On 21 December 2021, Alexander McDonald Fawns (the appellant) was found guilty of five counts of unauthorised access of restricted data held in a computer contrary to s 308H(1) Crimes Act 1900, at the Downing Centre Local Court. The appellant appeals as of right against the finding of guilt in relation to each of the offences.
[2]
Facts
The appellant is a serving police officer. At the time of the alleged offences he had been a police officer for between 14 and 20 months. The appellant was a person of good character.
In or about early 2018 the appellant met Emily O'Sullivan (aka Emily O'Sullivan Pennycuick) and an intimate relationship developed between them. The relationship lasted for a few months and thereafter they remained friends.
The Computerised Operational Policing System (COPS) is the central repository for information held by the NSW Police Force about people and incidents that are attended by police and/or investigated.
When logging into COPS, a user is presented with a warning screen that requires acknowledgement of the warning by entering their registered number and password to log into the system.
The warning screen states:
1. the computer system is the property of NSW Police;
2. no person is allowed to access the system other than for a lawful purpose;
3. the system contains personal, confidential and sensitive information;
4. data on the system must not be disclosed to unauthorised persons and it is not to be accessed for personal, demonstration or training reasons;
5. unauthorised access, corrupt disclosure, unlawful use of personal information or offering to supply personal information carry criminal sanctions including a fine or imprisonment or both, together with probable dismissal and/or managerial action;
6. s 308H of the Crimes Act 1900 provides for penalties of up to two years imprisonment, or a maximum fine or $50,000 or both come up for the improper use of such records or any access gained without authority or lawful excuse.
Fawns v R [2022] NSWDC 488 | Case summary | Zoe
It was an agreed fact that the appellant had to acknowledge this warning before gaining access to the COPS system.
In or about the first half of 2019, Ms O'Sullivan told the appellant that there had been a violent incident between her father, Steven O'Sullivan, and her grandparents, during which her father attacked her grandparents with a knife. She told the appellant that the police had been called to the incident. She was concerned about her relationship with her father and that she lived with her grandparents for protection. She asked the appellant about an Apprehended Domestic Violence Order (ADVO) which she believed had been taken out to protect her grandparents and in particular if there was an order and if it protected her. The appellant told her that he could not tell her about it unless she made a specific request to him when he was on duty.
On 24 June 2019 the appellant and Ms O'Sullivan exchanged text messages to the effect that he was on duty at Riverwood Police Station and that she could ring him and ask him what she wanted to know about the ADVO.
On 24 June 2019 the appellant accessed the COPS system at Riverwood Police Station and accessed information relating to Steven O'Sullivan (Sequence 1) and Emily O'Sullivan Pennycuick between 3.10pm and 3.33pm (Sequence 2). In doing so, the appellant viewed a COPS event summary of the ADVO, the criminal history of Mr O'Sullivan and other information reports relating to him.
The appellant later told Ms O'Sullivan that there was an ADVO in place, that it protected her and the conditions of the order.
On or about 26 October 2019 Ms O'Sullivan met a male, RM, at a nightclub and they later commenced a sexual relationship. RM told Ms O'Sullivan that he was 25 years of age and a police officer, neither of which were true. On 27 October 2019, Ms O'Sullivan told the appellant about her relationship with RM.
Between 27 October 2019 and 11 November 2019, Ms O'Sullivan showed the appellant photographs of RM in police uniform. The appellant pointed out to Ms O'Sullivan that the police uniform was fake and suggested that she confront RM about what he had told her. RM admitted to Ms O'Sullivan that he had lied to her about being a police officer and about his age. Ms O'Sullivan conveyed this to the appellant. Ms O'Sullivan also told the appellant that RM had made inappropriate comments to her about sex and consent and that she had woken up to RM performing oral sex on her. I pause to note that some of these inappropriate comments were contained in explicit text messages passing between Ms O'Sullivan and RM. The appellant told Ms O'Sullivan that he was concerned about what she had told him. At that time, Ms O'Sullivan wanted to preserve her relationship with RM and did not wish to make a complaint to the police.
On 12 November 2019 the appellant accessed the COPS system at Hurstville Police Station and accessed information relating to RM between 7.54am and 3.57pm (Sequence 3). The appellant accessed information relating to reported allegations of sexual misconduct by RM.
On 6 December 2019 an intelligence briefing referred to as the "Sutherland Shire Flyer" was handed out to all police officers working in the Sutherland Local Area Command (LAC). The briefing included information about persons of interest (POI) in the LAC and surrounding commands and named Mr O'Sullivan as a POI.
On 6 December 2019 the appellant accessed the COPS system at Kogarah Police Station which was in the St George LAC and accessed information relating to Steven O'Sullivan between 3.51pm and 4.05pm (Sequence 4).
In the period following Sequence 3, the appellant continued to discuss RM with Ms O'Sullivan. On 13 November 2019 the appellant suggested that Ms O'Sullivan report RM's conduct to the police, at least anonymously. After that, Ms O'Sullivan was told by one of RM's friends that he had been accused of drugging and sexually assaulting two women. When she informed the appellant about this, he sent her a message that said:
You know I can't tell you anything from the cops but if I am making a big deal about him technically raping you there's probably a good reason for that.
On 10 January 2020 the appellant accessed the COPS system at Kogarah Police Station and accessed information relating to RM (using two different spellings of his name), KLB and MC (being two persons mentioned in entries relating to RM alleged to have made allegations of sexual misconduct against him) between 4.25pm and 4.49pm (Sequence 5).
On 15 January 2020 the appellant asked Ms O'Sullivan for a copy of the photographs of RM in police uniform, which she did.
At this time, Ms O'Sullivan was considering making a complaint about RM. On 25 January 2020, Ms O'Sullivan asked the appellant to make an anonymous report for her about RM.
The appellant's evidence was that he believed that RM had committed criminal offences and that he was entitled to access information on COPS about him. He believed that he was exercising his duty as a police officer. He was trying to persuade Ms O'Sullivan to make a complaint. He thought that the information on COPS about RM corroborated Ms O'Sullivan's account and confirmed his suspicions about RM. He did not believe that he had a conflict of interest. In cross-examination the appellant stated that he understood that COPS could not be accessed about family or friends for personal use or curiosity. His evidence was that he did not access the information on COPS about RM for curiosity, but because he believed an offence or offences had been committed. He denied there was a conflict of interest. He thought that he may have been in neglect of his duty if he failed to report the possible sexual assault by RM on Ms O'Sullivan.
In January 2020 an audit of the use of COPS was conducted. On 30 January 2020, the appellant was told he was under investigation for his use of COPS. He told Chief Inspector Hill that he was going to submit an intelligence report about RM, but the Chief Inspector advised him not to.
It was agreed that the appellant did not advise any of his supervisors that he had accessed the COPS system on each occasion, that he did not make a note on the system or in his police issued notebook about his access to the system and that he did not make any intelligence reports about his access to the system.
[3]
The Relevant Law
The applicable principles to be applied in determination of the appeal are as follows.
[4]
Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001
Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).
[5]
The offence
Section 308H Crimes Act 1900 relevantly provides:
(1) A person--
(a) who causes any unauthorised access to or modification of restricted data held in a computer, and
(b) who knows that the access or modification is unauthorised, and
(c) who intends to cause that access or modification,
is guilty of an offence.
: Maximum penalty--Imprisonment for 2 years.
(2) An offence against this section is a summary offence.
(3) In this section--
"restricted data" means data held in a computer, being data to which access is restricted by an access control system associated with a function of the computer.
Section 308B Crimes Act 1900 relevantly provides:
(1) For the purposes of this Part, access to or modification of data, or impairment of electronic communication, by a person is
"unauthorised" if the person is not entitled to cause that access, modification or impairment.
(2) Any such access, modification or impairment is not unauthorised merely because the person has an ulterior purpose for that action.
Sections 308B and 308H were considered by the Court of Appeal in Salter v Director of Public Prosecutions (NSW) [2011] NSWCA 190. In Salter, a serving police officer with the rank of Sergeant, used the COPS system to access information relating to a man with whom she was in a personal relationship, the man's partner, premises at Bondi and persons associated with those premises. Her access was prompted by the man telling her that his partner was pregnant with his child. It was an agreed fact that although the applicant was authorised to access the COPS system in the course of her duties, she did not access the relevant information in the course of her duties as a police officer. She sought to rely on the meaning of "unauthorised access" as a statutory defence.
McClellan CJ at CL (as his Honour then was), Allsop P (as his Honour then was) and Sackville AJA agreeing) stated in relation to the provisions at [18]-[19] and [24]-[25]:
[18] Section 308H(1) creates an offence where a person knowingly has unauthorised access to restricted data in the computer. Section 308B(1) provides that access is unauthorised if the person is not entitled to cause that access. Although an officer of the police service who has the relevant authority is entitled to access the system in furtherance of a task required of that person in the discharge of their duties as a police officer, they are not otherwise entitled to access the system.
[19] The object of s 308B(2) is to protect an officer who has a legitimate entitlement to access particular data but who may also have an ulterior purpose for that access. Accordingly, if there is a legitimate purpose even though there is also an ulterior purpose, the officer will not breach the Act.
…
[24] In the present case the applicant's authority to access data in the COPS system was confined. The access which she obtained was for a personal purpose having no relationship with any function she performed on behalf of the police.
[25] The applicant's reliance upon s 308B(2) is misplaced. That subsection has the purpose of ensuring that when a person accesses the COPS system exercising their authority they will not commit an offence "merely" because they have in addition some ulterior purpose. That was not the present case.
In Sharrock v R [2019] NSWDC 850 an off-duty police officer was injured in a brawl at Wagga Wagga. He was asked by the investigating officer to prepare a witness statement setting out his observations and details of the incident. For that purpose, he accessed the COPS system to refresh his memory and to assist him in preparing his statement, which on the evidence was a usual practice for police officers in the execution of their on-duty functions. Judge Grant could not be satisfied beyond reasonable doubt that the appellant's access to COPS was unauthorised and he allowed the conviction appeal. In my view, Judge Grant's decision was an orthodox application of the principles in Salter.
[6]
Analysis of the Magistrate's Reasons
The magistrate delivered an ex-tempore judgment about one month after completion of the hearing. The hearing occupied three days of evidence and the tender of 40 documentary exhibits.
The magistrate correctly identified that the case involved determining if the appellant's access to COPS was unauthorised and if he knew that to be the case at the time of seeking access. The magistrate referred to Salter and Sharrock and set out the ratio of both decisions fairly.
The magistrate noted that the appellant raised good character and how that could be taken into account.
The magistrate's summary of the documentary evidence and the oral evidence was fair and thorough, and it is not necessary to refer further to that aspect of the magistrate's reasons.
The magistrate noted that the allegations made by Ms O'Sullivan against RM involved serious criminal offences, which I infer meant that they would have been of some interest to the police and worthy of investigation. He noted that there may have been good reasons for Ms O'Sullivan to pursue them through informal channels with the appellant as opposed to making a complaint and being exposed to the trauma of jury trial.
The magistrate stated that the appellant's evidence was "quite verbose and very detailed". He presented as a very polished witness, but his answers about his reasons for accessing COPS were "disingenuous". He further did not accept the appellant's evidence that he was going to file an anonymous report because it would not have been able to be followed up by other police and therefore would have been useless.
This disingenuity stemmed on the magistrate's reasoning from the extent of the material that the appellant had accessed on COPS, assuming that at the time when he first accessed COPS that it was lawful for him to do so and that he did not believe that it was unauthorised (the assumption). The magistrate found, after making the assumption as to the access involved in Sequences 1 and 2 that the appellant was not trying to start or promote an investigation:
He then went on to access a great deal of personal information about Mr O'Sullivan that was not relevant to the AVO. It is obvious to my mind that he wanted a big picture of the man without taking any further steps by way of investigation or otherwise.
As to Sequences 1 and 2, the magistrate found that the text messages passing between Ms O'Sullivan and the appellant (which may have been "tongue in cheek") together with the lack of any contemporaneous note made in accordance with procedure and his previous sexual relationship with Ms O'Sullivan, demonstrated that the appellant had a conflict of interest. He continued that the appellant, by telling Ms O'Sullivan, that it was unlawful to access COPS for her and asking her to make an approach to him while he was on duty to do so, demonstrated he was acting in a personal capacity and not in the capacity of a police officer trying to instigate or promote an investigation. He continued:
As a police officer if he had accessed the computers because Mr O'Sullivan was unknown to him but did so at the same time to find out, for example, something related to it but not pertinent to an investigation, that would be an ulterior motive.
As to Sequence 4, the magistrate found that the appellant accessed COPS about Mr O'Sullivan on the second occasion out of curiosity and not in his role as a police officer, "to further the interests and policies of [the] police for a person who was not in his Police Area Command" and who he knew was connected with Ms O'Sullivan.
As to Sequence 5, the magistrate found that the accessing of the information on COPS relating to KLB and MC, who were the alleged victims of RM, "probably …caused them a great deal of heartache". There was no evidence to support this finding. Neither of KLB or MC were called to give evidence and there was no evidence that any one had spoken to them about the matter or if they had any knowledge that the relevant events had been accessed. I have considerable doubt that they would have been concerned that a police officer had viewed the events in connection with a similar allegation, because that was the very purpose (ie the creation of intelligence on RM) for which those records had been created.
It was difficult to identify any reasoning that related to Sequence 3. It is possible there is an error on the transcript of the magistrate's reasons at T42 line 32 and that a reference to "Mr Sullivan" should be a reference to RM. In those circumstances, doing the best I can to interpret the reasons the matters in [45] above would apply to Sequence 3.
[7]
Consideration
I am satisfied that the magistrate's decision was affected by error and that having conducted an independent review of the evidence that the appeal should be allowed, for the interdependent reasons that follow.
First, the charges were each particularised on the basis that the appellant acted unlawfully for the entire time that he accessed COPS on each occasion. The evidence was that the relevant software could identify what material was accessed on each occasion but could not discern if the appellant read that material or for how long it was available to him. For example, it was common ground that the appellant got access to the terms of the ADVO and passed that information to Ms O'Sullivan. If that was an authorised access, then he had a legitimate reason to access COPS and he should be acquitted of sequences 1 and 2, irrespective of what other information that he may have had access to. In other words, if he was authorised to access COPS for some part of the time that he did, he is entitled to an acquittal. Contrary to the way the charges were particularised, the magistrate impermissibly reasoned that Sequences 1 and 2 were proven by reference to the extent of the material accessed in so far as it related to Mr O'Sullivan.
Second, the magistrate's reasoning was too focussed too narrowly, by only finding that the appellant had an ulterior motive for accessing COPS on each occasion and failing to exclude any reasonably possible legitimate purpose that he may have had.
For Sequences 1 and 2, Ms O'Sullivan was entitled to the information she was seeking about the ADVO and could have asked any on-duty police officer to provide it to her. At the time, the appellant accessed COPS to respond to her enquiry, he was on duty and she had asked him for the information that properly related to her. For sequences 1 and 2, I am satisfied that the appellant had a legitimate purpose for accessing COPS. It can be accepted that he had a conflict of interest and that it would have been more prudent for him to advise Ms O'Sullivan to get another officer to assist her. I am not satisfied that I should infer that the conflict of interest amounted to an ulterior purpose in the circumstances of this case. Even if these matters amounted to an ulterior purpose, they were insufficient as a matter of law to make the access unauthorised. Further, I do not accept the premise of the magistrate's reasoning that the appellant's actions had to start an investigation or promote an existing investigation. Ms O'Sullivan asked the appellant what the terms of the ADVO were and if she was protected by it. This proper request did not involve a current or potential investigation. On accessing the information, it is reasonably possible that a prudent police officer would have wanted to assess the subject's background to determine their propensity for violence before coming to an opinion as to the suitability of the terms of an ADVO. This would have reasonably necessitated getting access to other records held on COPS.
For Sequence 3, the appellant had reasonable grounds to suspect, supported by photographic evidence that RM was impersonating a police officer and he was encouraging Ms O'Sullivan to make a complaint about that. As the magistrate noted this was a potentially serious offence and the false representation had been relied on by RM for the purpose of commencing a sexual relationship with Ms O'Sullivan. I accept that the appellant's conflict of interest was more significant when it came to RM, because of his previous relationship with Ms O'Sullivan and the content of their text message communications. I infer that the appellant had an ulterior purpose for accessing COPS in sequence 3, however, that is insufficient to make the appellant's access unauthorised.
For Sequence 4, the appellant accessed information on COPS relating to Mr O'Sullivan after receiving the Sutherland Shire Flyer which identified him as a POI. Detective Sergeant Antanasovski accepted in his evidence that COPS would be the "first place to go" to find information on a POI named in an intelligence briefing. By the time the appellant received the Sutherland Shire Flyer, he had some existing knowledge about Mr O'Sullivan that he may have been able to add to the latest intelligence. I am not satisfied that the appellant did anything wrong in accessing COPS relating to Mr O'Sullivan in Sequence 1 and that his relationship with Ms O'Sullivan made the access involved in Sequence 4 unauthorised. If he had an ulterior purpose this would not have made this access unauthorised. I cannot exclude the reasonable possibility that the appellant had a legitimate purpose for accessing COPS relating to Mr O'Sullivan after receiving intelligence relating to him.
The access to COPS the subject of Sequence 5 occurred after a period of increasing reasonable suspicions about RM based on what the appellant was being told by Ms O'Sullivan. The appellant had reasonable grounds for believing that RM was deceitful and had participated in sexual misconduct. Further, Ms O'Sullivan was coming to similar views and had become concerned enough to confront RM about his deceit and sexual commentary and to ask the appellant to make an anonymous report or an intelligence report. The conflict of interest was more pronounced by the time of the final access to COPS. I am satisfied that it amounted to an ulterior purpose by this time. However, the allegation was serious and I cannot exclude the reasonable possibility that he had a legitimate purpose to access COPS.
Third, I am not satisfied beyond reasonable doubt that the appellant knew that his access was unauthorised. I found the magistrate's findings as to the appellant's credit unconvincing. The disingenuity relied on by the magistrate stemmed from a misapplication of Salter and/or a misunderstanding of the particularisation of the charges. Further, I am not persuaded by the magistrate's reasoning as to the futility of making an anonymous intelligence report.
For sequences 1 and 2, Ms O'Sullivan was entitled to the information that she was seeking from an on-duty police officer. He required her to ask him when he was on duty because he believed that was necessary and that he would be thereby authorised do so. I accept that it was reasonably possible that the appellant believed that he was entitled to access COPS relating to RM in Sequences 3 and 5 because he thought that criminal offences had been committed and as a sworn police officer that he had a duty to investigate them. As to sequence 4, it is reasonably possible that the appellant believed that he was authorised to access COPS to further his understanding of why Mr O'Sullivan was a POI or to see if he could contribute to the intelligence held on him.
[8]
Orders
For all of these reasons, I am not satisfied beyond reasonable doubt of the elements of the offences.
The orders I make are:
1. Appeal allowed.
2. I set aside the convictions imposed and/or findings of guilt made by the magistrate and the penalty imposed on the appellant.
[9]
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Decision last updated: 20 October 2022