Director of Public Prosecutions v Koopelian
[2012] NSWSC 309
•02 April 2012
Supreme Court
New South Wales
Medium Neutral Citation: DPP v Koopelian [2012] NSWSC 309 Hearing dates: 2 April 2012 Decision date: 02 April 2012 Jurisdiction: Common Law Before: Adamson J Decision: 1. Order that the appeal pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 from the orders made on 26 July 2011 by Day LCM at Penrith Local Court dismissing two charges of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900 against the defendant, be allowed.
2. Order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 that the order of Day LCM made on 26 July 2011 at Penrith Local Court dismissing proceedings against the defendant, in relation to two charged offences of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900, be set aside on the basis that the Magistrate erroneously held that evidence pursuant to s 48(4) of the Evidence Act 1995 may only be given by a person who meets the criteria set out in s 171 of the Evidence Act 1995 and on that basis failing to admit the evidence of Constable Roger.
3. Order that the matter be remitted to Penrith Local Court to be dealt with according to law by a magistrate other than Day LCM.
4. Order that the defendant pay the plaintiff's costs of and incidental to the summons. I grant to the defendant an indemnity certificate in respect of the appeal pursuant to s 6(1) of the Suitors' Fund Act 1951.
Catchwords: PRACTICE AND PROCEDURE - evidence - meaning of "document" - whether evidence of the contents of a document must be given by a person who meets the criteria set out in s 171 of the Evidence Act Legislation Cited: - Crimes Act 1900
- Crimes (Appeal and Review) Act 2001
- Evidence Act 1995
- Supreme Court Rules 1970Category: Principal judgment Parties: - Director of Public Prosecutions (NSW) Sydney (Plaintiff)
- Max Ohanes Koopelian (Defendant)Representation: Counsel:
- MW Anderson (Plaintiff)
- M Dennis (Defendant)
Solicitors:
- Solicitor for Public Prosecutions (NSW)
- Nyman Gibson Stewart
File Number(s): 2011/00366604
Judgment
By a summons filed on 16 November 2011 the plaintiff appeals against an order made on 26 July 2011 at Penrith Local Court by Day LCM (the Court below) dismissing proceedings against the defendant for two offences of "Incite person under the age of 10 years to commit act of indecency towards the accused": Crimes Act 1900 s 61O(2). The time for filing the summons was extended by the Court below pursuant to Pt 51B, r 6 of the Supreme Court Rules.
At the hearing before me on 2 April 2012, the defendant consented to the following orders:
(1) Order that the appeal pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 from the orders made on 26 July 2011 by Day LCM at Penrith Local Court dismissing two charges of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900 against the defendant, be allowed.
(2) Order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 that the order of Day LCM made on 26 July 2011 at Penrith Local Court dismissing proceedings against the defendant, in relation to two charged offences of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900, be set aside on the basis that the Magistrate erroneously held that evidence pursuant to s 48(4) of the Evidence Act 1995 may only be given by a person who meets the criteria set out in s 171 of the Evidence Act 1995 and on that basis failing to admit the evidence of Constable Roger.
(3) Order that the matter be remitted to Penrith Local Court to be dealt with according to law.
(4) Order that the defendant pay the plaintiff's costs of and incidental to the summons.
Having satisfied myself that the orders were appropriate, I made them with slight modifications which are reflected in the final orders set out below. My reasons for decision follow.
The plaintiff brought the application pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001. It is agreed, and I accept, that the appeal raises a question of law, namely the meaning of s 48 and s 171 of the Evidence Act 1995 (the Act). Although there was a number of grounds of appeal only one was pressed by the plaintiff. Accordingly my reasons will be confined to the rejection by the Court below of the evidence of Senior Constable Roger concerning the contents of an unavailable "document" on the erroneous basis that s 48 and s 171 did not authorize such evidence to be given.
The prosecution case in the Court below is that on two separate occasions on 12 April 2010 the defendant incited the complainant to place her legs on separate walls in an Optus store at the Westpoint Blacktown shopping centre, causing her crotch to be exposed towards him. Both incidents were captured on closed circuit television (CCTV). The footage was then viewed by the investigating officer, Constable Roger, at the Optus store.
Arrangements were made to copy the CCTV film onto a USB memory stick. The electronic file was transferred to the police computer system. However, some time after the original footage had been wiped, it was discovered that the electronic file did not contain the relevant footage.
The prosecution sought to lead evidence from Constable Roger as to the contents of the CCTV film on the basis that it was an "unavailable document" pursuant to s 48(4) of the Act. The defendant objected and the Court below rejected the evidence on the basis that Constable Roger did not meet the criterion in s 171 of the Act.
Section 48 of the Act relevantly provides:
"48 Proof of contents of documents
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
...
(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it - tendering a document that was or purports to have been produced by use of the device,
...
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
...
(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:
(a) tendering a document that is a copy of, or an extract from or summary of, the document in question, or
(b) adducing from a witness evidence of the contents of the document in question."
"Document" is relevantly defined in the Dictionary to the Act as follows:
"document means any record of information, and includes: ...
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else ...
Note. See also clause 8 of Part 2 of this Dictionary on the meaning of document"
Clause 8 of Pt 2 of the Dictionary to the Act provides:
"8 References to documents
A reference in this Act to a document includes a reference to:
(a) any part of the document, or
(b) any copy, reproduction or duplicate of the document or of any part of the document, or
(c) any part of such a copy, reproduction or duplicate."
The term "Unavailability" of documents is relevantly defined in cl 5 of Pt 2 of the Dictionary to the Act as follows:
"5 Unavailability of documents and things
For the purposes of this Act, a document or thing is taken not to be available to a party if and only if: ...
(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person, or: ..."
Section 170 of the Act relevantly provides that proof of contents of a document under s 48 may be given by a person permitted under s 171 to give such evidence. Section 171(2) provides that:
"evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement".
Section 171 relevantly provides:
"171 Persons who may give such evidence
(1) Such evidence may be given by:
(a) a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing, or
(b) except in the case of evidence of a fact that is to be proved in relation to a document or thing because of section 63, 64 or 65 - an authorised person ...
(3) In this section:
authorised person means: ...
(b) a police officer of or above the rank of sergeant ..."
Section 173 of the Act requires the affidavit or statement (referred to in s 170) to be served a reasonable time before the hearing of the proceedings.
The defendant conceded in the Court below that the CCTV footage was a document which was unavailable. However, the defendant objected to the evidence of Constable Roger as to its contents on the ground that he was not an authorized person within the meaning of s 171 of the Act.
Section 171 of the Act is contained in Pt 4.6, Div 2, which is headed "Proof of certain matters by affidavits or written statements". The terms of s 170(2) establish that s 171 is concerned with who may give evidence by affidavit or written statement. The provisions of s 170 and s 171 of the Act are permissive rather than prescriptive in that they provide a means by which such evidence may be given as distinct from requiring that it be given in that way.
The evidence sought to be adduced from Senior Constable Roger as to what he observed when he saw the footage was to be given orally. It was contained neither in an affidavit nor in a statement. Accordingly, s 171 did not apply to his evidence and it was immaterial whether he was an "authorized person" within the meaning of s 171(3)(b) of the Act. Its rejection by the Court below on that basis involved an error of law.
Relief
The defendant sought a certificate under s 6 of the Suitors' Fund Act 1951. In all the circumstances it is appropriate that I grant such a certificate.
I raised with the parties whether they sought an order that the proceedings be remitted to the Local Court to be dealt with by a magistrate other than Day LCM. As referred to above, the Court below dismissed the proceedings. The summons contained various grounds of appeal, only one of which was pressed. The other grounds included matters concerning whether the conduct alleged amounted to an act of indecency. If the matter was listed for hearing again before Day LCM, the plaintiff indicated that it would apply to have the magistrate recuse himself. Although I express no view as to whether the Court below would be obliged to disqualify itself, I consider it to be in the interests of justice that the matter be heard by a different magistrate.
I make the following orders:
(1) Order that the appeal pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 from the orders made on 26 July 2011 by Day LCM at Penrith Local Court dismissing two charges of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900 against the defendant, be allowed.
(2) Order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 that the order of Day LCM made on 26 July 2011 at Penrith Local Court dismissing proceedings against the defendant, in relation to two charged offences of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900, be set aside on the basis that the Magistrate erroneously held that evidence pursuant to s 48(4) of the Evidence Act 1995 may only be given by a person who meets the criteria set out in s 171 of the Evidence Act 1995 and on that basis failing to admit the evidence of Constable Roger.
(3) Order that the matter be remitted to Penrith Local Court to be dealt with according to law by a magistrate other than Day LCM.
(4) Order that the defendant pay the plaintiff's costs of and incidental to the summons. I grant to the defendant an indemnity certificate in respect of the appeal pursuant to s 6(1) of the Suitors' Fund Act 1951.
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Decision last updated: 12 April 2012
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