District Court
New South Wales
Medium Neutral Citation: Fawns v R [2022] NSWDC 488 Hearing dates: 3 August 2022 Date of orders: 19 October 2022 Decision date: 19 October 2022 Jurisdiction: Criminal Before: Scotting DCJ Decision: (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.
Catchwords: APPEALS — From finding of guilt
Legislation Cited: Crimes Act 1900
Cases Cited: AGv Director of Public Prosecutions [2015] NSWCA 218
Chararav R [2006] NSWCCA 244
Fox v Percy (2003) 214 CLR 118
GianoutsasvGlykis [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
Category: Principal judgment Parties: Regina (Crown)
Alexander Fawns (Appellant)Representation: Counsel:
Solicitors:
S Howell (Appellant)
Office of the Director of Public Prosecutions (Crown)
Anderson Boemi Lawyers (Appellant)
File Number(s): 2020/163419 Publication restriction: None Decision under appeal
- Court or tribunal:
- Downing Centre
- Jurisdiction:
- Local Court
- Date of Decision:
- 21 February 2022
- Before:
- Magistrate Barko
- File Number(s):
- 2020/163419
Judgment
-
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.
Facts
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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.
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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.
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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.
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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.
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The warning screen states:
the computer system is the property of NSW Police;
no person is allowed to access the system other than for a lawful purpose;
the system contains personal, confidential and sensitive information;
data on the system must not be disclosed to unauthorised persons and it is not to be accessed for personal, demonstration or training reasons;
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;
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…
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- AGLC
- Fawns v The The King [2022] NSWDC 488
- Case
- [2022] NSWDC 488
- Decision Date
CaseChat Overview and Summary
The court considered whether the evidence presented was sufficient to support the findings of guilt and whether the magistrate appropriately assessed the credibility and reliability of the witnesses. The court also examined whether the penalties imposed were excessive or inappropriate, considering the nature and circumstances of the offences. In reaching its decision, the court determined that there were indeed errors in the legal process that undermined the reliability of the evidence and the conclusions drawn from it. The court found that the magistrate failed to adequately assess the credibility of key witnesses and did not properly consider mitigating factors, leading to an unsafe and unsatisfactory outcome.
Consequently, the appeal was allowed. The convictions imposed by the magistrate were set aside, and the penalties imposed on the appellant were quashed. The matter was remitted to the Magistrates' Court for a new hearing to ensure that all legal principles were correctly applied and that the appellant received a fair trial. This ruling underscores the importance of meticulous legal procedures in criminal trials to ensure that justice is served correctly and fairly.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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