Odegaard v Godfrey

[2013] TASSC 55

[2013] TASSC 55

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Odegaard v Godfrey [2013] TASSC 55

PARTIES:  ODEGAARD, Peter Thomas
  v
  GODFREY, Constable Jessica Maree

RYAN, Sergeant Patrick Lawrence

FILE NO:  568/2013
DELIVERED ON:  30 September 2013
DELIVERED AT:  Hobart
HEARING DATE:  19 September 2013
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Procedure – Disclosure obligations – Application for provision of copy of surveillance footage where defendant and his lawyer offered opportunity to view - Denial of procedural fairness?

Mallard v R (2005) 224 CLR 125; R v Tennent, ex parte Henderson [2001] TASSC 14, referred to.
Right to Information Act2009 (Tas), s18.
Aust Dig Criminal Law [3085]

REPRESENTATION:

Counsel:
             Applicant:                   S G Wright
             Respondent:              S Nicholson
Solicitors:
             Applicant:                   Wright Gilmour
             Respondent:              Director of Public Prosecutions

Judgment Number:  [2013] TASSC 55
Number of paragraphs:  16

Serial No 55/2013
File No 568/2013

PETER THOMAS ODEGAARD v CONSTABLE JESSICA MAREE GODFREY and SERGEANT PATRICK LAWRENCE RYAN

REASONS FOR JUDGMENT  TENNENT J

30 September 2013

1. The applicant is awaiting trial in the Magistrates Court in respect of offences alleged to have been committed under fisheries legislation. A hearing date was allocated. Shortly prior to that date, counsel for the applicant applied to a magistrate sitting in Burnie for an order that, by way of disclosure, the prosecution service provide to him a copy of some surveillance footage taken by authorities using a mobile phone. This application followed an on-going dispute between counsel and the prosecution service in relation to the issue. The prosecution service maintained it had no obligation, as part of disclosure, to make available a copy of the footage, and that it was sufficient compliance with any disclosure requirements if it disclosed the existence of the material, and afforded the applicant and his counsel an opportunity to view it. Counsel for the applicant maintained this did not accord procedural fairness to the applicant, and in effect denied him a fair trial.

1. In the north- west of Tasmania, the prosecution service is based in Ulverstone. The applicant's counsel's office is in Burnie. The relevant prosecutor in this matter offered to bring the footage from Ulverstone to Burnie and to make available facilities at the Burnie Police Station to enable the applicant and his lawyer to view the footage. Apart from some rhetoric from counsel for the applicant before the learned magistrate, there was no serious suggestion that the applicant and his lawyer would not be afforded an opportunity to use a secure room at the police station, and there watch the footage as often as they wished and communicate as necessary for instructions to be given.

1. Notwithstanding the above, counsel for the applicant made the application to a magistrate. The learned magistrate heard submissions in relation to the application, and reserved his decision overnight. The next day he gave reasons, and refused the application. The applicant now seeks a review of that decision. The grounds of review are as follows:

"1.The learned Magistrate erred in law, in not ordering Western District Prosecution to provide an electronic copy of the surveillance footage prior to the hearing of the matter, to ensure that the Applicant received procedural fairness, and would be afforded a fair Trial.

2.The learned Magistrate erred in law and in fact in determining that it was sufficient compliance with the Prosecutorial Duty of Disclosure, to make available evidence, being surveillance footage, for viewing at the Police Station, denying the Applicant the opportunity to forensically examine the relevant footage."

1. Counsel for the applicant submitted, in effect, that the prosecution service had an obligation to provide a copy of the surveillance footage to him, and that the learned magistrate made an error in failing to order it do so. He did not suggest that there is any statutory basis for that obligation. As I understand the submissions, the obligation arises from the need to ensure that the applicant has a fair trial, and is not denied procedural fairness prior to any such trial. For the grounds of review to succeed, the Court would first need to be satisfied that the obligation on the basis identified exists.

1. Before dealing with the matter generally, I will comment on two matters arising from some terms used in the grounds of review. The first relates to the term "Prosecutorial Duty of Disclosure". When I first read the ground, I inferred that counsel was referring to a document with that title. An enquiry of counsel during the hearing revealed that there was no such document, and that what was being referred to was that duty in general. Counsel did however refer to an extract from the police manual which was evidently handed to the learned magistrate but was not in the Court papers. He did not suggest that contained a segment entitled "Prosecutorial Duty of Disclosure" and made no submissions by reference to it. I was provided with a copy following the hearing.

1. The second matter relates to the reference to being able to "forensically examine" the footage. Counsel confirmed that there was no suggestion the footage itself was not genuine. What he meant by the term was an opportunity to watch the footage, more than once if necessary, for the purpose of considering all aspects of it and taking instructions as to those.

1. Counsel for the applicant relied principally on two authorities. These were Mallard v R (2005) 224 CLR 125 and R v Tennent, ex parte Hendersen [2001] TASSC 14. As to the second of those authorities, it was relied upon to support a contention that a magistrate has the power to ensure an accused person has a fair trial, and is provided with procedural fairness in any proceedings prior to trial. In that case, I, then a magistrate, refused to make an order requiring prosecuting authorities to provide certain material to the accused. My decision was reviewed by this Court, and upheld. It should be noted that the charges there under consideration were indictable matters, and the decision was made against a background that an accused was required in the Magistrates Court to make an election and that, to a degree, different considerations applied. The issue of procedural fairness was raised in the hearing on review as an argument by the applicant in that matter, and I note the term was also used in the catchwords. At par[12] Blow J (as he then was) said:

"Procedural fairness could be afforded to a defendant in such circumstances simply by adjourning the proceedings."

However, that statement appeared in a paragraph where his Honour was simply canvassing possibilities as to what a magistrate might be able to do. The decision is not authority for the proposition put by counsel here.

1. However, having said that, judicial officers do, generally, have an obligation to ensure that procedural fairness is accorded to an accused. With respect however, whether the learned magistrate in this case had the power to ensure that the applicant was not denied procedural fairness, was not the issue with which he was dealing. The issue related to what counsel for the applicant submits that obligation required the learned magistrate to do. That was, order the prosecution service to make a copy of the surveillance footage available.

1. The refusal of the prosecution service to provide a copy of the surveillance footage was the only basis for any argument that the applicant might be denied a fair trial and had been denied procedural fairness prior to trial. Beyond that bald assertion however, counsel did not identify how that refusal to provide a copy of the footage amounted to such denials, particularly against the background that the prosecution service had disclosed the existence of the evidence, the applicant and his counsel knew generally where and when the footage had been taken, the applicant and his lawyer had been provided with copies of still photographs taken at or about the same time, and the applicant and his lawyer had been offered arrangements to view the footage. Those arrangements included the availability of a secure room where the applicant and his counsel could watch the footage in privacy, and where the applicant could give any necessary instructions to his counsel. There has been no suggestion that the applicant and his counsel would be restricted to one viewing only. There was no reason advanced as to why the offer made was unsuitable other than some defendants did not like the environment of a police station. It was not suggested that the applicant had any particular problem of this nature.

1. The case of Mallard (above) was relied on by counsel as authority for the proposition that there is a common law duty which requires prosecuting authorities to disclose all relevant evidence to the accused. I do not cavil with that proposition. The case is not however authority for the proposition that compliance with such an obligation necessarily includes the provision of copies of all material to an accused. Counsel for the applicant also referred in the course of his submissions, but without having provided a copy, to the decision of Grey v R (2001) 184 ALR 593, to which the court in Mallard referred at par[17]. Counsel did not rely on any particular part of that case. Suffice to say, I have looked at Grey's case. While it relates to the issue of non-disclosure of evidence by prosecuting authorities, it does not relate to a situation where disclosure of the existence of particular evidence has been made and there is an argument about the form in which it will be provided to the defence.

1. Counsel for the applicant submitted that, given the ease with which the footage could be copied, and that there is no sensitive material in it, the prosecution service had a duty to provide a copy. With respect, that might be a common sense approach to the situation, but it does not assist in determining the legal obligation of the prosecution service or the power of the learned magistrate.

1. Counsel also submitted that, before the learned magistrate, the prosecutor had relied on the Freedom of Information Act 1991. He further submitted that that Act:

"…does not or should not apply to matters involving criminal prosecution and doesn't abrogate the duty at common law for disclosure and for the Defendant to be afforded procedural fairness..."

With respect, the prosecutor did not refer to that Act. He referred to the Right to Information Act 2009 by which the Freedom of Information Act was repealed. The newer Act does apply in circumstances such as these, as a reading of the Act would disclose. The prosecutor referred to s18(d) which provides that information may be provided:

"(d) in the case of information contained in a record from which sounds or visual images can be reproduced, by giving the applicant a reasonable opportunity to hear the sounds or view the images."

He submitted to the learned magistrate that he had complied with that requirement, and that that Act did not require him to copy the material.  Counsel for the applicant submitted orally that the Right to Information Act did not apply to criminal prosecutions. He provided no authority for that proposition. It is clearly wrong.

1. For the sake of completeness, I should also refer to the portion of the police manual which was provided to the learned magistrate. Clause 12.2 of the manual is entitled "Supply of Information". Clauses 12.2.1 and 12.2.5 are those which might be relevant. Neither places an obligation on the prosecution service to do what the applicant has requested.

1. The learned magistrate is asserted to have erred by failing to order the prosecution service to provide a copy of surveillance footage to ensure procedural fairness and a fair trial. With respect, the applicant has not satisfied the Court that any such failure either has, or could have, resulted in procedural unfairness, or a potentially unfair trial, and hence that the learned magistrate erred in failing to make the order sought.

1. It was also asserted that the learned magistrate erred in determining it was sufficient compliance with a duty of disclosure to make available the footage for viewing at the police station, and thus denying the applicant the opportunity to forensically examine it. With respect, the applicant has not established that compliance with a duty of disclosure required what he sought, or that he has in fact been denied any opportunity to watch the footage as many times as he wished and "forensically" examine it.

1. In all the circumstances, the notice to review should fail and it is dismissed.