act 1990
Cases
- Charara v R [2006] NSW CCA 244
- Dyason v Butterworth [2015] NSWCA 52
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- Salter v DPP (NSW) [2011] NSW CA 190