R v Austin

Case [2013] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v AUSTIN

[2013] SASCFC 133

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Blue and The Honourable Justice Stanley)

9 December 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Application for permission to appeal against conviction.

The applicant was convicted by majority jury verdict on 3 October 2012 of 10 counts of abuse of public office contrary to s 251 of the Criminal Law Consolidation Act 1935 (SA).

The offending was alleged to have occurred when the applicant was a serving member of SA Police.  The applicant provided to his brother-in-law confidential information that he obtained by accessing computer data bases available to police officers.  His brother-in-law was employed by a debt collection and commercial investigation agency.  The purpose of providing this information was to assist the applicant's brother-in-law in his employment duties by providing information concerning the location of persons allegedly in default of obligations under loan contracts with finance providers, often where their motor vehicles were security for those loans.

Whether the prosecution proved that a benefit was obtained by the provision of the information. Whether the applicant held an honest and reasonable belief that his provision of the information to his brother-in-law occurred in the course of the performance of his official police duties.  Whether any arguable grounds of appeal have been made out.

Held (refusing permission):

1.  There was no error in the Judge's summing up.  The Judge correctly identified the elements of the offence with which the applicant had been charged.  The Judge fairly summarised the evidence, the prosecution case and the defence case (at [18]-[19], [21]-[24]).

2.  It is implicit in the jury's verdict that they were satisfied beyond reasonable doubt that the applicant intended to secure a benefit for his brother-in-law.  On an independent review of the evidence, this inference was overwhelming (at [20]).

3.  It is implicit in the jury's verdict that they rejected as a reasonable possibility that the applicant held an honest and reasonable belief that he had lawful authority to access and provide to his brother-in-law the information obtained from the police data bases.  On an independent review of the evidence, there was a strong case for making this finding (at [25]).

4.  The applicant has not made out any arguable ground of appeal (at [28]).

5.  The time for bringing the application for permission to appeal against conviction is extended to 28 August 2013 (at [29]).

6.  Permission to appeal is refused (at [29]).

Criminal Law Consolidation Act 1935 (SA) s 238, s 251; Motor Vehicles Act 1959 (SA) , referred to.

WORDS AND PHRASES CONSIDERED/DEFINED

"Honest and reasonable belief",
"benefit"

R v AUSTIN
[2013] SASCFC 133

Court of Criminal Appeal:       Gray, Blue and Stanley JJ

THE COURT.

  1. This is an application for permission to appeal against…

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AGLC
R v Austin [2013] SASCFC 133
Case
[2013] SASCFC 133
Decision Date

CaseChat Overview and Summary

The applicant, a serving police officer, sought leave to appeal his conviction for offences alleged to have occurred between April 2007 and January 2008. The dispute centred on the applicant's actions in accessing confidential police databases and providing information to his brother-in-law, Mr Schaaij, who was employed by a debt collection agency. The prosecution contended that the applicant's conduct breached police General Orders by providing information to a third party, which assisted Mr Schaaij in locating debtors. The applicant admitted accessing the databases and providing the information but maintained he acted honestly and reasonably, believing his actions were part of his official duties in recovering stolen motor vehicles, and that he was permitted to use the information under guidelines related to the *Motor Vehicles Act 1959* (SA).

The Court of Criminal Appeal was required to determine whether the applicant had an arguable ground of appeal against his conviction. Specifically, the court considered whether the applicant's defence of honest and reasonable belief was adequately addressed at trial and whether the trial judge's summing up was fair and balanced in relation to this defence. The court also had to consider the application for an extension of time to file the appeal, which was substantially out of time.

The court found that the issue of honest and reasonable belief was thoroughly explored during the trial, including in counsel's final submissions and the judge's summing up. Upon reviewing the summing up, the court concluded that it was both fair and balanced, and that appropriate directions had been given to the jury. Consequently, the court determined that the applicant had not established any arguable ground of appeal.

The Court of Criminal Appeal extended the time for the applicant to bring his application for leave to appeal to 28 August 2013. However, the court refused permission to appeal.

Orders

Orders of the court

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Background

Background to the litigation

The application for permission to appeal was filed on 28 August 2013. It was substantially out of time. On the hearing of the application before the Court of Criminal Appeal, there was no opposition by the Director of Public Prosecutions to a grant of an extension of time in which to make the application, but the application for permission to appeal against conviction was opposed. The facts The offending is alleged to have occurred between 22 April 2007 and 18 January 2008. At the time the applicant was a serving member of SA Police based at the Adelaide Traffic Patrol as a traffic police officer. He had been a police officer for approximately 10 years. Mr Schaaij was his brother-in-law, the applicant being married to Mr Schaaij’s sister. Mr Schaaij was employed as a “skip locator” by National Recoveries & Investigations, a debt collection and commercial investigation agency. That company provided recovery services to a number of clients including credit providers and insurance companies. Those clients engaged National Recoveries & Investigations to locate debtors for the purposes of debt collection and repossession. Mr Schaaij’s duties included the location of debtors. Mr Schaaij requested the applicant to provide him with information, including the personal details of debtors, so that he could locate those debtors in the course of his employment with National Recoveries & Investigations. The applicant obtained the requested information by accessing confidential electronic databases of the South Australian Police Department and, on occasions, by requesting the search of interstate police databases where relevant information was stored. Evidence led by the prosecution included email correspondence between Mr Schaaij and the applicant, together with police printouts said to have been accessed by the applicant. National Recoveries & Investigations’ reports and logs detailing work undertaken on particular files were also tendered. It was the prosecution case that there was overwhelming evidence of the applicant obtaining the relevant information and providing it to Mr Schaaij. It was also the prosecution case that the applicant’s conduct was directly in breach of General Orders that precluded the applicant from providing the information to third parties. The purpose of providing this information to Mr Schaaij was to assist him in his employment duties to locate persons allegedly in default of obligations under loan contracts with finance providers. The applicant gave evidence in his defence in which he admitted having accessed the police databases to gain information that Mr Schaaij was seeking and passing that information on to Mr Schaaij. This aspect of the prosecution case was not in dispute. The applicant’s defence was that he did not intend to secure a benefit for Mr Schaaij, did not use the information improperly and honestly and reasonably believed that what he was doing was part of his official police duties in assisting in the location and recovery of what he believed to be stolen motor vehicles. In this respect, he referred to motor vehicles retained by persons who had not paid their repayments to their credit provider. In particular, the applicant claimed that he was not acting improperly, as he honestly and reasonably believed that he was permitted under guidelines made pursuant to the Motor Vehicles Act 1959 (SA) to use the confidential information that he had gained from the police databases so that his brother-in-law could recover the allegedly stolen motor vehicles. The applicant gave evidence that it was his belief or assumption that whenever Mr Schaaij asked him to provide information on a certain name or a particular registration number of a motor vehicle, Mr Schaaij was looking for a person in order to recover a stolen motor vehicle.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant has not made out any arguable ground of appeal. The issue of honest and reasonable belief was fully canvassed in the trial, in the final submissions of counsel and by the Judge in summing up. Our review of the summing up allows the conclusion that it was both fair and balanced. Appropriate directions were given. Conclusion We extend the time for bringing this application to 28 August 2013. We refuse permission to appeal.

Ratio Decidendi

Legal Principle Established

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