Hodder v Public Transport Authority - [2009] WASC 293

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…

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.

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Details

Case: [2009] WASC 293
Decision Date: 25 SEPTEMBER 2009

CaseChat Overview and Summary

The case of Hodder v Public Transport Authority involved the appellant, Hodder, who contested his conviction for an offence against a public transport employee. The footage from a surveillance camera, which was crucial to the prosecution's case, had been accidentally wiped before the trial commenced, rendering it unavailable. The Court of Appeal had to determine whether the unavailability of this evidence rendered the verdict both unsafe and unsatisfactory, warranting a new trial. The appeal hinged on the extent to which the missing footage impacted the fairness and reliability of the verdict reached.

The legal issue before the Court of Appeal was whether the unavailability of the surveillance camera footage, due to its accidental deletion, necessitated a new trial given that it compromised the safety and satisfaction of the verdict. The court had to balance the principle that a conviction should stand unless it is demonstrated to be unsafe or unsatisfactory, against the potential prejudice to the appellant caused by the loss of potentially exculpatory evidence. This required a careful examination of the remaining evidence and its sufficiency to support the conviction without the deleted footage.

The Court of Appeal held that despite the absence of the surveillance footage, the remaining evidence was sufficient to support the conviction. The court found that the jury could have reasonably concluded, based on the other evidence, that the appellant was guilty beyond reasonable doubt. The missing footage did not undermine the overall reliability of the verdict, as the jury was still able to make an informed decision based on the evidence presented. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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