Police v Dorizzi No 2 No. Scciv-01-1270

[2002] SASC 121

POLICE v DORIZZI No 2

[2002] SASC 121

ex tempore

1. Gray J     On 15 March 2002 I delivered judgment allowing an appeal from a dismissal of an information by a magistrate. Mr Dorizzi, one of the respondents to that appeal, has sought leave to appeal from my decision. The other respondents have not sought leave. The applicant was represented by counsel on the hearing of the appeal. On the application for leave, he appeared in person.

2. A further appeal may not be brought unless leave to appeal is obtained from the judge who made the decision under appeal or from the Full Court. The principles that guide the court on such an application are well settled.

   “The court’s practice has been to grant leave to appeal only if a question of general principle arises, and usually the court considers also whether there is reason to doubt the correctness of the decision under consideration. However, in the end the court must act as the interests of justice may require.”

3. The applicant seeks to advance an argument that the machinery used to play the videotape evidence (“the video player”) on appeal, was superior to that used at the hearing before the magistrate. On appeal, the quality of the images displayed was improved or enhanced.  It is accepted by the Crown that this was so.

4. The magistrate, as identified in my reasons[1] made a number of errors of law and mixed law and of mixed fact, unrelated to the issues of the quality of the film.  As a consequence of those errors, I set aside the orders of the magistrate. The enhanced quality of the image was not a relevant matter to the errors identified. I then reconsidered the exercise of discretion concerning the admissibility of the video tapes. In doing so, I had regard to the video tapes as displayed before me. I formed the view that the video tapes were relevant, probative and admissible. I saw no reason to exclude the video tapes as a matter of discretion.

   [1] Police v Dorizzi, Sklifoff, Hill & Mcbeath [2002] SASC 82 delivered 15 March

5. A subpoena was directed to the South Australian Police to produce documents. It was said these documents would demonstrate that the video player used to display the video to the magistrate was different to that used in the appeal, leading to enhanced or improved quality of the image.  However this is not in issue. As earlier observed, the Crown accepted this to be correct.

6. The Crown have advised that the South Australian Police hold none of the documents the subject of the subpoena. It is said that if they exist, they exist in the hands of Chubb Security.

7. Further, it is said that as there is no issue that the quality of the images shown to the magistrate was inferior to that shown on the appeal, the material sought to be subpoenaed is of no relevance.  I agree.

8. The applicant complained that counsel for the Crown deliberately misled this Court on the hearing of the appeal, by concealing that a different video player was being used to display the video.  It was said that the Crown did not disclose that images of enhanced quality were being produced.

9. In the course of the hearing of the appeal, it became clear that the quality of the videotape being viewed was superior to those shown to the magistrate. At the time this was accepted by counsel for all parties. Counsel then appearing for Mr Dorizzi made no allegation or complaint that the Crown had misled the court. I do not consider that I was misled. I reject the submission. I consider it to be without substance.

10. The proposed grounds of appeal do not raise any matter of general importance. I see no reason to doubt the correctness of the decision. The interests of justice do not require a grant of leave. The application for leave to appeal is dismissed.

    LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

    1 Police v Dorizzi, Sklifoff, Hill & Mcbeath [2002] SASC 82 delivered 15 March