Police v M, M
[2012] SASC 83
•29 May 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v M, M
[2012] SASC 83
Judgment of The Honourable Justice White
29 May 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - NATURE OF APPEAL
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - OTHER CASES
EVIDENCE - MECHANICAL RECORDS
Respondent charged with performing a grossly indecent act in a public place - Magistrate dismissed complaint following submissions at conclusion of prosecution opening and without hearing evidence.
Crown appeal against dismissal - whether Magistrate erred in law in dismissing the complaint by failing to comply with ss 68 and 69 of Summary Procedure Act 1921 (SA) (SPA) - whether Magistrate erred in failing to consider the evidence sought to be adduced by the prosecution - whether appeal competent.
Held: appeal allowed - Magistrate's order of dismissal and order of costs set aside - matter remitted to Magistrates Court for hearing - Magistrate failed to comply with ss 68 and 69 of SPA by failing to hear the evidence sought to be adduced by the prosecution - appeal competent.
Magistrates Court Act 1991 (SA) s 42; Summary Offences Act 1953 (SA) s 23; Summary Procedure Act 1921 (SA) s 64, s 68, s 69; Magistrates Court Rules 1992 (SA) r 8.08, referred to.
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; McIlvar v Szwarcbord (2008) 256 LSJS 264; Police v DiGeronimo (1997) LSJS 362; Police v Dorizzi (2002) 84 SASR 493; Police v Long [2004] SASC 381; Police v Slater (2003) 86 SASR 189; R v Chen (1993) 2 VR 139; R v Maqsud Ali [1966] 1 QB 668; R v Robson (1972) 2 All ER 699; Smith v The Queen (2001) 206 CLR 650; WorkCover Corporation v Camarinha [1999] SASC 390, considered.
POLICE v M, M
[2012] SASC 83Magistrates Appeal
WHITE J. The respondent was charged with the offence of performing a grossly indecent act in a public place, contrary to s 23(2) of the Summary Offences Act 1953 (SA). The prosecution alleged that the offence was committed at about 5.30 am on 5 December 2010 on the Festival Plaza.
The respondent’s trial commenced on Monday 20 February 2012. Following submissions at the conclusion of the prosecution opening and his refusal of a prosecution application for an adjournment, the Magistrate dismissed the complaint. He did so without hearing any evidence in the trial or in a voir dire, and without any forewarning to the parties that the dismissal of the complaint at that stage was a possibility.
The police now appeal against that dismissal. The sole ground of appeal is that the Magistrate erred in law in dismissing the complaint, because he had failed to comply with the mandatory requirements of ss 68 and 69 of the Summary Procedure Act 1921 (SA) (SPA).
Background
The principal evidence on which the prosecution intended relying at the trial was CCTV footage said to have been taken by a camera at the Skycity Casino. In his opening, the prosecutor outlined that two police officers, Snr Constable Walker and Constable Barile, would give evidence that on 5 December 2010 they had spoken to the respondent at the Festival Plaza, near to the Casino, regarding her alleged conduct. On the following day they had gone to the Casino and had been shown, by a Mr Anderson, some CCTV footage of the alleged conduct. In their presence, Mr Anderson made a copy of the footage and handed it (apparently in DVD form) to Snr Constable Walker. It was that footage which the prosecutor wished to tender at the trial.
The prosecutor outlined in general terms the content of the footage. He also indicated that he would be asking the Magistrate to undertake a view of the relevant area of the Festival Plaza.
The prosecutor informed the Magistrate that he was not in a position to call Mr Anderson at the trial because he was interstate. He foreshadowed a submission that the evidence of the two police officers, together with the content of the CCTV footage itself, would be sufficient to prove its authenticity.
There then followed some submissions by both parties about the absence of Mr Anderson and the respondent’s requirement for the “provenance” of the CCTV footage to be properly established. In the course of her submissions, the respondent’s counsel made the following points:
1. The respondent had expected Mr Anderson to be called.
2.The prosecutor had been put on notice one or two weeks previously that the CCTV footage was not agreed; that the prosecution should adduce proper proof of it; that the respondent maintained that position; and that she would object to the tender of the footage without proper proof of its provenance and authenticity.
3.Even if Mr Anderson was called, his evidence may not be sufficient to prove the provenance and authenticity of the CCTV footage.
4.The respondent was shown in the footage but would submit that the CCTV footage showed two men sexually assaulting her and then decamping before the arrival of the police.
5.On their arrival, the two police officers had immediately accused the respondent of committing an offence and had not made any investigation of the two men shown in the footage.
6.The respondent’s husband had arrived at the Plaza to find her semi-naked and in a distressed condition.
7.That the contents of the footage were “disgusting” but, contrary to the prosecution case, were of “a sexual assault by two men upon a woman who had had her drink spiked”.
8.That the respondent had that morning provided the prosecution with an expert report regarding “drink spiking”.
The points made by the prosecutor included the following:
1.The images in the CCTV footage were inconsistent with the respondent having been the victim of a sexual assault.
2.Mr Anderson had been informed by notice shortly after 25 November 2011 of the trial date, and of the requirement for him to attend to give evidence.
3.An addendum statement had been obtained from Mr Anderson on 27 December 2011 and signed by him on 22 January 2012.
4.A summons (apparently a subpoena) had been issued to Mr Anderson on 6 December 2011, although the prosecutor was not in a position to prove service of that summons.
5.The police had recently been informed that Mr Anderson was taking a week’s leave and would not be available
6.He considered that the evidence of the police officers (who would identify themselves on the CCTV footage) and the CCTV footage itself would establish the provenance of the footage.
7.He had taken over the conduct of the prosecution within a few days of the commencement of the trial, following the sickness of the prosecutor who had had the carriage of the matter, and that he had first learnt of Mr Anderson’s unavailability only two working days before the trial was to commence.
The Magistrate then said that he was “prepared to rule” that, in the absence of any admission by the respondent, the prosecution could not prove the provenance and authenticity of the CCTV footage by “a method of police review [of] a video [which] showed their presence after the event”. The Magistrate also told the prosecutor that he was “disinclined” to admit the CCTV footage subject to objection. These statements, which were regarded by the parties as rulings, were made without the Magistrate viewing the CCTV footage.
The prosecutor then applied for an adjournment of the hearing in order to secure the attendance of Mr Anderson. At one stage, the Magistrate told the prosecutor that if he could prove service of the subpoena on Mr Anderson and his non‑compliance, he would issue a warrant. The prosecutor was not in the position there and then to provide that proof. He referred again to the sickness of the prosecutor who had previously had the carriage of the matter and the shortness of time in which he himself had been involved.
The respondent’s counsel objected to the grant of an adjournment, referring to the distress which the prosecution was causing the respondent and to an intimation from the previous prosecutor that she was having difficulty identifying the operator of the CCTV camera which had taken the footage.
The following interchange occurred between the Magistrate and the prosecutor:
His Honour: You’re not in a position to prove your case today?
Prosecutor: Certainly not on that ruling your Honour.
His Honour: Well, that ruling is inevitable I think.
The Magistrate then made the decision dismissing the matter saying:
[T]his is one of those matters where I need to balance the interests of justice against caseflow management principles. In this instance caseflow management wins. I decline to adjourn the trial. The prosecution are not in a position to prove their case. The matter is dismissed.
The Magistrate then went on to make a costs order in favour of the respondent.
It can be seen that the Magistrate dismissed the matter immediately after his refusal of the adjournment and without giving the prosecutor an opportunity to make any further submissions, or to lead such evidence as the prosecutor did have available, and without the prosecution closing its case. It is also to be noted that the respondent’s counsel had not made any submissions seeking the dismissal of the matter.
Consideration
The appellant submits that the course adopted by the Magistrate is not authorised by the SPA. Sections 64, 68 and 69 are pertinent presently. Section 64 requires the Magistrates Court, if both parties appear before it, to proceed to hear and determine the matter of the complaint. Section 68 provides for the procedure when a defendant enters a plea of not guilty:
(1)If the defendant does not admit the truth of the complaint the court shall proceed to hear—
(a) the complainant and his witnesses and any other evidence which he adduces in support of his complaint; and
(b) the defendant and his witnesses and any other evidence which he adduces in his defence; and
(c) any evidence which the complainant adduces in reply if the defendant adduces any evidence other than as to his, the defendant's, general character.
(2)Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath.
(3)The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.
It can be seen that the effect of s 68(1) is to require the Magistrates Court, following a not guilty plea, to hear such evidence and submissions as each party wishes to present. Section 69 provides for what is to occur next:
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.
Thus, s 69 contemplates that after the parties and their evidence have been heard the Court will consider and determine the complaint, and either find the charge proved or dismiss the complaint, as the case may require.
As Besanko J observed in Police v Long,[1] the procedure laid down in ss 68 and 69 is mandatory. The procedure is clear and it is important that it be followed.[2]
[1] [2004] SASC 381.
[2] Ibid at [23].
Failure to Comply with ss 68 and 69
In the present case, although some submissions were made by each party, the Magistrate did not hear the evidence which the prosecution wished to adduce and which it had available. Instead, he proceeded to dismiss the complaint without any forewarning to either party that he was contemplating that step and, accordingly, without any opportunity for either to be heard. The prosecutor had not indicated that he would be tendering no evidence, or that he was abandoning the prosecution, or that he accepted that the complaint should be dismissed. At its highest, the prosecutor had done no more than acknowledge the effect of the ruling which the Magistrate had given.
The way in which the Magistrate proceeded was equivalent to a finding of no case to answer before he had heard the evidence on which such a ruling could be based. Such a course, when the ruling is necessarily dependent on an evaluation of evidence, is not authorised by ss 68 and 69 of the SPA – see Police v DiGeronimo.[3]
[3] (1997) 192 LSJS 362.
Rule 8.08 of the Magistrates Court Rules 1992 provides as follows:
Where there is time default or the conduct of a party is otherwise contrary to the objects stated in Rule 8.02 the Court may dismiss the proceedings and may do so in order to protect the integrity of the caseflow management system and to implement the Court’s requirements that matters proceed at the time fixed for hearing whether by way of trial or otherwise notwithstanding that any injustice to the opposing party might have been avoided by an order for costs or some other order.
However, this rule and the considerations of caseflow management which it reflects, did not justify the Magistrate proceeding in the way which he did. As was observed by Perry J in Police v Slater,[4] and by Besanko J in Police v Long,[5] a rule of court cannot vary the procedure laid down in the SPA.
[4] [2003] SASC 284 at [23]; (2003) 86 SASR 189 at 193.
[5] [2004] SASC 381 at [24].
The Admissibility of the CCTV Footage
Video footage, like a tape recording, is an admissible form of evidence. In the case of audio footage, the tape is admissible as evidence of the sounds or conversations recorded on it: Butera v Director of Public Prosecutions (Vic).[6]In that case, after referring to the value of the tape as the best evidence of the conversation, Mason CJ, Brennan and Deane JJ went on to say:
That is not say that the tape is itself the admissible evidence of what is recorded on it. A tape is not by itself an admissible object for by itself it is incapable of proving what is recorded on it: it is admissible only because it is capable of being used to prove what is recorded on it by being played over. By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, aurally received, which is admissible to prove the relevant fact.[7]
Later, Mason CJ, Brennan and Deane JJ said:
But it is not the tape, it is the sounds produced by playing it over, which is the evidence admitted to prove what is recorded. The tape is part of the machinery by which that evidence is produced.[8]
[6] (1987) 164 CLR 180.
[7] Ibid at 185-6.
[8] Ibid at 186.
The parties’ submissions did not address the question of whether this view of the nature of the evidence should also be applied to video tape footage. In what follows, I will assume that it does.
It was not necessary for the High Court in Butera to consider the conditions of admissibility of an audio tape but Mason CJ, Brennan and Deane JJ did observe:
[I]t is obvious that the provenance of the tape recording must be satisfactorily established before it is played to the jury.[9]
This seems to imply that the Court must be satisfied of the provenance of an audio or video tape before it admits the tape into evidence.
[9] Ibid at 184.
The Court of Appeal in R v Maqsud Ali[10] recognised the difficulties in laying down exhaustive rules by which the admissibility of evidence of audio tapes may be determined, saying that an assessment had to be made in the light of all the circumstances existing in each case.[11]
[10] [1966] 1 QB 668.
[11] Ibid at 701.
The Court of Criminal Appeal in Victoria took a similar view in R v Chen, saying “the law is not so inflexible as to require the fulfilment of the same conditions in every case before a tape may be played and the sounds received in evidence”.[12] Later, the Court said:
The test is whether there is sufficient material before the court to allow the tribunal of fact acting reasonably to conclude that the recorded sounds reproduce those originally made by the persons identified by the evidence. In other words, there must be evidence, which the tribunal of fact is entitled to accept, that the recording is of a conversation which occurred and which would be admissible if proved by oral testimony. In our opinion, admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.[13]
[12] (1993) 2 VR 139 at 148.
[13] Ibid at 150.
The difficulties which exist in relation to audiotapes do not apply, or do not apply to the same extent, in a case of video tapes. In the case of audio tapes, the identity of the voice recorded on the tape will normally have to be the subject of proof which is independent of, and external to, the tape itself, whereas in the case of a video tape, the Court may be able to determine readily for itself that it is the defendant who is depicted on it. That proposition is implicit in the decision of the High Court in Smith v The Queen[14] in which the evidence of two police officers, who had previously dealt with the accused, that the accused was one of the robbers depicted in security camera photographs was held inadmissible. That was because the police officers were in no better position than the jury itself to make a comparison between the accused and the person shown in the photographs.
[14] [2001] HCA 50; (2001) 206 CLR 650.
The word “provenance” is usually understood as a reference to the source or origin of an object. However, in the present context, the word has a slightly different connotation, involving notions of authenticity, accuracy and integrity. They are the matters with which a court considering the reception of a video tape will ordinarily be concerned. Proof of the source or origin of the video tape may be an important aspect of the proof of those matters. Thus in Butera, Mason CJ, Brennan and Deane JJ spoke of the proof of a conversation “by tendering the tape recording and, one assumes, proving the circumstances in which the recording had been made and the custody in which the recording had been kept until it was played to the court at the trial”.[15]
[15] (1987) 164 CLR 180 at 184.
Similarly, in R v Robson[16] Shaw J said:
In the first stage, when the question is solely that of admissibility – ie, is the evidence competent to be considered by the jury at all? – the judge, it seems to me, would be usurping [the jury’s] function if he purported to deal with not merely the primary issue of admissibility but with what is the ultimate issue of cogency. My own view is that in considering that limited question the judge is required to do no more than to satisfy himself that a prima facie case of originality has been made out by evidence which defines and describes the provenance and history of the recordings up to the moment of production in Court. If that evidence appears to remain intact after cross‑examination it is not incumbent on him to hear and weigh other evidence which might controvert the prima facie case.[17]
Later, Shaw J said:
I ought to conduct a comprehensive enquiry into not only the history of the tapes but also their nature and condition and that for this purpose I should hear evidence on both sides and decide the question on the balance of probabilities in the light of all the material before me.[18]
[16] (1972) 2 All ER 699.
[17] Ibid at 701.
[18] Ibid.
In the case of video tape, there is no reason in principle why a court may not be able to determine its admissibility in part by the inferences which can be drawn from the tape itself as to its authenticity, accuracy and integrity. Much will depend on the circumstances, including evidence as to the source of the tape and any acknowledgements made by the defendant. In most cases, a viewing of the video tape will be a natural place to commence a consideration of whether a video tape shows signs of tampering or discontinuities which may raise questions about its authenticity, accuracy and integrity.
The essential issues in the trial in the present case were whether a person had engaged in an act of gross indecency on the Festival Plaza, which was undoubtedly a public place and, if so, whether that person was the respondent. Given the prosecution’s reliance on the CCTV footage, it had to satisfy the Court that the footage was authentic and an accurate depiction of what had occurred.
In addition to the foreshadowed evidence that the CCTV footage had been obtained by the police officers from a person at the Skycity Casino, the Magistrate had acknowledgements by the respondent’s counsel that she (the respondent) was shown in the CCTV footage in the incident upon which the prosecution relied. The Magistrate also had an acknowledgement that the conduct shown on the video was “disgusting”. The prosecutor had also informed the Magistrate in opening that the two police officers who were to give evidence were depicted in the video speaking to the respondent following the incident alleged. It was, as I understood it, common ground that the CCTV footage had recorded on it a date and time counter. Thus, inferences about the date and continuity of the film could be drawn from the CCTV footage itself and from the evidence of the police officers about their own movements.
The Festival Plaza is a well‑known public place with a number of distinctive features. It is not known whether any of those features are depicted in the CCTV footage, but their presence or absence would also bear upon an assessment of the authenticity of the footage.
Finally, the submissions of the respondent’s counsel before the Magistrate indicated that the issue was not whether the CCTV contained an accurate depiction of the respondent’s conduct, but whether that conduct was conscious and voluntary.
Senior counsel for the respondent submitted that it had been open to the Magistrate to rule against the admissibility of the CCTV footage without hearing any evidence and without viewing the footage, because of the “complete absence” of proposed evidence about what was being filmed, why the tape started at the time that it did, how the CCTV camera was being manipulated during the filming, and whether there were other cameras with footage of the incident which had not been seized by the police. Counsel referred to the chain of evidence discussed by Gray J in Police v Dorizzi[19] in relation to proof of CCTV footage as illustrative of the kind of evidence which is required.
[19] [2002] SASC 82; (2002) 84 SASR 403.
The respondent’s acknowledgements and the content of the CCTV footage itself meant that there was not a “complete absence” of material about what was being filmed. The other matters had little, if any, bearing on the accuracy and integrity of the film.
As already indicated, there is no inflexible rule to the effect that the manner of taking of CCTV footage must always be proved before that footage becomes admissible. Nor is there an inflexible rule that any possibility of tampering with a film be excluded before it can be admitted. Account must be taken of the particular circumstances of each case. In this case, those circumstances included the features to which I have just referred, and in particular the respondent’s acknowledgement that she was shown in the film on the Festival Plaza in a “disgusting” act. That being so, the absence of evidence from the Skycity Casino as to the means by which the CCTV footage was taken, and of the circumstances in which it was held during the 24 hours or so before the police took their copy was not decisive. The absence of evidence about those matters was something which the Magistrate had to consider in relation to issues of authenticity, accuracy and integrity but could not reasonably be regarded as decisive of them.
I note that the existence of a period during which it was possible for there to have been some tampering with a video tape did not exclude the admission of the tape in Police v Dorizzi.[20] In relation to that possibility Gray J observed:
The evidence established that the tapes were on Mr Miller's desk when he arrived at work on the Monday. In the absence of any evidence to suggest any form of interference or tampering it was reasonable to infer that his instruction that the tapes be placed on his desk had been followed. The magistrate was in error in placing emphasis on what he described as the "opportunity for contamination".[21]
The decision in Dorizzi contradicts the respondent’s submission that, as a matter of principle, it was necessary in all cases for the prosecution to prove a chain of custody of the CCTV footage so as to exclude the possibility of tampering.
[20] Ibid.
[21] Ibid at [23]; 409.
At least on the material known to this Court, the circumstances of this case are very different from those considered by Mullighan J in WorkCover Corporation v Camarinha.[22] In that case, the video tape had been subject to obvious and admitted editing “by an untrustworthy person with a motive to present the most damaging depiction of the respondent as possible”.[23] In contrast, the evidence proposed to be led by the prosecution in this case suggested that the CCTV footage had been obtained from an enterprise which is itself subject to considerable regulatory scrutiny, and which may be expected in the normal course of its business, to have CCTV footage of incidents occurring in and about its environs.
[22] [1999] SASC 390.
[23] Ibid at [19].
The Magistrate erred by not considering the evidence which the prosecution wished to adduce. He did so because he failed to discharge the obligations imposed on him by ss 68 and 69 of the SPA. At the very least, the Magistrate should have considered the admissibility of the CCTV footage on a voir dire after viewing the footage and considering the other evidence which the police called to support its tender.
Given my conclusion on this aspect of the matter, it is not necessary to consider the consequences of the Magistrate having proceeded immediately to dismiss the appeal following his refusal of the prosecution application for an adjournment without giving the parties the opportunity to make any further submissions.
The Competence of the Appeal
Senior counsel for the respondent submitted that the present appeal is incompetent because it is, in substance, an appeal against the Magistrate’s ruling on the admissibility of evidence.[24] She referred to the line of authority indicating that a ruling about the admissibility of evidence is not a “judgment” in respect of which a right of appeal is granted by s 42 of the Magistrates Court Act 1991 (SA).[25]
[24] Police v Dorizzi [2002] SASC 356 at [20]; (2002) 84 SASR 416 at 420.
[25] Ibid. See also McIlvar v Szwarcbord (2008) 256 LSJS 264 and the authorities referred to therein.
I do not consider that this characterisation of the appeal is appropriate. Unlike the circumstances considered in Police v Dorizzi, this is not a case in which the prosecutor tendered no evidence or otherwise invited the dismissal of the complaint with a view to testing an evidentiary ruling. As already indicated, the prosecutor was not given an opportunity to adduce such evidence as he did have available, nor was he forewarned by the Magistrate that dismissal of the complaint was in contemplation.
Conclusion
For the reasons given above, I allow the appeal. I set aside the order of the dismissal and the order of costs made by the Magistrate on 20 February 2012 and I remit the matter to the Magistrates Court for hearing before another Magistrate. I will hear the parties as to costs.
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