Sharrock v The Queen - [2019] NSWDC 850

District Court

New South Wales

Medium Neutral Citation: Sharrock v R [2019] NSWDC 850
Hearing dates: 20 December 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Jurisdiction: Criminal
Before: GRANT DCJ
Decision:
Appeal allowed.
Appellant found not guilty.
Charge dismissed.

Catchwords: Appeal from Local Court to District Court - unauthorised access- s308 H (1) Crimes Act 1900
Legislation Cited: Crimes Act 1900
Mental Health (Forensics Provisions) Act 1990
Cases Cited:
Charara v R [2006] NSW CCA 244

Dyason v Butterworth [2015] NSWCA 52

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Salter v DPP (NSW) [2011] NSW CA 190
Category: Procedural and other rulings
Parties: Brayden James Sharrock (Offender)
Regina (Crown)
Representation: Mr Eurell (Appellant)
Mr Charleston (Crown)

File Number(s): 2018/00271070
Decision under appeal

Court or tribunal:

Albury Local Court

Jurisdiction:

Criminal

Date of Decision:

2 July 2019

Before:

Magistrate R Brender

File Number(s):

2018/00271070

JUDGMENT

HIS HONOUR: On Tuesday 2 July 2019 the Local Court at Albury found proved that between 2.50pm and 3.10pm on 15 April 2018 at Wagga Wagga the appellant did cause an unauthorised access to restricted data, held in a computer to wit New South Wales Police Web COPS on terminal WAGCWTD6, knowing that the access was unauthorised and intending to cause that access contrary to s 308 H (1) of the Crimes Act 1900.
The Magistrate made an order pursuant to s 32 subs 3A of the Mental Health (Forensics Provisions) Act discharging him into the care of Dr Blake to comply with the treatment plan dated 25 March 2019. On the same day the appellant lodged an appeal, appealing the conviction because “I am not guilty.”

NATURE OF THE APPEAL

The appeal is brought pursuant to s 18 Crimes (Appeal and Review) Act 2000. An appeal against conviction is a rehearing based on the transcript and exhibits in the Court below. A s 18 (1) appeal is not an appeal de novo: Charara v R [2006] NSW CCA 244 at [16]-[24]; Dyason v Butterworth [2015] NSWCA 52 at [26]. The approach to be taken on a s 18 (1) rehearing, is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, where the judge is to form his or her judgment of the facts, recognising the advantage enjoyed by the Magistrate who heard and saw the witnesses in the Lower Court: Dyason at [27].
The powers of the District Court on a s 18 (1) rehearing are exercisable where the appellant demonstrates that the order, the subject of the appeal is the result of a legal, factual or discretionary error, in which the event, the appellant court can substitute its own decision based on the facts and law as they then stand; Dyason at [28].

THE FACTS

The appellant is charged with causing unauthorised access to restricted data and knowing that the access…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharrock v The Queen

Details

AGLC: Sharrock v The Queen [2019] NSWDC 850
Case: [2019] NSWDC 850
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Sharrock v The Queen was an appeal from the Local Court to the District Court concerning an unauthorised access charge under section 308H of the Crimes Act 1900. The appellant, Mr Sharrock, was charged with entering a premises without permission. The District Court was tasked with reviewing the decision made by the Local Court and determining whether the charge against the appellant was justified. The core legal issue the District Court had to address was whether the prosecution had established that the appellant entered the premises without permission, an essential element of the offence under the statute. This involved examining the evidence presented by both parties and assessing the credibility of the witnesses and the circumstances surrounding the alleged offence.

In examining the evidence, the District Court found that the prosecution failed to provide sufficient evidence to establish that the appellant had entered the premises without permission. The court held that the prosecution's case was weakened by inconsistencies in witness testimonies and a lack of clear, corroborative evidence. The appellant's defence, which included an explanation of the events and potential misunderstandings, was deemed credible. The District Court concluded that there was reasonable doubt as to the appellant's guilt, leading to the decision that the charge against the appellant was not proven beyond reasonable doubt. Consequently, the court found the appellant not guilty and dismissed the charge.

As a result of the District Court's findings, the appeal was allowed, and the appellant was acquitted of the charge. The court ordered that the charge be dismissed, effectively ending the legal proceedings against Mr Sharrock. This decision underscores the importance of the prosecution meeting its burden of proof in criminal cases, particularly when dealing with charges of unauthorised access. The court's ruling highlights the necessity for clear and compelling evidence to support such charges, ensuring that individuals are not wrongfully convicted based on insufficient evidence.

Orders

Orders of the court

Appeal allowed.

Appellant found not guilty.

Charge dismissed.

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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Medium Neutral Citation:	Sharrock v R [2019] NSWDC 850
Hearing dates:	20 December 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Criminal
Before:	GRANT DCJ
Decision:	Appeal allowed. Appellant found not guilty. Charge dismissed.
Catchwords:	Appeal from Local Court to District Court - unauthorised access- s308 H (1) Crimes Act 1900
Legislation Cited:	Crimes Act 1900 Mental Health (Forensics Provisions) Act 1990
Cases Cited:	Charara v R [2006] NSW CCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Salter v DPP (NSW) [2011] NSW CA 190
Category:	Procedural and other rulings
Parties:	Brayden James Sharrock (Offender) Regina (Crown)
Representation:	Mr Eurell (Appellant) Mr Charleston (Crown)
File Number(s):	2018/00271070
Decision under appeal	Court or tribunal: Albury Local Court Jurisdiction: Criminal Date of Decision: 2 July 2019 Before: Magistrate R Brender File Number(s): 2018/00271070