Hodder v Public Transport Authority
[2009] WASC 293
•25 SEPTEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HODDER -v- PUBLIC TRANSPORT AUTHORITY [2009] WASC 293
CORAM: McKECHNIE J
HEARD: 16 SEPTEMBER 2009
DELIVERED : 16 SEPTEMBER 2009
PUBLISHED : 25 SEPTEMBER 2009
FILE NO/S: SJA 1003 of 2009
BETWEEN: JAMES LESLIE HODDER
Appellant
AND
PUBLIC TRANSPORT AUTHORITY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE C D ROBERTS
File No :MI 7076 of 2008
Catchwords:
Criminal law - Evidence - Surveillance camera footage wiped before trial - Unavailable - Whether verdict unsafe or unsatisfactory
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms S J Keighery
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
The Police v Sherlock [2009] SASC 64
McKECHNIE J: The appellant was charged that on 6 January 2008 at Midland he did an act in a way to cause a nuisance to persons on a facility, contrary to the Public Transport Authority Regulations 2003 reg 13. On 2 January 2009 the appellant, appearing in person, pleaded not guilty and stood trial. Following trial he was convicted and fined $100.
On 9 June 2009 I ordered that application for leave to appeal and the appeal be heard at the same time on the single ground:
The evidence was unsafe and unsatisfactory as video evidence of the alleged incident was refused by Transperth when requestion by the appellant.
This evidence would have cleared the appellant of any guilt.
At the trial the prosecution called three witnesses. Ms Athanassiou gave evidence that she was a Transit officer on duty on 6 January 2007 when she heard the appellant swear in a loud audible voice. He swore again and she asked him to leave. He went to the bus area still swearing. The witness and her partner Mr Vandevelde issued an infringement notice. When the words were spoken she was standing by the office. There were seven to 10 elderly people around at that time in close proximity, together with a PTA staff member Mr Fimmell a passenger ticketing assistant.
In cross‑examination relevant to the ground of appeal the following exchange occurred:
Have you got any video to prove that?---I believe not.
No. When I asked for a video I couldn't get one. So you've got no video, no evidence that this happened. It's just your word that somebody swore, you look around and blamed some person whose standing behind you. (ts 7)
Mr Vandevelde gave evidence that after receiving a radio call he said:
I've attended the front of the Midland railway station. I observed Officer Athanassiou speaking with a male who I now know to be Mr Hodder [the appellant]. There was approximately seven to 10 people standing within close proximity to Officer Athanassiou. (ts 9)
He issued an infringement notice because Ms Athanassiou did not have her book. Mr Vandevelde did not hear any language that was the subject of the complaint. There is a difference in the evidence as to the issue of the infringement notice. Ms Athanassiou gave evidence that the infringement notice appeared to be issued and given to the appellant at the time, while Mr Vandevelde suggested that because Ms Athanassiou did not have her book, they went back to the office and wrote it up and it was later posted to the appellant.
Mr Fimmell gave evidence that he overheard some swearing by the appellant. There were several senior people in the foyer, including elderly people, ready to board the train. In cross‑examination, relevant to the ground of appeal, the following occurred:
You say you were standing by the ticket - luckily we haven't got a video here today because you were not standing by the ticket machine. You were standing -you were sitting in the office?---That's incorrect.
If we had the video that your transport should have given me, we'd have had that here today to prove my thing right.
…
You were definitely not standing there. (ts 13)
And then further on:
You say there was other people in the station?---That's correct.
If I said to you that there was no-one on the station bar me, what would you say?---I would say that that was incorrect.
There was no-one at all on the station at that particular the time and you, transport, can't even produce a video of the station to prove your point or prove your case. If you had a case, you'd have the video to prove who was on the station and who wasn't but you haven't. There was no-one on that station. You were sitting in your office and you would not possibly have heard of anyone saying anything.
And then further on:
If I get a video later of this showing you not standing there what would you say?---I know I was standing at the gates checking tickets.
Further on in the cross‑examination of Mr Fimmell the appellant said:
I'm sorry. I'm a little bit disappointed that I couldn't get a video of this incident because they wouldn't give it to me and I think it's pretty unfair. (ts 15)
The magistrate then questioned counsel for the prosecution about the video and what the position was and it was noted by the appellant that he had requested it before another magistrate. The magistrate hearing the matter said, 'There's no notation here or order for disclosure'. Further discussion took place between the appellant, the magistrate and counsel about the video. Finally, counsel said he could make a call to make sure there was no video. That was done over the lunch period.
Upon resumption, counsel reported that he had spoken to the supervisor who informed him that there was no request made by the officer or anyone and there was no video footage: 'I asked whether the video footage existed on 6 January 2008 at Midland'. He says, 'no. They only keep the video footage for seven days'. The magistrate said : 'Seven days; that's not very long, seven days, so even if it was in existence it would now be wiped?' Counsel replied 'Yes'.
The magistrate then said to the appellant:
It seems a very short period of time. It doesn't appear as though you're going to get the video footage even if it was available.
And then commented:
Seven days seems to be totally inadequate. I mean, if I was a person who pleads not guilty seven days has already gone so therefore defence would have no means at all being able to examine the footage.
Counsel intervened and said:
Usually in matters like this officers do request footage.
To which the magistrate responded:
Officers request it. If a member of the public wants to plead not guilty, unless he has the foresight to know that tape will be unavailable after days he is never going to be able to prevail himself of that footage. All right, Mr Hodder. There's nothing much more I can do. Okay? The footage is not available. … I have made inquiry on your behalf and just found out it's no longer in existence. … So I'll just have to go with the evidence that has been given in court.
In due course the magistrate came back to the subject towards the end of Mr Fimmell's cross‑examination and said:
It seems to me to be totally inadequate, Mr Newman [who I interpose was counsel for the prosecution] you really should be looking at that. I mean, I appreciate that in some cases it's the prosecution that require upon the video to bolster its case. It doesn't - in my experience in these type of cases - generally once the video is shown to accused people, they often change their plea to one of guilty, but I can envisage cases such as this where Mr Hodder - where he wants to test the veracity of the evidence and the only way to do so is by the video. I would have thought six months would be a more appropriate time rather than seven days. That's just - an accused is never going to be able to get the video. Anyway, that's nothing we can do about it today. Mr Hodder, that might be a matter you might want to take up with the Public Transport Authority.
The appellant then gave evidence denying the offence and indicating he was the sole person in the station at the time. He was cross‑examined about that. In the course of his final submissions he again raised the absence of the video. The magistrate delivered reasons immediately after hearing the evidence. He did not directly refer to the video or lack thereof but was satisfied with the account given by Ms Athanassiou corroborated as it was in parts by the other witnesses. He was also satisfied there were a number of elderly people present within hearing range, relying particularly upon Mr Fimmell's evidence. He was satisfied beyond reasonable doubt.
The summary of the magistrate's position in relation to the video seems to be this: he considered that it was unfortunate that the video was erased after seven days, that it should have been kept longer to allow people the opportunity to bolster or establish their version of events but that in the absence of the video there was nothing else he could do but decide the case upon the basis of the evidence before him.
Mere destruction of film recorded by a closed‑circuit television camera at the scene of an offence does not constitute grounds to stay a prosecution or necessarily establish a miscarriage of justice. In The Police v Sherlock [2009] SASC 64 the Full Court of South Australia considered this very matter within the meaning of 'a fair trial'. The Chief Justice said:
Some would say that it is unfair that the trial of a charge should proceed without Mr Sherlock being afforded the opportunity to view the film in question and, if it assists his case in some way, to make use of it in evidence. That opinion must rest on an assumption that a trial is unfair if evidence that is possibly relevant is not available to the accused in criminal proceedings, for the accused to use as he or she sees fit. For reasons that I have indicated, unfairness in that broad sense is not relevant. The conduct of court proceedings, including criminal proceedings, can be affected by a variety of circumstances that result in material that is or might be relevant not being available to an accused person. It has never been the case that a trial is fair only if all potentially relevant material is available to the parties, or at least to the accused person in criminal proceedings. Such a wide notion of fairness cannot be supported by the authorities. [76]
The Chief Justice pointed out, for instance, that material witnesses may die or become unavailable. He said:
Next, it has to be borne in mind that the most that can be said about the missing film is that it might have recorded something relevant to the case. There is no way of knowing if it did. If the film recorded something relevant, the material might have assisted the prosecution, it might have assisted the defence, or it might have been neutral. That is the most that can be said.. [81]
The case was referred to in R v Edwards [2009] HCA 20; (2009) 83 ALJR 717. In Edwards the court noted that the respondents conceded that the loss of film recorded by a closed-circuit television camera at the scene of an alleged offence would not afford a basis for a stay but they sought to distinguish their case on the basis that the loss of an independent record of the event giving rise to the charge. The court held:
The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair. [31]
I am bound by the decision in Edwards and the decision of the South Australian Supreme Court is of high persuasive authority even if I am not directly bound by it. In any event I agree with it and the principles. In criminal proceedings there are occasions when not all relevant evidence is available. In the present case the magistrate was well aware of the issue and decided the case on the evidence before him. No error can be detected in his reasoning or approach in that respect.
The ground of appeal must fail because the trial proceeding without the video evidence was not relevantly unsafe or unsatisfactory. I would grant leave to appeal but dismiss the appeal.
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