Sharrock v R

THE FACTS

1. The appellant is charged with causing unauthorised access to restricted data and knowing that the access was unauthorised contrary to s 308H (1) of the Crimes Act. The appellant is a policeman and he accessed the data base known as the COPS system. The issue is whether the access was unauthorised and if so, whether he knew it was unauthorised.
2. The evidence before the learned Magistrate consisted of four exhibits. There was some oral evidence given by Detective Sergeant Irving, Senior Constable Evans, Senior Constable Guild and Senior Sergeant Twynam. The defence called retired Superintendent Goodyear. Exhibit 1, is an agreed statement of facts which is irrelevant to this matter and relates to a charge that the appellant pleaded guilty to. Exhibit 2 is a statement of Detective Sergeant Irving.
3. In the early hours of Sunday 15 April 2018, an incident took place outside Sweethearts Pizza Shop, which resulted in Detective Irving arresting and charging a person. The CCTV footage viewed by Irving showed the presence of the appellant. The statement of Senior Constable Evans records that she responded to a message to attend Dean Street in relation to a brawl. She spoke to the appellant and his friend. She asked the appellant if he would give a statement, he said, he would. He gave her his police registration number and she sent an email later asking for his statement.
4. The appellant works from the Wagga Wagga Police Station which is 120 kilometres from Albury. When the incident occurred outside the pizza restaurant, the appellant was off duty.
5. Exhibit 2, contained documents recording the appellant's acceptance of his offer of employment which records his agreement to having read and understood the Police Code of Conduct, which includes only accessing confidential information if required by his duty and not making improper use of police force information or resources.
6. Exhibit 3, contains a video with specific reference to the unlawfulness of people accessing confidential computer information for personal reasons. Exhibit 4 is a brief preparation guide from the Police Force, which makes the point that copying other people's statements causes difficulty in relation to credibility of police officers' evidence.
7. Senior Constable Guild gave evidence that he saw a fight starting and went to help stop it, he was injured. He was not arresting anybody whilst off duty. Guild told Senior Constable Evans that he did not want to be involved and was reluctant to make a statement. On 17 April 2018 at 23:05, Senior Constable Evans sent the following email to the appellant. "Hi there Brayden, just wondering if you might type me up a statement for the incident at Sweethearts in Albury on the weekend. I have watched the footage and have an offender who assaulted you, that I would like to charge? It's the same offender that hit your offsider. If you can send it back to me via email that would be awesome. Kind regards Simone Evans."
8. On the following day Sergeant Longley sent a follow-up email at 3.51pm which reads: "Hello gents, I am assisting Senior Constable Simone Evans who is now on three weeks leave, regarding the incident on the weekend at Sweethearts. I have reviewed the footage, as has our investigation manager and detective sergeant, and we are all satisfied that you have both done nothing wrong in this instance. The person of interest is Jarrah Mayksymo, he is very well known in Albury due to his football profile and is a high risk DV offender and for serious assaults. He has bad history of breaking people's jaws/eye-sockets and the like whilst on the drink. Unfortunately in some of these cases people have not given statements for fear of retribution and he has gotten away with some of them. He just returned to Albury after two years in Melbourne, playing footy to get away from the area, but on his first night out after playing footy for Henty this incident occurred. Brayden, you might not remember, but you were knocked out momentarily when Jarrah unloaded. It looks like he tried to hit you, Nick, but got Brayden flush on the jaw. We are obviously very keen to charge Jarrah for the assault, but obviously need statements first. I am not going to sit here and try and direct or compel you, but it would be in your interests to both come forward and give your version, either in a statement or the very least inform your inspectors of the incident. The officer in charge of Albury, Inspector Russell, is aware of the incident such is Jarrah's profile, and the fact off-duty police were involved. We arrested and charged his brother Ziggy Kennedy shortly after this for assaulting a security guard. When speaking with him about the fight he knew you were both cops so I'm not sure if there was an earlier interaction with him somewhere else in the night. At the very least his actions an affray, but there is clear ABH on you, Brayden". The appellant responded as follows: "Hi Sergeant, thank you for the email about the weekend. The incident is very hazy for me at the moment, but I do remember Jarrah trying to fight earlier and he knew that we were cops. Are you able to send me a copy of the footage to refresh my memory? More than happy to supply a statement".
9. An audit was conducted of the appellant's computer terminal. It showed that on 15 April he had accessed the COPS system at 14.52 through to 14.55 and looked at Jeff Crossman, Jarrah Mayksymo, Ziggy Kennedy, Dean Street, Narad Koirala, intersection Kiewa /Dean Street and Beer Deluxe Albury.
10. Senior Sergeant Tynan of the Professional Standards Command provided a statement dated 30 August 2018. At [5] he states: "Prior to user logging into COPS a warning screen appears that the user is required to acknowledge. The warning states "This computer system is the property of NSW Police no person is allowed access other than for a lawful purpose. Your access is being monitored to ensure it is lawful. The system contains personal and confidential and sensitive information. All personal information is protected under the Privacy and Personal Information Protection Act 1998 (NSW). Other data on the system may be protected by law or Public Interest Immunity. Data on the system must not be disclosed to unauthorised persons and you are not authorised to access it for personal, demonstration or training reasons. There is a separate training data base. Unauthorised access, corrupt disclosure, unlawful use of personal information or offering to supply personal information carrying criminal sanctions ranging from a fine, imprisonment or both, together with probable dismissal or managerial action. If you proceed to use this system you acknowledge this warning and conditions. Please exit now if you do not accept them unless you are using the training database." He goes on to state at [7] the following: "After acknowledging this warning the user is required to enter their registered number and password. This logon screen has another warning that states "This system contains confidential information. Information must not be disclosed to unauthorised persons under any circumstances nor are you authorised to access information for personal reasons/training purposes. Section 308 of the Crimes Act of 1900 provides for penalties of up to two years imprisonment or a maximum fine of $50,000 or both for the improper use of such records or for any access gained without authority or lawful excuse"."
11. He conducted an audit of the appellant's computer which revealed the following: At 14.52 15 April 2018 Sharrock accessed the summary of E67055824 (V) screen of COPS Event E67055824 using the program EVE591S. As a result of accessing this COPS event details of the entities Jeff Crossman, Central Index number 755397237, Jarrah Mayksymo CN711825906, Ziggy Kennedy CNI729051380 and the location Dean Street, Albury location reference number 11742024 had been displayed on the screen. Some of the event narrative is also displayed on the screen as part of the Event summary. The remaining narrative can be accessed by scrolling down the narrative. The access was completed on computer terminal WAGCWTD6. COPS E67055824 is the report of an assault and offensive behaviour and other incidents that occurred between 03.50 and 04.07 15 April 2018 at Dean Street, Albury involving Crossman, Mayksymo and Kennedy.
12. The appellant, after he had accessed the COPS system, was taken to the Wagga Hospital as a result of the delayed effects of concussion. It would appear that in the incident outside the pizza parlour he was punched and fell to the ground. It was more likely than not that he was temporarily concussed as a result of the punch.

ORAL EVIDENCE

1. Detective Sergeant Irvine, the officer in charge, was cross-examined on the contents of exhibit 4, the Brief Preparation Guide, and in particular p 26 s 1 which states: "A police statement is your account of what has taken place, therefore, you should bring together all your resources that will assist in making the best statement possible. For example, notebook, facts sheet, web Computerised Operational Policing System entry (COPS) and motor vehicle diary".
2. The appellant relies upon this section of the Brief Preparation Guide to mount an argument that he was authorised to access the COPS system to help prepare his statement.
3. In cross-examination at transcript 30 lines 20 to 27, Senior Constable Evans said she was investigating an assault and that the victim of the assault was a security guard. She went on to explain that one could take a statement from a civilian witness in written form or typed form. She said that a police officer may sit down and type out their version of events, (transcript 31 lines 7 to 15). She agreed that if she did not have notes in her notebook she would access the COPS system to help her make a statement (transcript 32 lines 43 to 44).
4. In re-examination she said she would not let witnesses or victims look up COPS and you would only look up COPS if you have a reason to do so. She went on to say and a placed emphasis upon, or "you have an involvement in the event" (transcript p 33 line 20 to 28).In this case the appellant had an involvement in the event.
5. Senior Constable Guild gave evidence. He said he saw a fight starting and he went to help stop a fight (transcript 37 line 6). "What actually happened was it was a small security guard and he was pushing someone back and two guys were looking to try and have a fight. I just went to help the security guard stop that guy moving forward to have a fight". (Transcript 37 lines 18 to 21) He went on to say that when Inspector Gooch was taking his statement, "She was looking it up" (Transcript 38 lines 29). I interpret his evidence to mean that she was looking at the COPS database when she was taking the statement from Officer Guild. He gave evidence that, "It's common practice that we will look up certain events or narratives of facts sheets to complete a statement and then in that statement we will explain that we did look up that certain facts sheet COPS notebook or narrative".(Transcript 38 lines 39 to 42). In re-examination he said he does not look up COPS for off-duty matters. (Transcript 40 line 15).
6. The appellant did not give evidence. The defence called Francis Goodyear, a retired superintendent of police, who had been involved in the training of police officers for 31 years.
7. In response to the question "Can you tell us what training is given to police officers with respect to their authority to access COPS for the making of their own statements?" He said "In using all the information available to them in order to refresh their memory to make the statement whether that be notebook. COPS event, facts sheet or broadly any other material evidence at hand emanating from that particular incident"(Transcript 54 lines 4 to 15).
8. He said that no distinction is drawn as to authority to access COPS when making a statement, when the police officer involved in an incident is in uniform or not in uniform (Transcript 54 lines 19 to 26). He had not seen it written or said that a police officer is disentitled to access COPS in making a statement that has its origins in events which occur off-duty as opposed to on-duty (transcript 55 lines 22 to 46).

LEGISLATION

1. Section 308 (H) 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. The elements of the offence are: 1. that the defendant caused an unauthorised access to restricted data held in a computer, 2. Knowing that the access was unauthorised and, 3. Intending to cause that access.
3. Section 308 (B) 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. (3) For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person's conduct substantially contributes to the unauthorised access, modification or impairment."

RESPONDENT'S SUBMISSIONS

1. The respondent contended that when the appellant accessed the COPS system, he was not acting in the course of his duty and therefore was not authorised to access information related to the incident. It was contended that the first element, namely it was the defendant who caused access to the restricted data was proved beyond reasonable doubt. This element was conceded by the defendant, the defendant also conceded element 3, namely the appellant intended to cause access.
2. As to the second element of "knowing the access was unauthorised". The respondent relies upon the following:

• The COPS warning screen that access is not authorised for personal demonstration or training reasons.
• A number of documents and policies in relation to an officer's access to COPS
• NSW Police Code of Conduct and Ethics
• Conflict of Interest Police Statement.
• NSW Police Procedure for Managing Conflict of Interest.
• Training Register of the Defendant.
• Code of Conduct for Constable, Education, Program, Students.
• Training Register of the Defendant.
• Code of Conduct for Constable Education Program Students.
• The defendants conditional offer of employment.
• Statement of Responsibility, Information and Information Systems.
• Computer Access Acknowledgement Form.

1. A number of submissions were made about conflicts of interest at [14] and [24] - [28] written submissions dated the 27 June 2019. I will deal with those submissions in my consideration of the evidence and issues.
2. The prosecution further submitted that the accused was well trained and had the knowledge of what was a lawful purpose for accessing the COPS system and what was an unlawful purpose for accessing the COPS system.

THE APPELLANT'S SUBMISSIONS

1. It was submitted on behalf of the appellant that when he accessed the COPS system that that access was authorised for the purposes of making a statement as requested by investigating police. The appellant relied upon part of the judgment of Salter v DPP (NSW) [2011] NSW CA 190 at [18] which reads, "...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..."
2. The appellant relied upon the New South Wales Police Brief Handling Guide exhibit 4 which contained the following statement: "A police statement is your account of what has taken place, therefore you should bring together all your resources that will assist in making the best statement possible, for example note book, facts sheet WEB computerised operational policing system (WEB COPS) entry and motor vehicle diary."
3. The appellant referred to the evidence of Senior Constable Evans on 5 April 2019 at transcript 31.5; "Q. All I'm asking you about is this. There are two ways to make a statement, aren't there? If it's a member of the community, you bring them in, you sit down at the computer and you take a statement from them by questions and answers. A. You can do a written statement or a typed statement. Q. Yes a typed statement. You ask them questions and answers but the police officer actually types the statement, don't they? A. Yes. Q. The other way is if police officers ask for a statement that they sit down themselves and type out their version of events? A. Yes."
4. Senior Constable Guild's evidence is relied upon by the appellant at transcript 38.35 and 38.45 where he was asked these questions: "Q. Have you previously looked up COPS system to prepare a statement? A. Yes. Q. Is it a practice you're taught at the Academy? A. I don't know if I'm taught at the Academy. I know that it's - I believe it's common practice that we will look up certain events or narratives of that sheet to complete a statement and then in that statement we'll explain that we are - we did look up that certain facts sheet, COPS, notebook or narrative. Q. That is the procedure requires you to say if you look up a COPS system, "in making the statement I've referred my memory of the event"? A. Yes, yeah".
5. The appellant submits that the evidence presented by the prosecution does not establish that the accused was ever instructed, trained or otherwise made aware that accessing COPS to prepare a police statement in these circumstances was unauthorised. Rather, it is submitted the evidence tends to establish that the accused acted in accordance with the documented policy in procedure.
6. It was submitted on behalf of the appellant that the evidence before the learned Magistrate established the following facts.
7. The appellant was asked to make a statement in relation to the incident at Sweethearts Pizza which was being investigated by New South Wales Police Force.
8. Police officers in New South Wales Police Force are trained and instructed to utilise resources such as COPS when preparing a police statement.
9. The accepted practice within the New South Wales Police Force is for officers to access COPS when making a statement.
10. Matters 2 and 3 had not being countermanded by any document or witness called by the prosecutor.
11. The expressed or implied authority to access COPS when preparing a police statement, does not distinguish between incidents which arise on or off duty.

CONSIDERATION

1. The appellant at the time he accessed the COPS system on 15 April 2018 had not received the email from Senior Constable Evans (17 April 2018 23.05), whereby he was informed he was a victim and the offender had been identified, nor had he received the email from Sergeant Longley (18 April 2018 03.51pm) where he was informed he was a victim and two offenders had been identified.
2. His state of knowledge when he spoke to Senior Constable Evans on Sunday 15 April 2018, after 4.11am who had not seen the CCTV footage, at that stage, was that Guild had been assaulted and injured. He was a witness to that assault. The interchange between Senior Constable Evans and the appellant was as follows: "12. I approached Guild. I said 'my name is Senior Constable Evans from Albury Police, how are you feeling, that cut looks quite deep'. I could see that Guild had red glassy eyes that appeared to be affected by intoxicating liquor, as I could smell it as soon as he leaned in to speak to me quietly. Guild said "Listen I'm a cop, we both are". Guild pointed at Sharrock. 13. I said 'New South Wales or Victoria?' Guild replied, 'NSW. I've been in for about 15 years and I've been in trouble before. I don't want to be involved'. I said 'What's your rego'. Guild said '36475'. I said 'What happened'. Guild replied 'We tried to break it up and this is what happened'. Senior Constable Smart arrived back advised him both Guild and Sharrock were New South Wales Police Officers. The ambulance crew arrived and Guild was examined by them. Guild was advised by ambulance crew he would most probably require stitches and will need to be conveyed to hospital. 14. I said to Guild, 'I'll be in touch with you this week. Think about giving me a statement'. Guild shook his head and left with the ambulance crew. 15. I then approached Sharrock. Sharrock did not appear to be affected by intoxicating liquor and was really opened about what had occurred. I said 'whereabouts do you work'. Sharrock replied 'I'm in TAG at Wagga. Nick is in GDs. I've been mates with him for ages'. Sharrock was teary and was wiping his eyes. He said, 'I wanted to help Nick, it sucks that he got injured'. I said, 'Will you give me a statement'. Sharrock said 'Yep' but I didn't see who hit me. I said 'What are you here for'? Sharrock said, 'I played football today. We went up for a few drinks and we were walking here, some guys were being idiots, bumping into people. I had to tell them to calm down. I thought it was all said and done and then this happens'. I said, 'I think you should get checked out, you could have concussion'. Sharrock said 'No, I'm fine. I just want to go to bed, I'll be fine'. I said 'If you got a concussion you shouldn't be going to bed'. Sharrock again said 'I'm fine, I'm going back to the room'. I said 'I'll send you an email to give a statement, what's your rego'? Sharrock said '49359'".
3. Although he may have been a "victim" he was not in a position to identify who hit him. It is more likely that he considered his position to be that of a witness in relation to the assault upon Guild. It is only after the receipt of the emails that the appellant was wearing the hats of 1. a witness to the assault of the security officer, 2. a witness of the assault of Guild, and 3. a victim to the assault occasioned to him.
4. At the time he accessed the COPS system, any conflict of interest there was may not have been apparent to the appellant. He may have been wearing the hat of a witness.
5. Conflict of interest must be distinguished from knowledge that the access is unauthorised. The conflict of interest submission may have gained strength if he had accessed the COPS system after receipt of one or other of the emails. This, however, is not the sequence of events. It was submitted that the defendant due to his experience should have reported the conflict of interest. This may be so but that is not the charge that he faces.
6. The prosecution submit that when the defendant accessed the COPS system he did not take the opportunity to enter a reason for access. Senior Sergeant Tynan in cross-examination at transcript 46 lines 12 to 13 said that it was not compulsory to enter a reason for access to the COPS system. The prosecution relied upon Salter v The DPP (Supra). The facts of that case are vastly different to the facts of this case. In Salter, the applicant was a serving police officer. She accessed the COPS data base and looked at 22 screens of different data during an 11 minute period.
7. Unlike this case, the information on the screens was not relevant to any current investigation being undertaken by New South Wales Police Service. The applicant was motivated to access the COPS system when Mr Garibaldi with whom she had a personal relationship told her that Mr Garibaldi's partner Karen Griffiths was pregnant with his child. The applicant threatened to tell Ms Griffiths about their relationship but Mr Garibaldi discouraged her from doing so. The restricted data which the applicant accessed related to Mr Garibaldi, Ms Griffiths' premises at Bondi and persons associated with those premises.
8. One issue for determination by the Court was whether the applicant by reason of her authority to access the COPS data base could be guilty of a breach of s 300H of the Act. A submission that the function of s 308B of the Act is to provide a statutory defence to persons who are authorised to access a computer system but do so for an ulterior motive was rejected: [17]. The Court held at [18] "Section 308(1) creates an offence where a person knowingly has unauthorised access to restricted data in their computer. S 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".
9. So if the Appellant had a legitimate purpose, even though there is an ulterior purpose, he will not breach the Act. If the appellant accessed the COPS database with an intention to produce a witness statement, he could have a legitimate purpose. If he had an ulterior purpose of identifying who hit Guild at the time of access he will not be in breach as long as he had a legitimate purpose to access data.
10. Salter did not have a legitimate purpose. The applicant's authority to access data in the COPS system was confined. The access she obtained was for a personal purpose, having no relationship with any functions she performed on behalf of the police.
11. An examination of the documents tendered on behalf of the prosecution are devoid of any information which expressly or implicitly communicates that accessing the COPS system for the purposes of preparing a witness statement is prohibited.
12. The evidence of retired Superintendent Goodyear is important. He said that the police are trained to use COPS and other resources when making a statement. He said that no distinction is drawn as to authority to access COPS when making a statement when the police officer is involved in an incident in uniform or not in uniform.
13. The prosecution asks me draw a distinction which would be contrary to that evidence. Superintendent Goodyear went on to say that he had not seen it written or said that a police officer is disentitled to access COPS in making a statement that has its origins in events which occur off-duty as opposed to on-duty. This evidence defeats the argument that the appellant was a private individual at the time of the incident, so therefore he would not a have a legitimate purpose to access the COPS database if it was his intention to make a statement. The argument is contrary to the evidence.
14. The only reference to the important evidence of retired Superintendent Goodyear by the Learned Magistrate was that "the defence called retired Superintendent Goodyear". No other reference was made by the Learned Magistrate in his reasons for judgment. It was in my view important evidence.
15. It was submitted on behalf of the prosecution that the appellant was attached to the Wagga Wagga district and not Albury and therefore was not authorised to access the database. The argument had some attraction to the Learned Magistrate. I am not so attracted. I am not attracted to the argument because the appellant made an affirmation to serve the people of New South Wales, not the people of Wagga Wagga or Albury. Crime and the policing of crime knows no boundaries other than the state boundary.
16. The learned Magistrate took the view that access to the system as a potential witness would devalue any evidence he would give. No doubt that possibility would exist and would be of concern, but it does not follow that such access is unauthorised. It is not unusual for a police officer who is a witness to refresh his or her memory prior to the making of a statement from the COPS database. There is a distinction between authority and evidential value.
17. On review of all of the evidence there is a reasonable possibility that at the time the appellant accessed the COPS system he did so with an attempt to make a statement, as he had been orally requested to do so by Senior Constable Evans, and it is not unusual for police to look at the COPS system to prepare their own statement.
18. Retired Superintendent Goodyear said, "No distinction is drawn as to the authority to access COPS when making a statement when the police officer involved in an incident is in uniform or not in uniform". This is one of those cases where the appellant was not in uniform but was involved in the incident. Superintendent Goodyear went onto say he had not seen it written or said that a police officer is disentitled to access COPS in making a statement that has its origins in events which occurred off‑duty as opposed to on-duty. The origin of this event occurred whilst the officer was off-duty.
19. The prosecution points to the fact that no statement was ever made. There may be a myriad of reasons as to why a statement was not made. The email of Sergeant Longley setting out the antecedence and antisocial behaviour of Jarrah Maksymow, received after access to the COPS system, may have dissuaded the appellant from taking the course of making a statement.
20. I am not satisfied beyond reasonable doubt that the prosecution have established that the appellant's access to the COPS system was unauthorised or that he knew that access was unauthorised.
21. I allow the appeal, I find the appellant not guilty and I dismiss the charge.

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