Michael Gild v The Queen
[2018] VSCA 317
•28 November 2018
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 improperly refused an adjournment; and
(d)The defence was denied adequate time to properly deal and give answer to [sic] the new evidence.
3. The prosecution failed to disclose evidence requested by the defence in breach of their duty to do so.
(a)The new evidence referred to in ground two was an extract from a larger accounting record kept on a computer in the possession of the complainant.
(b)The defence sought disclosure of the additional till transactions on the computer made by other members of staff both orally and in writing to the prosecution. This was ultimately not provided.
(c)The defence was denied time to obtain and analyse the additional till transactions made by other members of staff.
These grounds bear a marked similarity to a number of grounds agitated by the applicant on an unsuccessful application for leave to appeal several evidentiary rulings made by the trial judge.[3] Indeed, three of the four grounds unsuccessfully relied upon in support of that application appear to cover the same ground as the present grounds (with, perhaps, slight differences of emphasis and expression).[4]
[3]Gild v The Queen [2017] VSCA 367 (Kyrou and Coghlan JJA) (‘Gild [No 1]’).
[4]Ibid [10].
For the reasons that follow, we consider that the application for leave to appeal against conviction must be refused.
The alleged offending
The charges arose in the following way.
Throughout 2011, and for some 30 years previously, Geoffrey Szwarcbard and his wife Sue operated a pharmacy in Glenhuntly Road, Elsternwick. They had employed the applicant, a qualified pharmacist, for some nine and a half years to work in the dispensary. In 2011, the applicant was aged 71 years, and was without any prior convictions.
In his evidence, Mr Szwarcbard explained that the dispensary was located in the rear of the pharmacy premises, which he said was ‘110 foot long’. There was a till located in the rear of ‘the shop’, just in front of the dispensary, and another ‘at the very front’. Only the till at the front of the shop had a terminal to enable electronic payments. Mr Szwarcbard estimated that the distance between the two tills was ‘about 80 feet’. He said the shop was ‘narrow and long’. There were four ‘active’ security cameras inside the shop. His evidence was that camera 1 ‘looked at the front till’, and camera 4 ‘was looking at the back till’. (Camera 2 ‘looked down the side as you’re walking in’, and camera 3 ‘looked down the other side walking out’.)
There were two full-time, and one part-time, female assistants working in the pharmacy. Mr Szwarcbard, himself a pharmacist, worked every day; and his wife, also a pharmacist, worked three days a week. The applicant worked on Monday, Tuesday, Thursday and Friday, between 9:30 am and 5:30 pm.
Mr Szwarcbard’s evidence was that on 22 December 2011, at about 12:50 pm, he overheard a customer in the pharmacy complain that the applicant had not given her the change that was due to her. As a result, Mr Szwarcbard decided to review CCTV footage produced by the security cameras. The footage — taken from camera 4 — that Mr Szwarcbard reviewed was played to the jury. It formed part of the footage recorded onto a digital video disc (‘DVD’), Exhibit C.
Although no description of what was depicted on the DVD was read into the trial transcript, the footage speaks for itself. Indeed, it is very revealing. Initially, it depicts the applicant — wearing a white coat of the type customarily worn by pharmacists, with a name tag on the left breast pocket — behind the counter in front of the dispensary. He is holding what appears to be a plastic bottle and a cardboard box, presumably containing pharmaceutical products. It appears that he is dealing with a female customer. The customer hands the applicant cash, and the applicant then passes prescription forms to the customer for her signature. He is then seen to go to the till and press keys, resulting in the till drawer opening. The applicant then removes a number of bank notes from the till drawer. He then makes a half turn to his right to look behind himself. Having done so, he turns back towards the customer — her head is down signing the forms — whilst at the same time surreptitiously placing the bank notes that he had removed from the till drawer into the right hand pocket of his coat (charge 57). He is then seen to fumble with a plastic bag into which to put the pharmaceutical products. Before he can put the products in the bag, however, the female customer is seen to take the cardboard box from the counter and place it in her bag. The applicant then hands the plastic bottle and a prescription form to the customer, which she also places in her bag. She then can be seen looking into her purse — which she has been holding in her left hand — and gesticulating, whilst at the same time appearing to remonstrate with the applicant. The applicant is then seen going to the till, opening the drawer and removing coins and cash, which he then appears to count out whilst placing the coins and cash into the customer’s right hand. She then closes her purse and there is further conversation, during which the applicant makes gestures towards the till.
It is unsurprising that, having viewed this footage, Mr Szwarcbard decided to confront the applicant.
Whilst watching him the following day, 23 December 2011, Mr Szwarcbard observed the applicant remove $50 that had been handed to him by a customer from the till. He saw the applicant ‘scrunching’ the note into a side pocket (charge 59). (This too is depicted on the DVD, Exhibit C.) Mr Szwarcbard then confronted the applicant and asked him to empty his pockets. The applicant claimed that the $50 was his, until Mr Szwarcbard showed him the footage from the previous day. As soon as he had viewed it, the applicant said, ‘You have my immediate resignation’. He then took off his coat and left.
Subsequently, Mr Szwarcbard reviewed all of the available CCTV footage. He identified 59 instances of apparent theft by the applicant. The relevant video footage was extracted onto the DVD, Exhibit C, and became the centrepiece of the prosecution’s case at trial. It was played to the jury, and depicted each taking of cash which resulted in the 52 verdicts of guilty which they returned. Although, of course, the jury’s verdicts are inscrutable, the trial judge — who, it must be said, was in a better position than this Court to make such a judgment — expressed the view in his sentencing remarks that the seven acquittals resulted because ‘the jury were unable to tell what, if anything, was taken on those occasions’.
Ultimately, the applicant was convicted on three charges of theft committed on 18 July 2011 (charges 2, 3 and 4), and one charge of theft committed on 19 July 2011 (charge 6), the only available footage for that period being restricted to those two days.[5] Footage available for the three and a half weeks between 28 November 2011 to 23 December 2011[6] resulted in the applicant being convicted of 48 of the 53 charges alleged during that period.
[5]These were the last two days before a new security system was installed.
[6]The evidence was that the footage was wiped clean every few weeks.
With slight variations, the applicant’s modus operandi was similar on each occasion. The footage shows the applicant sometimes taking cash notes from customers and putting them in his pocket. Sometimes he places the notes on the counter before furtively putting them into his coat pocket. On other occasions he places the notes on top of (rather than in) the cash drawers of the open till, before scooping them up and placing them into his pocket. Other occasions show him putting notes into the cash drawers, then taking them out and putting them into his pocket. On further occasions he can be seen to simply open the till and pocket money. Often he is seen to look around before pocketing the cash. He is also seen usually to compress or crumple the cash before putting it in his pocket.
The video footage proves the truism that a picture is worth a thousand words. Quite obviously, the applicant’s conduct is brazen. Often, as we have indicated, he is seen to check to ensure that he is not being watched, even though on occasions the Szwarcbards and staff can be seen in the vicinity. Nobody watching the footage could sensibly conclude that the applicant’s conduct and demeanour was other than flagrantly dishonest. Indeed, once the footage was before the jury, we consider that conviction on at least the majority of charges was inevitable.
According to other evidence in the prosecution case, the various transactions upon which the charges were based were the subject of electronic till records or entries in a written book referred to as the ‘Methadone book’. The applicant allegedly falsified the till records in various ways in order to conceal his dishonest conduct. Hence, he made many ‘no sale’ entries where there had been sales, ‘voided’ legitimate transactions or reduced the amount of genuine transactions by undervaluing the sales. (In his evidence at trial, the applicant claimed that these entries were errors or mistakes. It is plain that the jury must have rejected this explanation.)
The thefts of which the applicant was found guilty may be summarised as follows:
·on 18 July 2011, the applicant stole respectively $50, $50 and $20 (charges 2, 3 and 4);
·on 19 July 2011, he stole $50 (charge 6);
·on 28 November 2011, he stole $50, $55, $40 and $50 (charges 7, 8, 9 and 10);
·on 29 November 2011, he stole $20, $20 and $50 (charges 11, 12 and 13);
·on 1 December 2011, he stole $50, $10, $50, $10 and $50 (charges 14, 15, 16, 17 and 18);
·on 2 December 2011, he stole $120, $50 and $20 (charges 19, 20 and 21);
·on 5 December 2011, he stole $65, $50 and $50 (charges 22, 24 and 25);
·on 6 December 2011, on three occasions he stole $50 (charges 26, 27 and 28);
·on 9 December 2011, he stole $80, $60, $100 and three lots of $50 (charges 29, 30, 31, 32, 33 and 34);
·on 12 December 2011, he stole $50, $20 and $50 (charges 35, 36 and 37);
·on 13 December 2011, he stole $50 and $10 (charges 38 and 39);
·on 15 December 2011, on three occasions he stole $50 (charges 40, 41 and 42);
·on 16 December 2011 he stole $70 (charge 45);
·on 19 December 2011, he stole two amounts of $50 (charges 47 and 48);
·on 20 December 2011, he stole $20, $70, $50 and $50 (charges 49, 50, 51 and 52);
·on 21 December 2011, he stole $50 and $20 (charges 54 and 55);
·on 22 December 2011, he stole $50 and $80 (charges 56 and 57); and
·on 23 December 2011, he stole $20 and $50 (charges 58 and 59).[7]
[7]Although these sums add up to $2,670, a compensation order of $2,425 was sought.
The admissibility of the video footage — ground 1
So as to understand how the first ground was put, it is necessary to refer to a little more of the evidence.
Moshe Nachman was qualified in electrical engineering. He gave evidence that the Szwarcbard pharmacy had a security system set up which included cameras connected to a digital video recorder (‘DVR’), which in turn was attached to a computer. The DVR recorded when there was movement. Mr Nachman said that he was asked by Mr Szwarcbard to extract a series of recordings between certain dates. He extracted footage with Mr Szwarcbard, who told him the dates. Everything for those dates was saved to a USB drive, and Mr Nachman later ensured that the extracted files were viewable. Mr Szwarcbard then extracted portions of that video footage onto a DVD (which became Exhibit C).
The applicant’s ‘defence’ essentially was that, on the occasions he could be seen taking money, he simply was replacing funds that he had provided in the ordinary course of the day-to-day operation of the pharmacy. Thus, the tills contained only a small amount of cash at the beginning of each business day. Although Mr Szwarcbard carried a ‘float’ for the purpose of making change if there was insufficient in the tills, there were times when Mr Szwarcbard was absent. There were occasions, therefore, when there would not be enough cash in the tills for the shop assistants to provide change (for example, if a customer early in the day handed over a $100 note). The shop assistants would then ask the applicant to provide change — say $50 — because there was insufficient cash in the tills to do so. Having provided change — for example, by way of two $20 notes and one $10 note — the applicant would later reimburse himself from the register (by, for example, removing a $50 note). In a like vein, if the applicant did not provide enough change at the relevant time — for example, he was given $50 but could only provide two $20 notes — he would later put the balance (say $10) into the front till.
One sufficiently gleans the thrust of the applicant’s case from the following passages of his evidence given in his own defence:
Now we’ve see the videos but I want to ask you straight out, did you take the money from — that’s shown in the videos?---Yes, of course, yes, I’ve already admitted that.
All right, well why did you take that money?---Well, there was never enough money left in — especially the front till in the mornings and Geoff often went out and it was only ten minutes or so but he often went out. And the girls would come up to me in the dispensary and say, ‘There's a $50 bill, I need money’. So I would give them the money because I’m — I’ve been doing it all my pharmacy life. That’s how it worked.
And:
At that point [ie, when the Szwarcbards were absent] who’d be running the float and running the till?---Well, when they were away completely I had the float. I had — I can’t remember whether it was left pocket, back till, right pocket, front till, I always get them muddled up and it all sorted itself out in the end anyway.
I just want to ask about those sorts of times. Where would you mainly be located within the pharmacy during any given working day?---Dispensary.
In the circumstances where you’ve just mentioned the girls would ask you for change?---Yes.
Where would that happen? Where would they ask you?---Dispensary. I’m in charge, I’m doing scripts.
You’ve seen the videos, you’ve been in court and watched the videos that have been played to the jury. I just want to ask you about your demeanour in those video clips. There’s a couple of instances where you’re seen to fold up or scrunch up a note. Could you describe why that was?---Oh, I just didn’t want the client to see any because I’m not the boss. If I was the boss I would happily take a note in my wallet and put it in, but I’m not the boss and I just think it wasn’t good policy for them to see, um, me taking money, which was mine, I’m not denying that it was mine, but it was just my habit.
In support of the first ground, counsel for the applicant (who was not counsel at trial) submitted that Mr Szwarcbard, with the assistance of Mr Nachman, had copied ‘the full footage’ from the pharmacy DVR, but Mr Szwarcbard had then extracted only 59 ‘excerpts’ of what he determined were the relevant portions of footage. It was these 59 excerpts that the prosecution relied upon to show the applicant appropriating money from the rear till of the shop. Although it was accepted that the full footage of the rear till was provided to the defence, of the seven days of footage provided of the front till, three days of footage are incomplete or have parts missing. As a result, so counsel submitted, the trial judge should have excluded the DVD evidence of the CCTV footage, Exhibit C. Relying on s 137 of the Evidence Act 2008, counsel submitted that the probative value of the evidence was outweighed by the risk of unfair prejudice.[8]
[8]In the written case, it had been asserted that the evidence did not meet the test of relevance under s 55(1) of the Evidence Act 2008. That argument was abandoned in oral argument.
Counsel submitted that the evidence should have been excluded under s 137 because:
·the video evidence consists of excerpts that were cut and compiled by design by Mr Szwarcbard, thus placing doubt on its provenance and giving rise to significant unfair prejudice which outweighed any probative value;
·unfair prejudice arose from the fact that the 59 video excerpts are missing surrounding seconds or minutes of footage, such missing footage possibly being exculpatory;
·similarly, unfair prejudice arose from missing video evidence of activities at the front till, which could have exculpated the applicant;
·in the CCTV footage it could not be seen, or it is difficult to see, what item is being put by the applicant into his pocket and thus, at its highest, the evidence could not support a conviction because its probative value is very low whereas the unfair prejudice to the applicant is significant;
·permitting adduction of 59 video excerpts invited improper tendency reasoning; and
·the risk of unfair prejudice could not be cured by judicial direction.
There is no substance in any of these submissions.
The impugned evidence was very potent. Its probative value was very high, since it was so eloquent of the applicant’s guilt. As we have indicated, the footage spoke volumes about the applicant’s conduct and demeanour, and, ultimately, about whether his appropriation of cash was dishonest. No sensible person viewing the footage and witnessing the applicant’s behaviour could rationally conclude other than that his pocketing of the money was devious and glaringly dishonest, and that his explanation for his furtive conduct was utterly preposterous.
We reject the notion that there was any doubt about the provenance of the footage. Mr Szwarcbard and Mr Nachman explained how the footage came to be compiled, and there is no reason to doubt their evidence of those matters. And we note that so far as provenance is concerned, counsel did not — at least in oral argument — seek to impugn the reliability of the evidence[9] (notwithstanding that she asserted that the CCTV footage was ‘incurably misleading’ because — so counsel submitted — it was selective and incomplete).
[9]See IMM v The Queen (2016) 257 CLR 300, 316 [54] (French CJ, Kiefel, Bell and Keane JJ).
In any event, we consider that the footage speaks for itself. A viewer may readily discern the circumstances in which the footage was captured and what it depicts. The probative value of the evidence lies in what it in fact portrays. To that extent, the absence of surrounding footage does not impinge in any way upon its probative value. Indeed, the fact that the footage was not unfairly prejudicial might be seen to be reflected in the seven acquittals, which are an indicator that the jury gave the applicant the benefit of the doubt whenever what he pocketed was not distinct.
Finally, we consider that any risk of misuse of the evidence (if any) was readily capable of amelioration by directions. Thus, the judge gave the jury a conventional direction that they must consider each charge separately, and reach a verdict on any particular only in light of the evidence relevant to it. The fact that the jury adhered to these directions is emphasised by the jury’s verdicts.
Ground 1 cannot be upheld.
Non-disclosure and late disclosure by the prosecution — grounds 2 and 3
In order to understand the complaints made under the umbrella of grounds 2 and 3, it is necessary to set out what occurred in the lead-up to the trial.
The matter was originally set down for trial on 6 July 2015, before another judge. On that day, the prosecutor filed an amended ‘Summary of Prosecution Opening’ (a copy of which has been provided to this Court). That document gave detailed particulars of each of the impugned transactions; made clear that in most instances the evidence in support would consist of CCTV footage; and referred more than once to entries allegedly made by the applicant in ‘the methadone book’.
In the course of discussion, the following exchange then took place between the prosecutor and the judge:
[PROSECUTOR]: The Crown is proposing to tender some computer records that were provided by the complainant after the committal. I’ll hand Your Honour up a copy in a moment. My instructor has prepared an aid chart which links the charge number with the date and time of the footage and links to my matching of the computer record from the register.
HIS HONOUR: As to the first two legs, I understand that, but don’t understand the third, that is, the register. What do you mean by that?
[PROSECUTOR]: The register is basically a computer, and the complainant was able to print out records from the computer which show every sale and the time it took place, and I’ve gone through that looking at the time that corresponded with the video footage.
HIS HONOUR: To the CCTV footage, yes.
[PROSECUTOR]: And I’ve put down what my view is of that.
HIS HONOUR: Yes, that will eventually be a very helpful document.
[PROSECUTOR]: Yes, Your Honour. I can hand both of those up.
HIS HONOUR: Yes. [Defence counsel], have you had an opportunity to look at that document?
[DEFENCE COUNSEL]: If this is the latest document, I'm looking at it now, Your Honour.
HIS HONOUR: All right. If you need time to peruse it all you need do is ask.
[DEFENCE COUNSEL]: Thank you, Your Honour.
As may be seen, defence counsel confirmed that he had the cash register computer records, together with an ‘aid chart’ linking the charge number to the date and time of the footage and to the relevant computer record. Counsel submitted, however, that the defence had not been given access to the full CCTV footage from which the incriminating extracts had been taken and that time was needed to review the footage. The judge accepted the submission and adjourned the trial out of the list. Subsequently, the trial was listed for hearing in October 2017.
Pre-empanelment legal submissions commenced on Wednesday, 18 October 2017. They continued throughout Thursday, 19 October 2017 — on which day the judge ruled the CCTV footage to be admissible — and Monday, 23 October 2017. The jury were empanelled at about midday on 23 October 2017.
Prior to the empanelment on 23 October 2017, the judge gave the prosecution permission to rely on a new statement by Mr Szwarcbard with attached computer records. That statement explained the computer records, which documented transactions undertaken by the applicant on the shop’s front and rear tills. (Mr Szwarcbard also gave brief evidence on voir dire about these records.) Further, the judge also permitted the prosecution to rely on extracts from the Methadone book, which recorded sales of methadone. Copies of all of these documents had been provided to the applicant’s legal advisors on 20 October 2017.
The prosecutor informed the judge — and we do not take the accuracy of this assertion to have been disputed in this Court — that the computer records had initially been provided in 2014 to counsel who had appeared for the applicant at the committal hearing (and who had since died). And as we have already noted, the transcript confirms that the defence had the records (and an aid chart linking them to the CCTV footage and the individual charges) not later than 6 July 2015.
That same day, 23 October 2017, the applicant’s counsel also sought production by the prosecution of computer records depicting transactions undertaken by other staff of the pharmacy. The judge said that, although he could not see the relevance of such records, the applicant could seek access to them if they still existed, but that he would not adjourn the trial to enable the applicant’s lawyers to obtain those records.
Also 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 to enable the applicant to seek leave to appeal against the ruling admitting the CCTV footage. (The judge also refused a request by the applicant that he recuse himself on the basis of a statement said to give rise to apprehended bias.)
The next day, 24 October 2017, the applicant made an urgent application to this Court seeking review of the judge’s decision to refuse certification; seeking leave to appeal against interlocutory decisions permitting the CCTV footage to be adduced and refusing defence counsel time to review the recently produced records; and seeking leave to appeal against the judge’s refusal to recuse himself. The application was heard urgently in the late afternoon 24 October 2017, but was refused. With respect to ground 3 of that application — which complained of a denial of procedural fairness based on (among other things) the late production of the computer records and Methadone book — the Court observed:
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 [Mr Szwarcbard] 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.[10]
[10]Gild [No 1] [2017] VSCA 367 [15]–[17] (emphasis added).
Importantly, Mr Szwarcbard’s statement, dated 23 October 2017, married the till computer records to the 59 transactions depicted on the CCTV footage. In part it read:
Every employee has their own numerical clerk sign in key, or identification number that they use when they make sales. They use these to access the till. [The applicant’s] operator number was number ‘40’, and was used only by him. The computer records all the activity on the tills … I downloaded all the activity of seller ID 40, setting the parameters of 18th and 19th of July 2011, and from the 28th of November until the 23rd of December. This document details all of the transaction history made by seller ID ‘40’.
There are a number of different record types on the till as I will detail below:
·Normal Sale — This is sales made by cash, card or account.
·No Sale Entry — This is where no sale is made, but is used to open the till for various reasons.
·Account Payment — This is where a sale has been completed, but then cancelled by the employee.
·Register Items Voided — This is where an employee scans several items, but then voids it before finalizing the sale.
·Returns — This is where an item is returned, and the customer is refunded.
·Exception sale — This is where an item is rung up at less than its cost price.
The till record also separates normal sales into the method of payment. The record also shows which till is used by the employee. Register 1 is the front till, and register two is the back till. …
The statement then went on to explain the nature of the record for the 59 transactions corresponding to the CCTV video footage, and concluded:
With regard to methadone transactions, the client signs and dates their individual log book to say they’ve received their methadone, and a pharmacist signs to say that we've received their payment.
Ultimately, the till records, and the entries taken from the Methadone book, became Exhibit A and Exhibit B respectively.
In support of grounds 2 and 3, it was submitted that the prosecution’s failure to disclose the till records and Methadone book entries; the denial of adequate time for the defence to properly consider and answer this evidence; and the prosecution’s non-disclosure of records relating to other staff members’ till transactions; occasioned a substantial miscarriage of justice.
Although the common law did not always recognise that the accused had a right to — and the prosecution had a duty to provide — disclosure,[11] adequate disclosure of the prosecution case to the accused is these days an assumed and fundamental aspect of criminal litigation. That a person charged with a crime is entitled to know the basis of the prosecution case against him or her is now regarded as axiomatic, notwithstanding that the need for disclosure might be seen to be a relatively modern feature of the criminal trial.[12] Indeed, s 185(2) of the Criminal Procedure Act 2009 recognises that the prosecution has a continuing obligation to disclose any relevant information, document or thing coming into the possession of the prosecution, as soon as practicable after ‘the information, document or thing comes into the possession of the prosecution’.[13]
[11]So much might be gleaned from R v Holland (1792) 100 ER 1248.
[12]For a discussion of the development of the requirements of disclosure in criminal cases, see David Plater, ‘The Development of the Prosecutor’s Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice?’ (2006) 25 The University of Tasmania Law Review 111. See also Sobh v Police Force of Victoria [1994] 1 VR 41.
[13]See also Criminal Procedure Act 2009 ss 1(c), 42, 111, 188, 416.
Given the pre-trial history described above, it could not legitimately be contended that the prosecution had failed in its duty to disclose the computer records in a timely fashion. As to the Methadone book, the defence had been on notice of its evidentiary significance since at least July 2015 and could readily have requested its production well ahead of the trial. No explanation was provided to this Court as to why that had not been done, nor as to why the computer records supplied to the defence in 2014 and 2015 were not drawn to the attention of the new trial counsel who were briefed following their predecessor’s death.[14]
[14]We note in that regard that the same solicitor acted for the applicant, and instructed counsel on his behalf, at the committal in 2014, the initial hearing on 6 July 2015 and the trial in October 2017.
In any event, although trial counsel only seems to have first sighted the computer records and the Methadone book entries on 20 October 2017, the entries are easily capable of being correlated with the 59 transactions depicted in the CCTV footage, Exhibit C, without much effort. The records were, in any event, explained in Mr Szwarcbard’s statement of 23 October 2017. Their production, therefore, three days prior to the empanelment of the jury, cannot have caused justice to miscarry. In our view, the time available between the production of the computer records (and the Methadone book) and the empanelment of the jury was more than adequate for counsel to grasp the significance and import of the records, take appropriate instructions from the applicant and prepare such response as was available.[15] Certainly, no miscarriage of justice flowed from the documents being provided to counsel at the time that they were.
[15]See, eg, R v McGill [1967] VR 683, 685; R v Wright (2012) 221 A Crim R 536.
Moreover, so far as the supposed failure of the prosecution to provide the computer records relating to other staff members’ till transactions is concerned, it must be borne steadily in mind that the prosecution’s duty of disclosure relates only to material which can be seen on a sensible appraisal by the prosecution to be relevant (or possibly relevant) to an issue in the case; to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to either of these matters.[16]
[16]R v Spiteri (2004) 61 NSWLR 369, 373–4 [17]; R v Farquharson (2009) 26 VR 410, 464 [213]; R v Keane [1994] 1 WLR 746, 752.
We are unable to see how computer records relating to the transactions of the other employees could have had any possible bearing on an issue joined between the prosecution and the applicant. As far as we can see, such records would have been wholly irrelevant. They could not have shed any light on the applicant’s assertions that he would sometimes provide change to the shop assistants and reimburse himself from the till, or that he would on occasion place money into the front till.
Grounds 2 and 3 cannot be made out.
Conclusion
None of the grounds has merit.
Leave to appeal against conviction must be refused.
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