Jones v Police - [2009] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JONES v POLICE
[2009] SASC 170
Judgment of The Honourable Justice Gray
12 June 2009
CRIMINAL LAW - EVIDENCE - CREDIBILITY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS RELEVANT TO FACTS IN ISSUE
Appeal against judgment of Magistrate - appellant charged with assault of police officer in company - appellant found guilty of common assault - whether Magistrate erred with respect to identification of appellant - whether Magistrate erred in findings of credibility and reliability of witnesses - whether Magistrate erred rejecting tender of video evidence recorded on mobile phone.
Held: appeal dismissed - video evidence admissible but of little weight - Magistrate's findings open on evidence.
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
Tims v Police [2008] SASC 141; Festa v The Queen (2001) 208 CLR 593, considered.

JONES v POLICE
[2009] SASC 170
Magistrates Appeal
GRAY J:

This is an appeal against the judgment of a Magistrate.
The appellant, Kerrelle Shane Jones, was jointly charged on Information with the aggravated offence of assault.[1] It was alleged that on 1 December 2007, the appellant assaulted a police officer, Sonia Gregory, knowing her to be in the course of her duties, and in company with one or more other persons.
On 3 February 2009 the appellant, following a trial before a Magistrate, was found guilty of the offence of assault. The Magistrate was not satisfied that the offence was aggravated. The Magistrate has not yet recorded a conviction or sentenced the appellant.
[1] Section 20 (3) of the Criminal Law Consolidation Act 1935 (SA) provides:
(3)A person who commits an assault is guilty of an offence.
(a) for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
The Trial
At about 2:30am on 1 December 2007, Sonia Gregory, a police officer, attended the foreshore at Port Augusta. A large group of people had assembled at the foreshore. They were directed by police to move away from the area. A confrontation followed. It was alleged that the appellant assaulted Constable Gregory by kicking her and striking her with his mobile phone.
Evidence was called by the prosecution from police officers who attended on the foreshore at Port Augusta. Constables Matthew Vario and Jessica Newall, two of those witnesses, knew the appellant. They both identified the appellant as the person who assaulted Constable Gregory.
Constable Vario had contact with the appellant for several years. He had given the appellant “lifts home in the past” and “dealt with him in regard to other matters”. He gave evidence that he saw the appellant kick Constable Gregory. He observed that the appellant was wearing a purple and white West Augusta Football Club top. At the time Constable Vario was a short distance from the incident. He recognised the appellant and called out “stop”. The appellant turned around and took up a boxing stance. Constable Vario said to the appellant “don’t be stupid”, the appellant turned and ran, and after a short chase, the Constable took the appellant to the ground and arrested him. The Magistrate reached the following conclusion with regard to Constable Vario’s evidence:
Vario was a good witness. He was clear and precise and was untested in his cross-examination. He gave me no reason at all to doubt the accuracy of his observations. He identified the defendant in court as the person who he knew as Kerrell [sic] Jones.
Constable Newall, during her attendance at the Port Augusta foreshore, had her attention drawn to a group of people toward the end of Commercial Road. She approached the group, and identified the appellant amongst them. He was a person known to Constable Newall at that time. He was wearing a purple and white West Augusta Football Club shirt.
Later Constable Newall observed a commotion on the foreshore and drove the police vehicle to that location. On her arrival, she saw the appellant approach Constable Gregory and kick her. At this time Constable Newall was about four to five metres from the incident. The Magistrate summarised the effect of Constable Newall’s evidence as follows:
Newall gave evidence that she had seen Jones earlier in the evening wearing a purple and white top. She said that she instantly recognised Jones when she arrived at the foreshore and that she saw him kick Gregory. Like Vario, Jones was well known to Newall from previous dealings. She was certain that the person she observed kicking Gregory was Jones.
Constable Gregory gave evidence that the person who attacked her was a young man wearing a purple and white top. Her description was consistent with the description provided by Constables Vario and Newall.
With respect to the evidence of Constables Vario and Newall, the Magistrate further observed:
Vario gave evidence that he recognised Jones from having dealt with him over a period of two years. He was adamant that he had a clear and unobstructed view of Jones and that he saw him kicking Gregory. He said that he had him under observation from the moment he saw the assault until he apprehended Jones and that there was no other person who obstructed his view or who could have been the person kicking Gregory. His evidence is that he recognised Jones and that he had also recognised him earlier that evening in Commercial Road.
Vario’s evidence is important and in considering his evidence I am mindful that he had just arrived on the scene and had not been involved in any other part of the disturbance. His evidence is that he instantly recognised Jones and a result of what he saw he arrested him. He described the lighting as reasonable and said that he was assisted by the lights of the police car. Newall gave evidence that she had the lights of the police vehicle on high beam. I am satisfied that the lighting in that area was sufficient for Vario and Newall to have made a clear identification of Jones.
The evidence of other police witnesses did not assist on the question of identification.
The Magistrate had regard to inconsistencies in the evidence of the police. In this respect, he noted:
I am conscious of the fact that there are a number of inconsistencies between the evidence of the various police officers. Given the situation, which both defendants [sic] counsel were at pains to suggest was similar to chaos, it would be surprising if that were not the case. However, as the evidence relates to the assault upon Gregory by Jones, I have no hesitation in accepting the evidence of Vario and Newall that it was Jones who they saw assaulting Gregory. I have no reason after hearing from both witnesses and from considering their evidence in detail to doubt their observations at the time or the veracity of their evidence.
I recognise that the description given by Gregory as to where she was kicked on her body is at odds with that of Newall. However, I also note from Gregory’s own evidence that she was disoriented and required hospital treatment and her recollection of the extent of the assault upon her may well have been affected by her ordeal.
The appellant gave evidence in his defence but called no other witnesses. His account was that he had observed Constable Gregory attempting to hit another Aboriginal man with her torch. He claimed that Constable Gregory then came toward him and attempted to hit him with a torch. Constable Gregory told the appellant to put his camera away. She approached him, swinging her torch from side to side. He claimed that he then pushed Constable Gregory with his left hand, and ran away. He denied punching or kicking Constable Gregory. He accepted that Constable Vario had called out to him, and that he stopped and “chucked his mobile phone onto the ground”. He accepted that Constable Vario took him to the ground. He claimed that he did not struggle or resist arrest. He claimed that one other person in the group was wearing a similar West Augusta Football Club football shirt.
The Magistrate rejected the evidence of the appellant and noted:
I have considered the evidence of Jones. I note that he had consumed a significant quantity of draught beer at the Flinders Hotel and that this was the first time that he had been permitted to drink at a hotel since attaining 18 years of age. He admits to having pushed Gregory but says that he acted in self-defence. Having raised the issue, it is for the prosecution to prove beyond reasonable doubt that the defendant did not genuinely believe that the safety of his person was threatened and that he had to act to defend himself.
The Magistrate found that the prosecution had established each of the elements of the offence beyond reasonable doubt. The Magistrate was satisfied that while confronting Constable Gregory and taking pictures on his mobile phone, the appellant struck Constable Gregory to the left side of her head. The Magistrate was also satisfied that the appellant kicked Constable Gregory. The Magistrate rejected the police case that the assault was aggravated as he considered that it had not been established that the assault had been committed in company.
In reaching his conclusions, the Magistrate was satisfied that the prosecution had discharged the onus of negativing self-defence. The Magistrate found that the appellant was the aggressor and rejected the evidence of the appellant that he was threatened by Constable Gregory. The Magistrate concluded that the appellant did not hold any genuine belief as to his safety and that his conduct was unreasonable.
The Appeal
The Notice of Appeal raised issues as to the inadequacy of particulars, suggested duplicity, challenged the rejection of the tender of a video recording, the Magistrate’s findings of witness credibility and reliability and the Magistrate’s conclusion with respect to identification.
On the hearing of the appeal, the complaints in respect to particulars and duplicity were not pursued. The Magistrate made it plain that his finding of guilt related only to the allegation of kicking. In these circumstances, counsel on the appeal accepted that there was no utility in proceeding with these complaints.
Leaving to one side the video recording, I consider that the Magistrate was well entitled on the evidence to make the findings referred to above, and to reach the conclusion that the prosecution had established each of the elements of the offence charged and had satisfied the onus that it carried of proving beyond reasonable doubt that the appellant had not acted in self-defence.
It was the appellant’s evidence that Constable Gregory had approached him waiving her torch and demanding that he stop filming. It was his case that he pushed her away and ran. He accepted that Constable Vario had apprehended him. Identification was not a serious issue once the defendant had given evidence. The defence advanced was that contact with Constable Gregory was minimal and was in self-defence. It was argued that the video film recorded on the defendant’s mobile corroborated and supported his account that Constable Gregory was the aggressor and that he acted in self-defence. It was for the police to exclude self-defence as a reasonable possibility. Counsel for the defendant on appeal accepted that if the video recording was properly excluded or alternatively if admitted was of little or no weight that the appeal would be dismissed.
The Magistrate heard evidence from two witnesses who well knew the appellant and identified the appellant as the person who assaulted Constable Gregory. Constable Vario witnessed the assault and chased, apprehended and arrested the assailant. On the appellant’s evidence he was in close proximity to Constable Gregory, and made contact with her. Given the above evidence, it is difficult to see how identification was in issue. A perusal of the reasons discloses that the Magistrate identified the correct principles to be applied when considering identification evidence. It is clear from his considered reasons, that the Magistrate had regard to all relevant factors.
The video evidence consisted of short sequences of film taken by the appellant on his mobile phone. Defence counsel sought to tender the video at trial. The Magistrate provisionally admitted the video de bene esse during the cross-examination of Constable Gregory. The video film was shown to the Court and reviewed on a number of occasions. Finally, the Magistrate rejected the tender of the video recording.
Counsel submitted that the video was relevant for two purposes. It was said that the film depicted a scene that directly contradicted the police evidence that Constable Gregory was not an aggressor. It was further claimed that the video corroborated the evidence given by the appellant.
Counsel claimed that the video initially revealed an indistinct figure of a male police officer holding a torch in the background. The last sequences were said to show flashes from a torch. It was claimed that the conclusion could be reached that the appellant, the holder of the camera, remained still and that it was a torchlight that was moving. It was further claimed that the film depicted Constable Gregory approaching the appellant and thrusting her torch towards him.
As this is the principal complaint advanced on the appeal, it is convenient to set out the Magistrate’s treatment of the video recording:
To be admissible, evidence must be relevant to a fact in issue. The facts in issue in this matter must arise from the alleged assault upon Constable Gregory.
The video produced by [counsel] on behalf of his client contains images which were allegedly recorded at the foreshore on a mobile phone fitted with a camera. Such devices are reasonably common and I am personally aware that they have the capacity to take photographs or record small video files of reasonable quality.
It is suggested to me that the video was taken at the time that Malcolm Coulthard was being arrested by Constable Williams. Malcolm Coulthard is not a defendant in these proceedings. According to any evidence of the events, Coulthard was arrested before the alleged assault upon Gregory. The video does not show Gregory and it does not show any assault upon her. It does not show either of the defendants or the arrest of either of the defendants. It does not contain any identifiable images of Constables Vario, Newall or Wheldon and according to Williams it does not contain any identifiable image of him either.
At best, the video shows a rather confused situation at the time that it was taken.
It is impossible to say where it was taken without accepting the evidence of the person who took it. I accept the evidence of Jones that he took the video.
In Tims v Police, Gray J outlined the law with regard to the admissibility of video evidence.[2] There is nothing inherently inadmissible about such evidence. I am not aware of any specific case in which video taken on a mobile phone camera has been involved, but I can see no reason to approach the admissibility of such evidence on any different basis to that which governs the admissibility of video footage captured by more conventional means. As Gray J said in Tims, “video footage is admissible as evidence of the appearance of the matters recorded, including any inferences fairly arising”.[3] As Gray J also points out, “the degree of clarity and quality of the images are factors which go toward establishing the weight which a trier of fact may properly place on the evidence”.[4]
As I have already mentioned, the clarity and quality of the video tendered in this matter is poor. Notwithstanding, should the video have provided any evidence bearing upon the facts in issue, I would have been prepared to admit it subject to an appropriate consideration as to its weight. However, I am unable to find that the video is relevant.
As I understand the evidence, there is no issue that there was a reasonably large group at the foreshore. The video doesn’t add to that evidence. The arrest of Malcolm Coulthard does not add to the evidence of the assault or relate to it in any other way other than it was made at or about the same time, at the same general location. The video is of no assistance in providing identification evidence of either defendant or the alleged offence. It is of poor quality and clarity, which is supported by the fact that it had to be sent to the University for enhancement. In my opinion it is not relevant and is not admissible.
[2]    Tims v Police [2008] SASC 141.
[3]    Tims v Police [2008] SASC 141 at [42].
[4]    Tims v Police [2008] SASC 141 at [43].
In my view, the video recording was admissible. As Gleeson CJ observed in Festa:[5]
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.
[5] Festa v The Queen (2001) 208 CLR 593 at [14].
I consider that the video recording was of no or minimal weight. My review of the video recording confirms the Magistrate’s conclusion that it showed a confused situation. I was not able to reach any conclusion as to what the video depicted, save that at the outset there were some indistinct human figures and that late in the video there were some flashes of light. I do not consider that it contradicted the evidence of Constable Gregory in any material respect. Further, I do not consider that it supported or corroborated the evidence of the appellant in any material way.
Conclusion
The Magistrate, in his reserved judgment, discussed the evidence in detail, addressed the relevant issues, made findings as to credibility and reliability, identified the correct legal principles and applied them. The findings made were justified by the evidence. A review of the evidence confirms the correctness of the Magistrate’s findings.
This appeal is dismissed.