Australia: The offence of tampering with evidence in New South Wales

A New South Wales police officer who was found guilty of assaulting a Sydney woman during an illegal arrest and then falsifying evidence to “mislead a judicial tribunal” has been suspended on full pay.

Senior constable Mark Follington was charged last year with offences including tampering with evidence with intent to mislead a judicial tribunal, doing an act intending to pervert the course of justice and unauthorised modification of restricted data held in computer, along with two counts of common assault over the arrest of transgender woman Anya Bradford.

Ms Bradford was ‘killing time' before meeting her parole officer at Liverpool's Golden Fleece Hotel when officer Follington and constable Mark Brown asked to see her identification, ostensibly as part of an anti-drug operation on the premises.

The Downing Centre Local Court heard Ms Bradford told officers she was not carrying identification, and that she began to walk away.

Officer Follington originally claimed Ms Bradford had knocked him off balance and became aggressive.

Both officers also claimed the woman became physically violent with them when approached, and was pepper-sprayed and tasered as a result. The junior officer, Mark Brown, administered the pepper spray and fired the taser, saying he did so over concerns for the safety of his senior partner.

However, CCTV footage from the venue told a very different story.

It shows the woman in a placid state before officer Follington grabs arm and forcefully attempts to drag her away.

It is only after this initial assault that a scuffle breaks out between the pair.

Officer Follington is then seen slamming the woman's head several times into an ATM.

Constable Brown then pepper-sprays and tasers her before Follington continues to assault her in the foyer.

The woman then leaves premises, but that's not the end of it.

She runs down the street to her parole officer's office, while police give chase and formally arrest her.

Magistrate Michael Crompton, who presided over the case, found that officer Follington had no legal justification to arrest the woman – noting there was no existing warrant for her arrest and she had not committed an offence.

The Magistrate determined that the arrest was unlawful, adding that the senior officer charged the woman with a series of “bogus offences” to protect himself.

The fabricated charges included assaulting two police officers while they were executing of their duties.

But the charges were formally dropped the next day, and the junior officer came forward shortly thereafter to admit he was uncomfortable with the arrest, as well as the actions of his senior.

Despite pleading not guilty to all charges, officer Follington admitted in court to falsifying police records.

In handing down his verdict, Magistrate Compton determined that the “narrative was intentionally created by officer Follington, and he knew it was false, and that his conduct “was a deliberate act to pervert the course of justice” done “with the intent… to mislead a judicial tribunal.”

The sixty-year old officer will learn his fate when sentenced on 26 July this year.

Constable Brown was never charged and continues to work as a police officer.

The victim, Anya Bradford, says she intends to take civil action against the NSW Police Force for battery, unlawful imprisonment, and malicious prosecution.

If her proceedings are successful, the NSW taxpayer will once again foot the bill for the misconduct of police.

Tampering with evidence is an offence under section 317 of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You suppressed, concealed, destroyed, altered or falsified information knowing it is or may be required as evidence in a judicial proceeding, or you fabricated false evidence (other than by perjury), or you knowingly made use of false evidence, and
2. You intended by doing so to mislead any judicial tribunal in judicial proceedings.

A ‘judicial proceeding' is any proceeding in or before a judicial tribunal in which evidence may be taken on oath.

A ‘judicial tribunal' is any person, including a coroner or arbitrator, or any court or other body authorised by law or by the consent of parties, which may conduct a hearing to determine any matter or thing.

Perverting the course of justice is an offence under section 319 of the Crimes Act 1900 which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You engaged in an act or made an omission, and
2. By that act or omission, you intended to pervert the course of justice.

Section 312 of the Act defines perverting the course of justice as, ‘obstructing, preventing, perverting or defeating the course of justice or the administration of law'.

Examples of the offence include:

1. Attempting to bribe a police or judicial officer to avoid being prosecuted or punished,
2. Falsely swearing or declaring that another person was responsible for an offence,
3. Using another's phone or email to manufacture a defence to a crime, and
4. Encouraging or bribing another person to plead guilty to a crime they did not commit, or to provide a false alibi, or give false testimony in court.

Unauthorised access to data held in a computer is an offence under section 308H of the Crimes Act 1900 which carries a maximum penalty of 2 years in prison

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You caused access to, or modification of, data held in a computer,
2. You did so intentionally,
3. You were not authorised to cause that access or modification,
4. The data was restricted data, and
5. You knew the data was restricted data.

‘Data held in a computer' means:

1. Data entered or copied into a computer,
2. Data held in any removable storage which was in a computer for a time, or
3. Data held in any data storage device on a computer network of which a computer forms a part.

A ‘data storage device' is any thing, including a disk or file server, which contains or is designed to contain data for use by a computer.

‘Access' to data held in a computer means:

1. The display of data by the computer or any other output of the data,
2. The copying or moving of the data to any other place in the computer or to any data storage device, or
3. The execution of any program.

‘Modification' of data held in a computer means:

1. The alteration or removal of data, or
2. The addition of data.

Your actions were ‘unauthorised' if you were not entitled to cause them however, your actions are not unauthorised merely because you had an ulterior motive for them, or if:

1. You were an ‘authorised person' such as a police or other law enforcement officer,
2. The computer disk, credit card or other device was in your lawful custody, and
3. Your actions were to preserve, or to prevent the concealment, fabrication, destruction or loss of, evidence of any offence.

‘Restricted data' means data held in a computer to which access is restricted by an access control system associated with a function of the computer.

Proceedings for the offence must be commenced no later than 12 months from the date of the alleged commission of the offence.

The offence of common assault in NSW is outlined in section 61 of the Crimes Act 1900 and carries a maximum penalty of two years imprisonment and/or a fine of up to $2,200.00.

To establish the offence, police must prove each of the following elements:

1. That you caused another person to fear immediate and unlawful violence, or that you made physical contact with another person,
2. That the other person did not consent, and
3. That your actions were intentional or reckless.

Where a legal defence is established on the evidence before the court, the prosecution will need to disprove that defence beyond all reasonable doubt.

Defences to criminal charges include:

1. Duress,
2. Necessity, and
3. Self-defence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.