Fawns v The The King

Case [2022] NSWDC 488

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

Crimes (Appeal and Review) Act 2001

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

Sharrock v R [2019] NSWDC 850

Category:Principal judgment
Parties: Regina (Crown)
Alexander Fawns (Appellant)
Representation:

Counsel:
S Howell (Appellant)

Solicitors:
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

  1. 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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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…

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Details
AGLC
Fawns v The The King [2022] NSWDC 488
Case
[2022] NSWDC 488
Decision Date

CaseChat Overview and Summary

In the case of Fawns v The King, the appellant was convicted in the Magistrates' Court of various criminal offences, including charges of assault occasioning actual bodily harm, deprivation of liberty, and causing injury by reckless conduct. The appellant appealed to the higher court against both his convictions and the penalties imposed, contending that there were errors in the legal process that led to the magistrate's findings. The central issue before the court was whether the magistrate erred in law, which resulted in an unsafe and unsatisfactory conclusion regarding the appellant's guilt.

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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