Michael Gild v The Queen - [2018] VSCA 317

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0253

MICHAEL GILD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST JA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2018
DATE OF JUDGMENT:	28 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 317
JUDGMENT APPEALED FROM:	DPP v Gild (Unreported, County Court of Victoria, Judge Chettle, 27 October 2017)

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CRIMINAL LAW – Appeal – Conviction – Theft – Fifty-nine charges – Retail transactions – Applicant retained cash paid by customers – CCTV footage of applicant’s conduct – Whether admissible – Whether unfairly selective – Whether potentially exculpatory footage unavailable – Computer records of transactions – Prosecution duty of disclosure – Whether duty discharged – Evidence admissible – No miscarriage of justice – Leave to appeal against conviction refused – Evidence Act 2008 s 137.

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

MAXWELL P
PRIEST JA
MACAULAY AJA:

Introduction

An indictment filed in the County Court charged the applicant with 59 charges of theft[1] (charges 1 to 59 inclusive). Each charge alleged the theft of a sum of money — the largest being $120 (charge 19) and the least $10 (charge 17) — from the applicant’s employer, Geoffrey Szwarcbard, in a period between 18 July 2011 (charge 1) and 23 December 2011 (charge 59).
[1]Crimes Act 1958 s 74(1). The maximum penalty is 10 years’ imprisonment.

The prosecution case was that, on 59 separate occasions, whilst at or near the till of the rear cash register in the pharmacy in which he was employed, the applicant dishonestly took, or retained, money given to him by customers or which was already in the till. Closed circuit television (‘CCTV’) footage taken from a security camera in the pharmacy, which depicted the applicant’s activities in the vicinity of the rear cash register, made up the main bulk of the evidence against him.

Following a seven day trial, a jury found the applicant guilty of all but seven of the charges on the indictment (charges 1, 5, 23, 43, 44, 46 and 53).[2]
[2]On 3 November 2017, the trial judge sentenced the applicant to pay an aggregate fine of $26,000 — which is the equivalent of $500 per charge — and ordered the applicant to pay compensation of $2,450 to Geoffrey Szwarcbard. The applicant was also ordered to undergo a forensic procedure.

The applicant sought leave to appeal against his conviction on three grounds:

1.   The learned trial judge erred in admitting into evidence the DVD of CCTV footage [Exhibit C].
2.   The applicant was prejudiced from the late disclosure of Crown evidence and the trial judge proceeding with the trial:
(a)The Prosecution disclosed new evidence during the trial of:
(i)   Till transactions; and
(ii) Methadone book;
(b)The trial judge permitted prosecution [sic] to rely on the new evidence at trial;
(c)The trial judge…

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 Michael Gild v The Queen

Details

AGLC: Michael Gild v The Queen [2018] VSCA 317
Case: [2018] VSCA 317
Decision Date: 28 November 2018

CaseChat Overview and Summary

Michael Gild, the appellant, appealed against his conviction for theft following a series of retail transactions. The trial judge had found Gild guilty of fifty-nine counts of theft and sentenced him to imprisonment. The High Court of Australia was asked to consider whether the trial judge had erred in admitting certain evidence and whether the prosecution had failed in its duty of disclosure.

The court was required to determine if the evidence, particularly CCTV footage and computer records of transactions, was admissible. Gild argued that the evidence was unfairly selective and that potentially exculpatory footage was unavailable. The court also considered whether the prosecution had discharged its duty of disclosure under the Evidence Act 2008. The appellant contended that the failure to disclose certain information led to a miscarriage of justice.

The court found that the CCTV footage and computer records were properly admitted as they were not unfairly selective and the prosecution had discharged its duty of disclosure. The court also held that there was no miscarriage of justice as the missing footage was not considered crucial to the outcome. Consequently, the court refused Gild leave to appeal against his conviction. The evidence was deemed admissible, and the conviction was upheld.

No further orders were made by the court beyond the refusal of leave to appeal against the conviction. The court found no grounds for interference with the trial judge’s decision on the admissibility of the evidence or the discharge of the prosecution’s duty of disclosure.

Orders