Gild v The Queen
[2017] VSCA 367
•12 December 2017
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 was admissible, it should be excluded under s 137 of the Evidence Act 2008 (‘EA’) on the basis that its probative value was outweighed by the danger of unfair prejudice to him.
In response to the applicant’s submissions, on 19 October 2017, the judge permitted the prosecution to lead new evidence from the technician about the process that was used to download the CCTV footage. On the same day, the judge made a statement that ‘it will be highly likely [that the applicant] will get [a] custodial sentence’ if he maintained his plea of not guilty and was convicted by the jury.[1] Later on the same day, the judge ruled that the CCTV footage was admissible and refused to exclude it under s 137 of the EA.[2]
[1]Transcript of proceedings (19 October 2017) 49.
[2]Transcript of proceedings (19 October 2017) 81–3.
On 23 October 2017, prior to the empanelment of the jury, the judge permitted the prosecution to rely on a new statement by the complainant which attached and explained computer records depicting transactions undertaken by the applicant on the front and rear cash registers. The judge also permitted the prosecution to rely on extracts from a methadone book which recorded sales of methadone. The prosecutor stated that the computer records had initially been provided to defence counsel who had appeared for the applicant at the committal hearing in 2014 and who had since died. Copies of the complainant’s statement, the computer records and the extracts from the methadone book were provided to the applicant on 20 October 2017. The complainant also gave brief oral evidence on 23 October 2017.
On 23 October 2017, the applicant sought production by the prosecution of computer records depicting transactions undertaken by other staff of the pharmacy. The judge stated that, although he could not see the relevance of such records, the applicant could seek access to them if they still existed. However, the judge said that he would not adjourn the trial to enable the applicant to obtain those records.
On 23 October 2017, just prior to the empanelment of the jury, the judge refused an application by the applicant for certification under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) to enable the applicant to seek leave to appeal against the interlocutory decisions outlined at [5] above. The judge also refused a request by the applicant that he recuse himself on the basis that the statement about the likely sentence referred to at [5] above gave rise to apprehended bias.
On 24 October 2017, the applicant made an urgent application to this Court seeking review of the judge’s decision to refuse certification. The applicant also sought leave to appeal against the interlocutory decisions referred to at [5] above and the judge’s refusal to recuse himself. The application was heard urgently at 4:30 pm on 24 October 2017. At the conclusion of the hearing, we made an order refusing the application for review and the application for leave to appeal. We said that we would publish our reasons at a later time. These are our reasons for making that order.
Grounds of appeal
The applicant’s proposed grounds of appeal were in the following terms:
1The trial judge erred in ruling that the video evidence in dispute was admissible:
aThe trial judge erred in reaching a conclusion on the provenance of the video evidence not based on fact.
bThe trial judge erred in accepting that the video evidence in dispute is in fact a copy of the original video evidence.
cThe trial judge erred in failing to deal with each of the video clips independently, but dealt with the video evidence as a whole.
2The trial judge erred in ruling that the video evidence in dispute should not be excluded pursuant to s 137 of the [EA].
aThe probative value of the video evidence is outweighed by unfair prejudice to the accused where:
iIt cannot be seen or is difficult to see what item is being put by the accused into his pocket and thus, at its highest, this evidence cannot support a conviction because its probative value is very low whereas the unfair prejudice to the accused is significant;
iiThe video evidence are excerpts that were cut and compiled by design by the complainant giving rise to significant unfair prejudice;
iiiSignificant unfair prejudice arises from the large number of video clips relating to 59 separate allegations of theft which invites improper tendency reasoning by the jury, in circumstances where the prosecution does not rely upon tendency evidence with respect to:
[A]The accused having committed the acts charged; and
[B]The accused having committed the acts over a long period of time;
ivUnfair prejudice arising from missing video evidence of the front till which could exculpate the accused, denying the Defence the opportunity to view and cross-examine on it.
vThe video clips are missing seconds or minutes at a time and the reason given for this, that there is a motion sensor that gives rise to the missing video, is wrong and not supported by the evidence.
viThe trial judge’s ruling unfairly raised the probative value of the video evidence to the same level, placing undue significance on them in a way that cannot be cured by direction to the jury alone, when considered with the cumulative other prejudicial effects.
3 The trial judge breached a rule of procedural fairness by:
aAllowing the prosecution to introduce new evidence on Day 2 and Day 3 of the trial;
bDenying the Defence sufficient time to deal with new evidence introduced by the prosecution on Day 2 and Day 3 of the trial and pressing ahead to empanel a jury;
cDenying the Defence sufficient time to receive further disclosure from the prosecution concerning the new evidence and pressing ahead to empanel a jury;
dOnly allowing the accused’s legal representatives about 30 minutes to make inquiries of the availability of the Court of Appeal for an interlocutory appeal to be heard, before proceeding to empanel a jury in circumstances where the Defence had advised that it was making [an] application for leave for [an] interlocutory appeal;
4The trial judge erred in refusing defence counsel’s application that he disqualify himself by reason of apprehended bias:
aThe trial judge made remarks at an early stage of the trial which suggested that he had prejudged the matter;
bThe trial judge provided a sentencing indication pursuant to s 208 of the [CPA] in circumstances where:
iThe [applicant] did not make an application for a sentencing indication;
ii The prosecutor did not provide her consent;
iiiRegard was not had to the impact of the offence on any victim of the offence; and
cThe trial judge’s conduct in dealing with defence counsel was in a manner that suggested he had already reached a conclusion on the matter.
Grounds 1 and 2: Admissibility of CCTV footage
It was common ground that, in order to succeed on Grounds 1 and 2, the applicant had to demonstrate that appellate intervention was warranted on House v The King[3] principles.
[3](1936) 55 CLR 499.
In support of Grounds 1 and 2, the applicant relied on the submissions he had made before the judge. He emphasised that: it had not been proved that all the footage relating to the rear cash register was provided to the informant; it was clear that some footage relating to the rear cash register was missing and the gaps could not be explained by the use of a motion sensor; the footage relating to the front cash register — into which he said he had repaid money — was minimal; some parts of the footage relating to the rear cash register did not clearly show what, if anything, the applicant took from the register; and admission of the unclear parts of the footage alongside the footage which clearly showed what the applicant took created a danger that the jury might engage in impermissible tendency reasoning to convict him on charges where there was no clear evidence of anything being stolen.
In our opinion, Grounds 1 and 2 are not made out.
It was open to the judge to find that any issues relating to the reliability of the CCTV footage were matters for the jury to assess having regard to the submissions of the parties and the directions of the judge, and that directions could be given to guard against impermissible reasoning by the jury in relation to the footage. It was also open to the judge to find that the CCTV footage was highly relevant and that any prejudice to the applicant arose because of its capacity to prove the elements of the offence with which he was charged and therefore could not be described as unfair.
Ground 3: New evidence
The applicant submitted that the judge did not give him sufficient time to consider the computer records that were produced on 23 October 2017, and that the judge erred in not deferring the empanelment of the jury to enable the applicant to obtain and consider similar records depicting transactions by other staff of the pharmacy.
In our opinion, Ground 3 is also not made out.
It is very likely that the computer records that were provided to the applicant on 20 October 2017, and produced in court on 23 October 2017, had previously been provided to the defence in 2014. In any event, the contents of those records were explained by the complainant in his written statement and oral evidence and could be readily cross-referenced against the CCTV footage by time and date. As for the computer records relating to other staff of the pharmacy, we share the judge’s view that they did not appear to be relevant. In those circumstances, we are not persuaded that the judge’s decision to refuse an adjournment denied the applicant procedural fairness.
Observations regarding interlocutory appeals on routine evidentiary rulings
Before turning to Ground 4, we wish to endorse the following statements in Harris v The Queen:[4]
It must be said again — and, it is to be hoped, in future heeded — that interlocutory appeals are not suitable vehicles with which to challenge routine evidentiary rulings. …
…
Appeals against interlocutory evidentiary rulings under s 137 (and other provisions) of the [EA] are … governed by House principles. Hence, a judge considering certification, and a party considering whether to seek leave to appeal, must bear steadily in mind that, absent specific error, an interlocutory appeal cannot succeed unless it is demonstrated that it simply was not open to the judge to reach the decision that he or she did. It needs to be understood that the clear legislative intention is that interlocutory appeals on evidence should be strictly confined, and that there must be an insistence upon appellate restraint at an interlocutory stage. Interlocutory appeals based on routine evidentiary rulings are antagonistic to those imperatives.[5]
[4][2017] VSCA 316 (‘Harris’).
[5]Harris [2017] VSCA 316 [56], [59] (citations omitted).
Ground 4: Apprehended bias
The judge’s statement which is the subject of Ground 4 is as follows:
Can I put it as cryptically as this so you can understand, and I hope your client does. I don’t determine this case, the jury will. If they convict your client after a trial on these matters, it will be highly likely he will get [a] custodial sentence on a — if it weren’t a trial, it would not be a custodial sentence. Can I make it any clearer than that?[6]
[6]Transcript of Proceedings (19 October 2017) 49.
The impugned statement was made on the morning of Thursday 19 October 2017, which was the second day of pre-trial submissions. Prior to that time, the judge had viewed the CCTV footage, had heard submissions about the admissibility of the footage and how it would be presented to the jury, and had indicated that, subject to any further submissions from counsel, he believed that he would allow the footage into evidence. Prior to making the impugned statement, the judge had also observed that the applicant had elected to have the charges dealt with in the County Court rather than the Magistrates’ Court. At the end of that day, after the judge made the ruling set out at [5] above, he adjourned the hearing until Monday 23 October 2017.
When the hearing resumed on Monday 23 October 2017, pre-trial submissions continued and the evidence discussed at [6] above was produced by the prosecution. Defence counsel and the judge had a lengthy discussion about the late provision of documents to the defence, during which the judge impressed upon counsel that he intended that a jury be empanelled that day. At the end of that discussion, defence counsel sought certification pursuant to s 295(3) of the CPA and, when the judge refused, defence counsel made an application that the judge recuse himself. The following exchange took place in relation to that application:
COUNSEL: The other matter that I have been instructed, and have taken very candid instructions on, and given very candid advice on, but nonetheless I am instructed to pursue this, is to make an application of an apprehended bias given some comments that were made last week.
HIS HONOUR: Which one?
COUNSEL: The comments that were — I’ve got the extract from the transcript here.
HIS HONOUR: The one that says I’m not deciding this case, but if your client is convicted he’d probably go to prison; if he pleads, he won’t.
COUNSEL: That’s the comment, Your Honour.
HIS HONOUR: That’s not apprehended bias. It’s a statement of reality.
COUNSEL: It’s obviously caused the accused and his wife some distress.
HIS HONOUR: I’m not deciding this case. I made it clear at the time, and I say it again, this should have been dealt with in the Magistrates’ Court. The quantum … is not very much. … At its best, two-and-a-half, $3,000. For a man I assume has got no prior convictions?
COUNSEL: That’s right.
HIS HONOUR: On a plea he would not have to worry about a custodial sentence. But if you run a trial, and you’ve got 59 examples of theft by an employee, the jury convicted him in that regard. He would be at risk of going — he would be going to gaol, one would think, prima facie. So you’d have to have some pretty good material to keep him out. That’s no more than what I said last week. That is not a — that’s no basis of apprehended bias. I don’t determine this. The jury might accept that he was acting perfectly honestly. That’s not my choice, that’s theirs.
COUNSEL: Yes. The issue there is, Your Honour, that the [CPA] tends to preclude those types of sentencing indications being given in this court.
HIS HONOUR: No it doesn’t. You can actually apply for a — you can actually ask for a sentencing indication, if you wanted to.
COUNSEL: Yes.
HIS HONOUR: And I can say — if the Crown conceded, all I can say is if you pleaded guilty, whether you’d go to gaol or not. That’s really all I can say. No one’s asking for it, it was an informal sentence indication.
COUNSEL: It’d be my submission, Your Honour, that that can only be done on application.
HIS HONOUR: How are you prejudiced by that? Your client knows that if he pleads he wouldn’t go to gaol.
COUNSEL: Yes, Your Honour. He says that it’s created a — the test can be put, a fair minded (indistinct), and I know Your Honour knows this test but – – –
HIS HONOUR: I know but just a moment. A fair minded observer would simply indicate that this fellow was given a quote. He wasn’t told he had to plead. He wasn’t told what would happen. It’s just that if he went to — if he ran this to trial and was convicted of the matters alleged, he’s in a position of 59 breaches of trust. On a plea, with a man with no priors, something that’s this old, he wouldn’t. I mean, it’s a totally different position. … And I don’t — there’s no basis for the apprehended bias. I’m actually, if anything, displaying, I would have thought, sympathy for your client’s position by what I indicated.[7]
[7]Transcript of Proceedings (23 October 2017) 117–19.
The principles relating to apprehended bias were summarised as follows by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy:[8]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.[9]
[8](2000) 205 CLR 337 (‘Ebner’).
[9]Ebner (2000) 205 CLR 337, 344–5 [6] (citations omitted).
Their Honours stated that the application of that principle has two steps. The first step is to identify what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step requires an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[10]
[10]Ebner (2000) 205 CLR 337, 345 [8]; Kuek v Wade [2017] VSCA 329 [65] (‘Kuek’).
The appearance of impartial justice would be compromised if the words or actions of a judge conveyed the impression that he or she had preconceived adverse views about a party’s case and that those views were so strongly held that he or she was unwilling or unable to consider on their merits any submissions made, or evidence adduced, by that party which were inconsistent with those views. However, the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.[11]
[11]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 610 [112]; Kuek [2017] VSCA 329 [66].
In Vakauta v Kelly,[12] Brennan, Deane and Gaudron JJ stated that when comments which give rise to a reasonable apprehension of bias are made, a party with legal representation is not entitled to stand by and wait until the contents of the final judgment are known before deciding whether to attack the judgment. By failing to object to the judge’s remarks at the time they are made, the party waives any right to appeal against an adverse judgment on the ground of what was said at the trial.[13]
[12](1989) 167 CLR 568 (‘Vakauta’).
[13]Vakauta (1989) 167 CLR 568, 572. Toohey J made similar remarks: at 587–8. See also Kuek [2017] VSCA 329 [67].
Part 5.6 of the CPA is relevant to a consideration of Ground 4. Section 207 empowers a court to indicate whether, if an accused pleads guilty to a charge, the court would or would not be likely to impose an immediate sentence of imprisonment. However, s 208 provides that such a sentence indication may only be given on the application of the accused, and with the consent of the prosecutor. No such application was made in the present case. Section 209 prohibits the court from imposing an immediate sentence of imprisonment if it has indicated that such a sentence would not be likely, and the accused then pleads guilty. If the accused does not plead guilty after a sentence indication under s 207 is provided, s 209(2) requires that, unless the parties agree otherwise, the court must be constituted by a different judge at trial.
Before this Court, the applicant submitted that the judge’s impugned statement gives rise to concern that a bystander may form the view that there had been pre-judgment that, if the trial proceeded and the applicant was convicted, the sentencing disposition would be a period of imprisonment. The applicant also submitted that the impugned statement was contrary to pt 5.6 of the CPA because the judge gave a sentence indication in the absence of an application by the applicant.
In our opinion, the judge’s statement about the likely sentencing disposition in the event of the applicant maintaining his plea of not guilty is to be regretted. It was not only premature but was also expressed in excessively forceful terms. The authorities have cautioned against judges giving sentence indications to an accused prior to the accused’s plea. Apart from the risk that such an indication may be erroneous because it is given prematurely and on an uninformed basis, there is also the risk that the accused may misunderstand the nature or implications of the indication or may feel pressured into pleading guilty to offences which he or she intended to contest.[14]
[14]R v Marshall [1981] VR 725, 732–5; R v Pugh (2005) 158 A Crim R 302, 340–5 [176]–[187]; Guariglia v The Queen (2010) 208 A Crim R 49, 59–61 [34]–[42], 62 [46].
At the time when the impugned statement was made, the jury had not yet been empanelled and the judge was not aware of all the evidence to be adduced. Critically, the judge knew nothing of any mitigating circumstances upon which the applicant might rely on a plea that would inform the proper exercise of the sentencing discretion. It was therefore not appropriate for the judge to say anything about whether a finding of guilt by the jury was likely — let alone highly likely — to result in a custodial sentence.
However, notwithstanding the above concerns and the strong language used by the judge, we are not satisfied that the principles relating to apprehended bias are engaged. A fair-minded lay observer who heard the impugned statement in the context in which it was made would not reasonably apprehend that the judge might not bring an impartial mind to the resolution of any question the judge was required to decide. This is because the judge did not say, or by his words convey, that, irrespective of what the applicant submitted on a plea, he would be sentenced to a custodial sentence if the jury returned a guilty verdict. The judge’s statement could not fairly be construed as evincing a closed mind on what the appropriate sentencing disposition would be if the applicant were found guilty. The judge’s discussion with the applicant’s counsel indicates that the judge recognised that such a disposition would have to take into account any matters relied upon by the applicant on a plea.
In the event that the applicant is found guilty, the judge’s exercise of the sentencing discretion would clearly miscarry — and the applicant would be entitled to seek leave to appeal — if the judge were to ignore what was put on a plea and act on a preconception of what the sentencing disposition would be. Self-evidently, the applicant would need to be sentenced on the basis of an impartial and objective assessment of the evidence adduced, and the submissions made, on a plea.
Section 207 of the CPA does not prohibit judges from making general statements which accord with well-established principles about the relevance and potential weight of particular sentencing considerations. However, a sentence indication of the type specified in s 207 should be made only in accordance with pt 5.6 of the CPA so that the protections set out in s 209 would apply to the accused.
As appears from [21] above, defence counsel stated that he had instructions to apply for the judge to recuse himself. As defence counsel did not at any stage after the commencement of the hearing on Monday 23 October 2017 consult the applicant to seek those instructions, it can be readily inferred that he had the instructions prior to the commencement of the hearing. Indeed, before this Court, counsel for the applicant candidly stated that he received those instructions on the weekend. Defence counsel should have acted on those instructions at the commencement of the hearing on Monday. However, as we have held that the principles of apprehended bias are not engaged, it is not necessary for us to decide whether the fact that defence counsel kept those instructions in reserve pending the outcome of further submissions— including whether the judge would grant certification under s 295(3) of the CPA — meant that the applicant should not be permitted to complain about the judge’s conduct by way of an interlocutory appeal.
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