Gild v The Queen - [2017] VSCA 367

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0220

MICHAEL GILD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2017
DATE OF ORDERS:	24 October 2017
DATE OF REASONS:	12 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 367
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Gild (Unreported, County Court of Victoria, Judge Chettle, 19 October 2017, 23 October 2017)

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CRIMINAL LAW – Interlocutory decision on admissibility of evidence – Application for review of decision of judge to refuse to certify to enable application for leave to appeal to be made – 59 charges of theft – Judge ruled that CCTV footage was admissible and refused to exclude it under s 137 of the Evidence Act 2008 – Judge permitted prosecution to introduce new evidence and rejected application for him to recuse himself made on the basis that remarks about sentence gave rise to apprehended bias – Application for review refused – Application for leave to appeal against refusal of judge to recuse himself refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Kounnas with Mr D Nguyen	Erhardt & Associates Lawyers
For the Respondent	Ms D Guesden	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
COGHLAN JA:

Introduction and summary

The applicant was arraigned in the County Court on 59 charges of theft from a pharmacy where he was employed by the complainant. The prosecution alleged that, in the period from 1 July 2011 until 23 December 2011, on 59 separate occasions, the applicant took money from the rear cash register in the pharmacy, or retained money given to him by customers. The main prosecution evidence was closed circuit television (‘CCTV’) footage taken from a security camera in the pharmacy, which depicted the applicant in the vicinity of the rear cash register.

The CCTV footage was recorded on a digital video recorder (‘DVR’) connected to the pharmacy computer. At the complainant’s request, a technician downloaded parts of the footage that related to days nominated by the complainant on to a hard drive on that computer. The complainant then extracted from those parts of the footage files depicting activity in the vicinity of the rear cash register on the occasions of the alleged thefts. He then burned the files on to a disc and gave this to the police informant.

Pre-trial submissions commenced on Wednesday 18 October 2017 and continued on Thursday 19 October 2017 and Monday 23 October 2017. The jury was empanelled at approximately 12 noon on 23 October 2017.

In the course of pre-trial submissions, the applicant objected to the admissibility of the CCTV footage. He argued that the method used to select and extract the data from the DVR recorder to the pharmacy computer was insufficiently clear and the data extracted was incomplete, and that doubts about its provenance and reliability meant that it had little or no probative value. The applicant also submitted that even if the CCTV footage…

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 Gild v The Queen

Details

AGLC: Gild v The Queen [2017] VSCA 367
Case: [2017] VSCA 367
Decision Date: 12 December 2017

CaseChat Overview and Summary

The case of Gild v The Queen involved the defendant, Gild, who was facing 59 charges of theft. The primary dispute was the admissibility of CCTV footage, with Gild seeking to exclude it under section 137 of the Evidence Act 2008. This was an interlocutory decision, focusing on the procedural aspects of the trial rather than the substantive guilt or innocence of the defendant. The decision was made in the High Court of Australia.

The legal issues that the court had to address included whether the judge was correct in refusing to exclude the CCTV footage under section 137 of the Evidence Act, and whether the judge's refusal to recuse himself due to perceived bias was justified. The court also had to consider if the judge erred in permitting the prosecution to introduce new evidence during the trial.

The High Court found that the judge's decision to admit the CCTV footage was not an error. The court held that the judge had correctly applied the law in determining the admissibility of the footage. Additionally, the court determined that the judge's remarks did not give rise to an apprehension of bias, and thus, the application for recusal was properly rejected. Consequently, the application for review of the judge's decision to refuse to certify for an appeal, as well as the application for leave to appeal against the refusal to recuse the judge, were both dismissed. The court's reasoning was grounded in a detailed analysis of the law and the circumstances of the case, leading to the conclusion that no grounds for appeal existed.

Orders