Alexander Clancy v BRENDAN O'HEARN
[2011] ACTSC 117
ALEXANDER CLANCY v BRENDAN O’HEARN
[2011] ACTSC 117 (22 July 2011)
APPEAL – appeal from ACT Magistrates Court – appeal against conviction – whether conviction unsafe or unsatisfactory – functions of an appellate court on review – whether open to magistrate to make the findings that she did – appeal allowed in respect of one charge otherwise appeal dismissed.
Crimes Act 1914 (Cth) s 19B
M v The Queen (1994) 181 CLR 487
Ratten v The Queen (1974) 131 CLR 510
SKA v The Queen (2011) 276 ALR 423
Fleming v The Queen (1998) 197 CLR 250
Fox v Percy (2003) 214 CLR 118
Devries v Australian National Railways Commission (1993) 177 CLR 472
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 40 of 2009
Judges: Gray J
Date: 22 July 2011
IN THE SUPREME COURT OF THE )
) No. SCA 40 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: ALEXANDER CLANCY
Appellant
AND: BRENDAN O’HEARN
Respondent
ORDER
Judges: Gray J
Date: 22 July 2011
Place: Canberra
THE COURT ORDERS THAT:
I allow the appeal in respect of the charge of disclosing information to P and set aside the conviction and sentence on that charge (CC 08/40583).
I dismiss the appeal against the conviction and sentence in respect of each of the other charges (CC 08/40577 – 40581, CC 08/40582).
IN THE SUPREME COURT OF THE )
) No. SCA 40 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: ALEXANDER CLANCY
Appellant
AND: BRENDAN O’HEARN
Respondent
Judges: Gray J
Date: 22 July 2011
Place: Canberra
REASONS FOR JUDGMENT
Alexander John Clancy (the appellant) appeals from his conviction and sentence in the ACT Magistrates Court in respect of 5 charges alleging unauthorised access to restricted data and 2 charges of disclosure of information by a Commonwealth officer. On each count the appellant was convicted and fined $500.
There is a non publication order that has been made in respect of the identity of the person the subject of the information that was allegedly accessed and disclosed. Presumably to give effect to that order the magistrate adopted the convention of referring to certain of the prosecution witnesses by their initials. In this judgment I follow that convention.
The original ground of appeal claimed that the magistrate failed “to take into account all relevant matters” and then listed 15 such instances. That ground could never be properly sustained as each of the matters was at the least adverted to by the magistrate in her reasons. When the matter came on for hearing before me Mr Purnell SC, who appeared for the appellant, sought and was granted leave by consent to amend the grounds of appeal and to substitute a ground of appeal that the verdicts were in all the circumstances unsafe and unsatisfactory. After hearing certain of the appellant’s submissions I was left with no alternative but to adjourn the matter and seek written submissions from the parties to address this amended ground. Those submissions were provided but unfortunately not drawn to my attention until a short while ago, hence the delay in delivering this judgment.
The appellate courts role
Where a court is called upon an appeal to determine whether a conviction is unsafe or unsatisfactory it is a recognition that there is evidence upon which an accused person might be convicted. The approach that the appeal court should take has been authoritatively determined by the High Court in M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see Whitehorn v The Queen (1983), 152 CLR at p.686; Chamberlain v The Queen [No. 2] (1984), 153 CLR, at p.532; Knight v The Queen (1992), 175 CLR 495, at pp. 504-505, 511.) But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen [No.2 ] (1984), 153 CLR, at p.621.)
The majority then discussed a statement made by Barwick CJ in Ratten v The Queen (1974) 131 CLR at 516 and went on to say at 494 - 495:
But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen[No.2] (1984), 153 CLR, at pp. 618-619; Chidiac v The Queen (1991), 171 CLR 432, at pp 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (1991), 171 CLR, at pp. 443, 451, 458, 461-462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
This approach was recently affirmed by French CJ, Gummow and Keifel JJ in SKA v The Queen (2011) 276 ALR 423.
Similar considerations apply to the functions of an appellate court in respect of a trial by judge alone. In that case the court has the benefit of the trial judge’s reasons (Fleming v The Queen (1998) 197 CLR 250 at 267 [45] per Gleeson CJ, McHugh Gummow, Kirby and Callinan JJ, see also Fox v Percy (2003) 214 CLR 118 at 126-129 [24]–[31] per Gleeson CJ, Gummow, and Kirby JJ).
Background Facts
At all relevant times the appellant was a police officer who completed his time as a probationary constable in September 2007. He met L, a young woman, in April 2007. Y was another young man who had a relationship with L from May 2005. The appellant and Y never met.
The appellant developed an interest in L. On 22 June 2007 and 24 July 2007 he accessed the AFP Database relating to her. On 28 July 2007, 23 August 2007 and 17 September 2007 he accessed that database in respect of Y. Those occasions of access are the subject of the 5 charges of unauthorised access. The fact of the access is not in dispute, the question of whether it was authorised is.
The charges of disclosure of information involve material on the database relating to Y when he was 11 years old concerning allegations of a sexual nature concerning his sister. It was alleged the appellant disclosed information concerning these allegations to C, a former girlfriend and it is alleged that he also disclosed the information to L’s older sister P.
The credibility findings
The major thrust of the submissions put by Mr Purnell related to the alleged disclosures to C and P. It was put that L’s evidence so undermined the credibility and reliance that might be placed on C and P’s evidence that the magistrate must have erred in accepting that evidence or at least entertained a reasonable doubt about accepting it.
It can be readily seen from the magistrate’s reasons that such an assessment is based upon the magistrate’s acceptance of the evidence given by C and P and the reservations that she expressed about the evidence of L. However, the assessments that she made depend to a very great extent on how each of those witnesses presented.
A further obstacle that Mr Purnell faced with respect to his submission on these aspects is the rejection by the magistrate of the evidence given by the appellant. Again it was the magistrate who saw and heard the appellant’s evidence and had the opportunity of seeing him give that evidence. I consider that I should pay defence to the magistrate’s views about the evidence given by each of the witnesses in question. I must bear in mind her assessment of the witnesses in determining whether there is a significant possibility that an innocent person has been convicted.
The charges concerning unauthorised access
There was never any contest about the appellant accessing the database in respect of L and Y. What was in contest was whether the access was authorised.
The magistrate summarised the prosecution evidence of Superintendant Jamieson who was responsible for supervising the appellant in the relevant period. Her Honour’s findings were:
Superintendent Jamieson reviewed the records relating to every job the defendant attended between 1 July 2007 and 1 October 2007. There was nothing in the defendant’s assigned duties that required him to access the computer records relating to L or Y. The defendant was not given permission to access those records for any other purpose. Neither of the alerts placed by the defendant on Y’s record on 28 July 2007 (‘may be violent’) and 23 August 2007 (“may carry weapons, may have knives concealed in car”) were linked to a current case.
The defendant was not given permission to disclose information he located on the AFP records about Y to anyone outside the AFP. Nor would he have been given that permission had he asked for it.
In answer to the issue of the authorisation of that access the appellant gave evidence that the first access to the record of L was because the appellant wished to see if L was being investigated by the AFP, in circumstances where the appellant had previously suffered professional embarrassment when acquaintances were the subject of criminal investigation.
He said that the second access to the record of L was because he had a poor memory and had forgotten details gained on the occasion of the first access.
As to the first access to the two separate distinct records of Y the appellant said that they were because the appellant put an ‘alert’ on the record to assist police in future dealings with Y and that he needed to access both records in order to confirm that he was making the entries onto the current record. The appellant also said that on this occasion he linked the two records electronically as being related.
The appellant said that the second access to the two separate and distinct records of Y were because the appellant put another ‘alert’ on the record to assist police in future dealings with Y and because he needed to confirm that the linkage between the records had been processed correctly because the system had ‘bugs’.
As to the third access to the two separate and distinct records of Y the appellant said that was because the appellant said that he had forgotten details gained on the occasion of the earlier access and because he needed to confirm that the linkage between the records had been processed correctly.
It is not without significance that Superintendant Jamieson was not cross examined about whether the reasons for the access put forward by the appellant in respect of information concerning L would justify his actions in doing so. Superintendant Jamieson also pointed out that the alerts placed on Y’s record were not linked to a current case or supported by an information report.
The magistrate’s finding as to the appellant’s reason for first accessing L’s file was as follows:
The defendant maintained that there was no conflict of interest in him originally accessing L’s file:
“[B]ecause my reasons behind accessing her file was to protect the integrity (sic) and also to make sure I didn’t run into a conflict of interest and therefore have to run into a – another contact incident report” (T97 lines 6-9).
This explanation invites disbelief. From his own evidence as to what constitutes a conflict of interest the defendant knew that it was inappropriate at the very least for him to be involved in any matter which related to L. In any event there was no current investigation which related to her and nor was there anything to suggest there might be. I do not accept that the defendant accessed L’s filed simply to see if she was the subject of an unspecified investigation. In any event this reason would not clothe his conduct with even the aura of authorisation as that term is used in s 478.1 of the Criminal Code (Cth).
As to the second occasion the magistrate’s finding was:
I also reject the defendant’s explanation as to why he accessed L’s file on 24 July 2007 after already looking at it less than a month before. Bearing in mind his feelings for L it is highly unlikely that he would be unable to remember what he had seen on the first occasion. In any event, the second access was no more authorised than the first.
I have no reason to doubt that these findings were well open to be made by the magistrate. They also appear to be a realistic assessment of the evidence given by the appellant on this aspect.
As far as the access to the database concerning Y is concerned the magistrate made the following findings:
The defendant said that when he accessed Y’s police file (28 July and 23 August 2007) and placed alerts on that filed he believed that he was authorised to do so. His evidence was:
“I’d received information from ... a mutual associate, Eric who was a friend of mine, an associate of Y’s, who had told me certain information ... in relation to Y’s hostility towards police, and his carrying of either a baseball bat or a shopping trolley pole in his vehicle for, I believe the wording was something along the lines of his own protection. These are points which I believe could be useful to a police officer if they’re confronted with Y, be it as a witness, as a victim, as a possible defendant, and I hadn’t had – I’d never met the person and so just following up information I’d received from the public, which I believed to be plausible, I placed an alert on – I placed two alerts, rather, on Y’s existing profile within the AFP PROMIS system” (T88 lines 12-23).
He did not think to gain any verification of the information he received nor did he speak to anyone else in his team. He did not see it as a conflict of interest that he was placing an alert on Y’s file at a time when he had a crush on L and was aware of her long relationship with Y. He said he did not regard this an inappropriate as the alert system was only for internal police use. The defendant maintained that the alerts on Y’s entity were placed on the system before he developed a crush on L. The emails prove that this was not so.
The defendant’s explanation for accessing Y’s file on the third occasion (17 September 2007) was:
“I believe that would have been – there was (sic) two existing entities of a Y on the police file. I will admit my memory is not exactly the details (sic) but one of them I believe was under a Y, one was under a ‘y’, one may have had his middle name in it. One had certain details such as his date of birth, another didn’t. There was enough similarities on the main screens of the PROMIS entities to show that it could be one and the same person. Multiple person entities can be created in PROMIS very easily due to a user error or laziness, or mis-search. I believed it was the same person, but I wasn’t confident that it – I couldn’t prove it, so I – there was at least one entry or one file attached to both entities, so I opened them up and up the top of the police log which we have to type up for any job that we attend it’s common standard practice to place all the defendant witnesses, etcetera, details at the top. Those details on both files were the same, therefore I believed that it was the same person and I linked the two entities so they became one and – in an effort of PROMIS admin, to make it easier for other police officers” (t88 lines 27-43).
The defendant further elaborated that on 28 July 2007 he had linked two PROMIS person entities together. On 17 September 2007 he looked again to ensure that he “had done it and ... the system had recognised the link”.
In respect of the foregoing matters the magistrate concluded:
These explanations are also inherently incredible and I reject the defendant’s evidence. There is no explanation why the defendant would make the alert entries on two separate occasions. Further, nothing in his evidence suggests “Eric” ever told him that Y “may carry knives concealed in car”. My firm view is that the alerts were placed by the defendant solely to create mischief for Y should he have an encounter with the police. They had nothing to do with a genuine concern for the safety of his colleagues no matter how much the defendant may have subsequently tried to convince himself otherwise.
I am certainly not able to say, in light of the matters referred to by the magistrate, that her finding of the appellant’s explanations being “inherently incredible” was not fairly open to her. There is no inconsistency between this finding and the matters that she set out arising from the appellant’s presentation and his evidence before her as she assessed it. Mr Purnell’s submissions in respect of this aspect really only posed the rhetorical question as to why the appellant’s explanation should not have been accepted by the magistrate. She did not, and having regard to her hearing and seeing the appellant give his evidence I am not satisfied that any ground exists for concluding that she failed to use or palpably misused her advantage in that respect (c.f. Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479).
The charges concerning unauthorised disclosure
On the charge concerning disclosure to C, it was put on behalf of the appellant that her evidence was so lacking in credibility that it should not be relied upon to support the conviction on this charge.
Her evidence as to the occasion which is the subject of the charge was:
You’ve said a couple of conversations, can you remember any specific conversations that you had with [the appellant]?--- Yes, the main conversation was when we were in a car driving – he was driving me home and he told me that he had looked up information about [Y] and – on the police records and told me what was on them.
Okay, we might break that down a bit. Do you recall when that conversation occurred?---Probably about August. In 2007.
Thank you. Do you recall where the conversation took place?---In his car.
Were there any other persons in the car?---No.
Do you recall how the topic of conversation came up?---Not really, probably through talking about [L].
What did [the appellant] say to you during that conversation?---That he had looked up Y on the police records and told me what he’d found on that.
Do you recall that as verbatim or is that works to the effect of?---(No audible reply).
What you said that he said?---I just what he said. Not word for word. I don’t remember word for word.
Did he tell you?---
MR PURNELL: I object to that. It’s a leading question by definition, your Honour, “Did he tell you”.
MS BAKER-GOLDSMITH: I do withdraw that.
What details did he tell you about the police records he said he’d accessed?---He said that he wasn’t allowed – wasn’t supposed to tell me what he’d seen and what he had seen was that there was an incident between [Y] and his younger sister that was probably something to do with sexual assault or some injury, and that it – there was a medical report that said it couldn’t be concluded that the girl hadn’t injured herself, and that the grandmother possibly wanted to withdraw the allegation or whatever, but keep the statement on the record, but not pursue it.
Do you recall any further details, [C]?---I don’t think so. I think there was something about a bottle or an object, but I’m not sure exactly what.
She also referred to a later conversation when she, the appellant and L were in a car park near a fast food outlet. She said about that conversation “and he had told her the same thing that he’d told me”.
L was called by the prosecution and gave evidence that she was aware in general of the allegations about Y that form the subject of the charge. She said that her knowledge in that regard came from Y not the appellant. Her evidence implied that C had a motive to cause harm to the appellant because of the circumstances in which her relationship with the appellant and with L had ended.
There was also a clear conflict between her evidence as to what C had said was the later conversation between her, the appellant and C in the car park (near a fast food outlet). L’s account of what was said in that conversation was:
You said that you brought it up with [the appellant]. Do you recall when you did that?---Yes, it was late-2007 in the Hawker KFC car park. Yes, we were sitting – we were sitting there talking about [Y] and I sort of brought it up in defence of [Y].
The conversation occurred in the car?---Yes.
Whose car?---My car.
Who was in the car?---[C] and [the appellant]
...
And you say you brought it up?---In – in defence of [Y], yes.
How did the topic of [Y] come up in the conversation?---Me and [the appellant] were frequently discussing [Y]. [The appellant] didn’t think it was wise that [Y] was in my life and he was basically telling me that he didn’t think very much of [Y] at all, and I said that [Y] had never ever been in trouble with the law and then I took a step back on myself and went, “Oh, but he has when he was a child, but that was – that was all false. Like, [Y] was innocent”.
The account you just gave are those exact words?---Close – close to – I may have said that he – it involved his sister and it had involved police and a female member of the family, but I don’t know word for word.
As well as you can recall, what details did you tell [the appellant]?---That – that [Y] had, as a child, been involved in some allegations that a female member of his sister’s family, either the mother or the grandmother, had accused [Y] of something to do with his – his younger- one of his younger sisters, and that it had all been put aside, and that [Y] was never – well, I don’t think – I don’t know if children can get charged, but never actually carried through.
Was there a particular reason why the topic of involvement with police came up in the conversation?---Just because [the appellant] just kept stressing that he didn’t think that [Y] was good and he thought that [Y] was trouble for me.
...
What did you say in response to that, hearing those details?---In that particular time I was defending [Y] just saying that he was a good guy. He’d just – he occasionally did some bad things.
Did [the appellant] say anything in response to hearing those details?---Just that he was – that he thought I was wrong.
Curiously the prosecution put forward L as a generally credible witness. The magistrate took the view that she should be “guarded” as to the weight she should give to her evidence. There is material upon which she could come to that conclusion. Indeed, her observations of L in giving evidence appears to be a matter which could well affect her assessment of it. However, what did influence the magistrate’s assessment of L’s evidence is the lack of detail that she was able to give about the allegations.
It follows that L could not have been the source of details that C was given concerning things such as “younger sister”, “sexual assault”, “some inquiry”, “medical report” and the “grandmother wanting to withdraw the allegation” which detail could only have come from the police database. That indeed was the magistrate’s finding:
I am satisfied that both the conversation with the defendant in his motor vehicle, and the discussion in the car park with the defendant and L, occurred as described by C. I am satisfied that L and P never knew the very specific detail referred to by C and the only source from which C could have gleaned that information was the defendant. The only source available to him in relation to that was the AFPnet and PROMIS systems which he was able to access because of his position as a police officer but in circumstances where he had no authority to do so.
The second charge of unlawful disclosure stands on somewhat different footing. That relies upon the evidence of L’s older sister P. P’s evidence in respect of that charge was:
Did you ever have a conversation with [the appellant] in relation to things in [Y]’s past?---Yes.
Do you recall when that conversation occurred?---I don’t remember exactly when the conversation was. If I was to have a guess I would say it would be around October or September of 2007. Sorry, I can’t remember what year we’re up to.
What did [the appellant] say to you during that conversation?---That particular conversation I couldn’t exactly say what he’s – he’s told me. We did have quite a few conversations about him, so it would be hard to pinpoint what that particular one was about.
[P], I’m asking you questions in relation to a conversation where the topic was [Y]’s past?---We had had conversations previously about his history. I wasn’t exactly trustful of him and was concerned.
Sorry, trustful of him, you mean [Y]?---Referring to [Y]. I didn’t trust him, I didn’t agree with the relationship that my younger sister was in with him, and was quite protective. I had been told that if I knew what was in his past, what was on his police record – and I use the term police record because that’s something I’m familiar with, I don’t actually know what it’s called – I was told that if I knew what was on his police record I would want L as far away from him as possible.
And who told you that?---That was told to me by [the appellant].
Did [the appellant] provide any further detail in support of that statement?---He told me that it was something to do with his family, something to do with a juvenile record, and something to do with his younger sister. And that’s the only details I was told.
Her evidence needs to be considered in light of the following exchanges in cross examination:
I’m suggesting to you that you suspected that the information came from a police file, but [the appellant] never said to you that he got information from a police file?---I don’t think he said exactly those words, no.
There then followed confused and confusing (at least to me) questions and answers concerning whether P suspected Y’s troubled past before she had the conversation with the appellant. In that regard previous statements and proofing notes were put to P to demonstrate inconsistency. The cross examination concluded with the somewhat unhelpful questions:
Are you serious?---I’m not embarrassed by my recollection, I believe it’s human.
And being human you accept that your recollection could be completely faulty in relation to some matters?---Completely fault in some, yes.
Yes. Faulty in relation to others?---Yes.
Other matters. And non-existent in relation to other attempts to recall, you accept that?---Yes.
Ultimately the issue is whether the appellant disclosed to P a fact which had come into his knowledge by virtue of him being a Commonwealth officer. In view of P’s uncertainty as to the timing of her suspicions about Y and the lack of detail in the information that she says was conveyed, it would seem to me to be dangerous to rely upon her evidence to establish that element of the offence. There is nothing in P’s evidence which suggests the sort of detail that L for her part claimed as having been conveyed to her. P’s evidence contains an assertion that the appellant obtained any information that he discussed with her from police records but on what she said that was an assumption she made. P’s uncertainty on this aspect is enough to require her evidence to be viewed with considerable caution as to whether it can make out the charge.
The magistrate made these findings about P’s evidence:
While [P’s] credibility was damaged by the contradictory nature of some of her evidence and I am cautious in accepting it, her evidence remained unshaken that she did not hear the allegations about Y from her sister. I accept her evidence on this point. I also accept that there was a conversation between her and the [appellant] along the lines she testified. The [appellant] did not directly dispute this.
The magistrate did not go on to specifically consider whether the conversation between P and the appellant “along the lines she testified” supported disclosure to her of facts which had come into the appellant’s possession by virtue of him being a Commonwealth officer. Considering her evidence as a whole and the concessions that she made in cross examination I consider that her evidence lacks sufficient probative force to justify that element of the offence being made out. I consider that the conviction on this charge is unsafe or unsatisfactory and should be set aside.
Penalty
The dismissal of the charge in respect of disclosure to P would seem to have little effect on the overall disposition of the matter. Mr Purnell said in his written submissions:
We say that if convicted, what the appellant was doing was in a competitive context for [L]’s affections, trying to protect her and other police (by alerts) from [Y] who clearly on the evidence is no angel. In those circumstances, prior good character and the “end” of his Police career warrant a “no conviction” recording.
The magistrate heard submissions as to her acting under s 19B of the Crimes Act 1914 (Cth) and not recording a conviction in the circumstances before her. Section 19B (1) provides:
Discharge of offenders without proceeding to conviction
(1) Where:
(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that is the inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (in any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and
(iii)that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
The magistrate found that none of the factors upon which she was addressed would justify not recording a conviction and not imposing a penalty. She noted the breach of trust implicit in the offences and the appellants lack of appreciation of the implications of the conduct that she had found proved. She also noted that an element of general deterrence was called for. She had regard to the appellant being of good character and that the appellant’s personal reasons for committing the offence were not a sufficient extenuating circumstance. She also noted the depressive condition that the appellant was said to suffer from and legal and financial consequences of a conviction being recorded. She regarded the recording of a conviction in the circumstances of this case as a significant penalty in itself.
I do not consider that Mr Purnell has demonstrated any error in the magistrate’s approach. Notwithstanding the appellant’s previous good character and the consequences upon him of the fact of a conviction the offences were treated as serious and called for an appropriate response by way of punishment.
I allow the appeal in respect of the charge of disclosing information to P and set aside the conviction and sentence on that charge (CC 08/40583).
I dismiss the appeal against the conviction and sentence in respect of each of the other charges (CC 08/40577 – 40581, CC 08/40582).
I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 22 July 2011
Counsel for the Appellant: Mr F.J Purnell SC
Solicitor for the Appellant: Porters Lawyers
Counsel for the Respondent: Ms S Baker-Goldsmith
Solicitor for the Respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 5 March 2010
Date of judgment: 22 July 2011
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