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District Court 19 October 2022

Fawns v R

[2022] NSWDC 488

Public order & justice offences
APPEALS FROM FINDING OF GUILT

Citation: Fawns v R [2022] NSWDC 488
Court: District Court of NSW
Date: 19 October 2022
Judge: Scotting DCJ

Background

The appellant was a serving police officer with between 14 and 20 months' experience at the time of the alleged offences. He had developed a personal relationship with a woman who later brought concerns to him about two individuals: her father (who had allegedly attacked her grandparents with a knife and was the subject of an ADVO) and a man she had met at a nightclub who had made false claims about being a police officer and had allegedly engaged in sexual misconduct.

Across five separate occasions between June 2019 and January 2020, the appellant accessed the NSW Police Force's COPS database from police stations while on duty. Those accesses related to the woman's father (Sequences 1, 2, and 4), the man she had met (Sequences 3 and 5), and two women named in reports as alleged victims of the same man (Sequence 5). Each time the appellant logged in, he was required to acknowledge a warning screen confirming the terms of authorised use.

The Downing Centre Local Court found the appellant guilty on 21 December 2021 of five counts of unauthorised access to restricted data held in a computer, contrary to s 308H(1) of the Crimes Act 1900. The appellant appealed all five findings of guilt to the District Court.

Legal Issues

  • Whether the appellant's access to COPS on each of the five occasions was "unauthorised" within the meaning of s 308H(1) Crimes Act 1900, read alongside s 308B.
  • Whether the magistrate erred in finding that the appellant had an ulterior motive rather than a legitimate police purpose for each access.
  • Whether the prosecution established beyond reasonable doubt that the appellant knew his access was unauthorised at the time.
  • Whether the magistrate applied the correct legal principles from Salter v Director of Public Prosecutions (NSW) [2011] NSWCA 190 in assessing the charges.

Decision

Applicable principles on appeal

A District Court appeal under s 18 of the Crimes (Appeal and Review) Act 2001 is a rehearing on the certified transcript, not a fresh trial. The appellant must demonstrate factual, legal, or discretionary error to succeed, but the prosecution retains the onus of proving guilt beyond reasonable doubt throughout (at [25]-[31]). The District Court was required to form its own view of the facts while recognising the magistrate's advantage in seeing and hearing witnesses (at [26]).

Error in the magistrate's reasoning

The District Court was satisfied the magistrate's decision was affected by error for three interdependent reasons (at [49]). First, each charge was particularised on the basis that the appellant acted unlawfully for the entire duration of each COPS session. If the appellant had a legitimate reason to access COPS for any part of a session, he was entitled to an acquittal on that count. The magistrate impermissibly used the breadth of material accessed to prove the charges rather than asking whether any legitimate purpose existed (at [50]). Second, the magistrate focused too narrowly on finding an ulterior motive without adequately excluding any reasonably possible legitimate purpose (at [51]).

Sequences 1 and 2 (ADVO and father's records, June 2019)

The woman was entitled to information about the ADVO and had properly asked the appellant for it while he was on duty (at [52]). The District Court accepted that a conflict of interest existed and that it would have been more prudent to refer her to another officer, but was not satisfied that the conflict amounted to an unauthorised access as a matter of law. It also rejected the magistrate's premise that the appellant's access had to initiate or advance a formal investigation (at [52]).

Sequence 3 (man's records, November 2019)

The appellant had reasonable grounds to suspect the man was impersonating a police officer and had committed potentially serious offences against the woman. Even accepting that the appellant had an ulterior purpose by this stage, the District Court held that an ulterior purpose is insufficient as a matter of law to render COPS access unauthorised (at [53]).

Sequence 4 (father's records revisited, December 2019)

The appellant accessed COPS relating to the woman's father after receiving an intelligence briefing (the "Sutherland Shire Flyer") that identified him as a person of interest. A prosecution witness, Detective Sergeant Antanasovski, accepted that COPS would be the first place to look for information on a named person of interest. The District Court could not exclude the reasonable possibility of a legitimate purpose (at [54]).

Sequence 5 (man's records and alleged victims, January 2020)

By this point the conflict of interest was more pronounced and the District Court inferred an ulterior purpose. Nevertheless, the allegations were serious and the court could not exclude the reasonable possibility of a legitimate purpose for accessing COPS (at [55]).

Knowledge of unauthorised access

The District Court was not satisfied beyond reasonable doubt that the appellant knew his access was unauthorised on any occasion (at [56]-[57]). The magistrate's adverse credibility findings rested on a misapplication of the principles in Salter and a misunderstanding of how the charges were particularised. The court accepted it was reasonably possible the appellant believed he was acting within the scope of his duties on each occasion (at [57]).

Orders Made

  • Appeal allowed.
  • Convictions, findings of guilt, and penalties imposed by the magistrate were set aside.

Key Takeaways

  • Under ss 308B and 308H of the Crimes Act 1900, access to a restricted computer system such as COPS is not rendered unauthorised merely because the officer also had an ulterior or personal motive, provided a legitimate police purpose cannot be excluded beyond reasonable doubt (at [52]-[55]).

  • The District Court confirmed that each charge of unauthorised COPS access must be assessed against whether the officer had any legitimate purpose for accessing the system during the relevant session, not against the full breadth of the material viewed during that session (at [50]).

  • A conflict of interest arising from a personal relationship between an officer and a person seeking information does not, without more, transform an otherwise authorised COPS access into an unauthorised one (at [52]).

  • Receiving a formal intelligence briefing naming a person of interest can provide a legitimate basis for a subsequent COPS search relating to that individual, even where the officer already had some personal knowledge of that person (at [54]).

  • The prosecution bears the onus of proving beyond reasonable doubt that the accused knew the access was unauthorised; demonstrating an ulterior motive or a conflict of interest is not, by itself, sufficient to discharge that onus (at [56]-[57]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- Salter v Director of Public Prosecutions (NSW) [2011] NSWCA 190
- Sharrock v R [2019] NSWDC 850