R v Austin - [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.

This is an application for permission to appeal against conviction.
The defendant and applicant, Timothy David Austin, was jointly charged with David Yehoshua Schaaij, with ten counts of abuse of public office contrary to section 251 of the Criminal Law Consolidation Act 1935 (SA). Both the applicant and Mr Schaaij were convicted by majority jury verdict following a trial in the District Court. Only the applicant has complained by way of appeal.
The ten counts each alleged that the applicant, being a public officer, improperly used information that he had gained by virtue of his public office with the intention of securing a benefit for himself or another person. Mr Schaaij was said, in respect of each count, to have aided, abetted, counselled or procured the applicant to commit the particular offence.
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.
One issue before the jury was whether the evidence of this belief or assumption was reasonable. Evidence was led by the prosecution that the information that was conveyed was used for purposes other than the recovery of stolen motor vehicles.
The applicant acknowledged in evidence that he had been aware from the time that he was a police cadet that the information on the police system contained confidential information that could only be used in the course of his police duties and that it could not be released unless he was authorised to do so. The applicant specifically acknowledged his awareness of the content of the General Orders relating to the access and release of police information. He also acknowledged that he had not informed his sergeant or any other police officer of the steps that he was taking in conjunction with the requests of Mr Schaaij. At trial, counsel for the applicant, in the course of his final submissions, submitted inter alia that the prosecution had not proved beyond reasonable doubt that the applicant did not honestly and reasonably believe that he was lawfully entitled to use the information that he accessed.
The only matters raised on the application relevant to the appeal against conviction concern the issues whether a benefit was obtained and intended, and whether the applicant held an honest and reasonable belief that he was entitled to access the information he provided to Mr Schaaij. The applicant complains that the trial Judge’s summing up to the jury on those two issues was inadequate and that on the evidence the prosecution failed to prove those two elements beyond reasonable doubt.
On the application, the issue is whether these grounds are arguable.
Legislation
Section 251 of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)     A public officer who improperly—
(a)     exercises power or influence that the public officer has by virtue of his or her public office; or
(b)     refuses or fails to discharge or perform an official duty or function; or
(c)     uses information that the public officer has gained by virtue of his or her public office,
with the intention of—
(d)     securing a benefit for himself or herself or for another person; or
(e)     causing injury or detriment to another person,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 7 years;
(b)     for an aggravated offence—imprisonment for 10 years.
(2)A former public officer who improperly uses information that he or she gained by virtue of his or her public office with the intention of—
(a)     securing a benefit for himself or herself or for another person; or
(b)     causing injury or detriment to another person,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 7 years;
(b)     for an aggravated offence—imprisonment for 10 years.
Section 238 of the Act is relevant to the consideration of whether section 251 has been contravened. It provides:
(1)For the purposes of this Part, a public officer acts improperly, or a person acts improperly in relation to a public officer or public office, if the officer or person knowingly or recklessly acts contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by public officers of the relevant kind, or by others in relation to public officers or public offices of the relevant kind.
(2)A person will not be taken to have acted improperly for the purposes of this Part unless the person's act was such that in the circumstances of the case the imposition of a criminal sanction is warranted.
(3)Without limiting the effect of subsection (2), a person will not be taken to have acted improperly for the purposes of this Part if—
(a)     the person acted in the honest and reasonable belief that he or she was lawfully entitled to act in the relevant manner; or
(b)     there was lawful authority or a reasonable excuse for the act; or
(c)     the act was of a trivial character and caused no significant detriment to the public interest.
(4)     In this section—
act includes omission or refusal or failure to act;
public officer includes a former public officer.
The summing up
The trial Judge summed up to the jury. In the course of summing up the trial Judge identified the elements of the offence as follows:
1. that the applicant was a public officer;
2. that he gained information by virtue of his position as a public officer;
3.that he used the information that he gained by virtue of his position as a public officer;
4.that in using the information obtained, he intended to secure a benefit for Mr Schaaij with whom he was jointly charged; and
5.that the applicant improperly used the information he obtained within the meaning of section 238 of the Act.
The trial Judge correctly summed up the applicant’s defence. This was that neither he nor Mr Schaaij obtained any benefit from the provision of the information by the applicant to Mr Schaaij and that the applicant honestly and reasonably believed that the provision by him of this information occurred in the course of the performance of his official police duties, thereby rendering his use of the information not improper. The applicant’s defence was founded on the proposition that he believed that the provision of this information to Mr Schaaij assisted in the location and recovery of what he believed to be stolen cars. He claimed that he believed the cars were stolen because the persons in possession of the cars were in default of their repayment obligations in circumstances where the cars were security for their loans. As these people were in default of their repayment obligations under their credit contracts, they had no lawful title to the cars.
At trial the prosecution case was that it was not necessary to prove that any financial benefit had been obtained for the offence to be proved. What had to be proved was an intention on the part of the applicant to secure a benefit for Mr Schaaij. It was sufficient if, as was alleged here, the applicant intended that Mr Schaaij obtain a non‑financial benefit in the course of his employment. The prosecution alleged that Mr Schaaij obtained such a benefit intended by the applicant because Mr Schaaij obtained easy and speedy access to information contained within the police data bases which assisted him in his employment in locating various debtors. In addition, the employer of Mr Schaaij obtained a benefit in that it was able to secure personal details of the debtors without incurring the expense or time involved in making FOI requests for such information. It is implicit in the jury’s verdict that they were satisfied beyond reasonable doubt that the applicant intended that Mr Schaaij benefit from the provision of the information obtained by the applicant by accessing the police data bases. This inference was open to the jury and was not unreasonable. On our review of the evidence, the inference was overwhelming.
Turning to the issue of whether the prosecution had proved that the applicant had acted improperly within the meaning of section 238 of the Criminal Law Consolidation Act, the trial Judge directed the jury that they had to be satisfied of the following matters:
1.that the applicant acted contrary to standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by police officers;
2.that the applicant knew he was acting improperly or was reckless in acting improperly;
3.that, having regard to the circumstances in his position, the improper conduct of the applicant warranted the imposition of a criminal sanction;
4.that the applicant did not act in the honest and reasonable belief that he was lawfully entitled to use the information;
5.that the applicant did not have lawful authority or a reasonable excuse for accessing and disseminating the information; and
6.that the applicant’s conduct was not trivial and could not be said to have caused no significant detriment to the public interest.
In this context the trial Judge directed the jury that they had to be satisfied that the prosecution had proved these matters beyond reasonable doubt. The trial Judge then set out the applicant’s defence, that while he understood he could only access and use information contained in the police data bases for official police business, he honestly and reasonably believed that in providing this information to Mr Schaaij he was doing just that.
The trial Judge directed the jury that, even if they concluded that the applicant did not hold such an honest and reasonable belief, they could not convict unless they were satisfied that the conduct of the applicant in accessing and releasing this information was conduct sufficiently serious to warrant a criminal penalty. He directed the jury that this was a matter they had to assess by reference to the circumstances of the case and the responsibilities of police officers, the public trust reposed in those officers and the nature and extent of any departure from those standards.
There was no error in the trial Judge’s summing up. He correctly identified the elements of the offence with which the applicant had been charged. He fairly summarised the evidence and the prosecution and defence cases. In his written submission, the applicant emphasised that it had not been established beyond reasonable doubt that he did not have an honest and reasonable belief that it was lawful to access and use the information in the way that he did. In the course of oral submissions, he again placed emphasis on this aspect of the matter. When pressed to support this submission, the applicant was unable to draw attention to any suggested error on the part of the Judge in his summing up. His submission was that the Judge had not placed enough emphasis on the fact that the applicant could have been dealt with in another way instead of being the subject of criminal charges.
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 Mr Schaaij the information obtained from the police data bases. This inference was open to the jury on the evidence. On our review of the evidence, there was a strong case for the making of this finding.
The applicant supported his application by forwarding to the Court a copy of an opinion obtained from Queen’s Counsel advising as to his prospects of a successful appeal. In that written opinion, counsel concluded that there were no grounds to complain about the legal directions given by the Judge. Some criticism was levied at the way in which some of the directions were expressed. Notwithstanding these criticisms, counsel concluded that the prospects of success on these matters were low. Counsel concluded by expressing the following view, “regrettably for Mr Austin I cannot recommend that there are any good prospects for an appeal in this matter”.
A Judge of this Court considered the applicant’s application for permission to appeal. The Judge concluded that she was not persuaded that there had been any point identified by the application which would give rise to any reasonably arguable ground of appeal.
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.