SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MCLEOD
[2011] SASC 160
Judgment of The Honourable Justice Blue
4 October 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
A Magistrate dismissed the complaint against the respondent following an application made on the grounds that (1) the Police refused to provide particulars of the alleged offences and (2) CCTV footage had been over-written due to the conduct of the Police – the Police appeal from that decision – whether the Magistrate inter-mixed the grounds of the application and hence an application for dismissal with an application for permanent stay – whether particulars previously provided by the Police were adequate – whether the Police had refused to provide further particulars – whether dismissal was justified by the conduct of the Police concerning particulars – whether proceedings should have been stayed due to the loss of the CCTV footage – whether the Police were responsible for the loss.
Held: Appeal allowed – the Magistrate acted on a number of wrong principles – the Police had not refused to give further particulars – the particulars provided were not egregiously inadequate – the Police were partially responsible for the loss of the CCTV footage – no order of dismissal was justified on any grounds – further consideration of a permanent stay for abuse of process deferred to second stage of appeal.
Summary Offences Act 1935 (SA) s 7, s 74A, s 6; Summary Procedure Act 1921 (SA) s 181(2)(b); Magistrates Court Rules 1992 (SA) r 8.08, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23; Police v Pakrou (2008) 103 SASR 124; Police v Sherlock (2009) 103 SASR 147; Police v Slater (2003) 86 SASR 189; R v Edwards (2009) 83 ALJR 717; R v Littler (2001) 120 A Crim R 512, applied.
Hayes v Quinn (1992) 57 SASR 6; Johnson v Miller (1937) 59 CLR 467, distinguished.
Barrington v Austin [1939] SASR 130; Barton v The Queen (1980) 147 CLR 75; Carter v Hayes (1994) 61 SASR 451; Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; Connelly v Director of Public Prosecutions [1964] AC 1254; Duncombe-Wall v Police (1998) 197 LSJS 398; Fox v Percy (2003) 214 CLR 118; Haifawi v Police [2000] SASC 19; Holmden v Bitar (1987) 47 SASR 509; House v The King (1936) 55 CLR 499; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; Jones v The Queen (1997) 191 CLR 439; Lafitte v Samuels (1972) 3 SASR 1; Leonard v Morris (1975) 10 SASR 528; Lepadatu v Police [1999] SASC 400; Penney v The Queen (1998) 72 ALJR 1316; Police v A, TG [2006] SASC 299; Police…
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Details
- AGLC
- Police v McLeod [2011] SASC 160
- Case
- [2011] SASC 160
- Decision Date
CaseChat Overview and Summary
In Police v McLeod, the appellant, the Police, challenged a decision by a Magistrate to dismiss the complaint against the respondent, McLeod. The dismissal was based on two grounds: the Police's refusal to provide particulars of the alleged offences and the loss of CCTV footage due to the Police's conduct. The Police argued that the Magistrate had improperly combined these grounds, leading to an unjust dismissal. The court was required to determine if the Magistrate had correctly identified the issues and applied the appropriate legal principles in reaching his decision.
The primary legal issues in this appeal revolved around the adequacy of the particulars provided by the Police, whether they had refused to provide further particulars, and if the dismissal was justified by their conduct. Additionally, the court had to consider whether the proceedings should be stayed due to the loss of the CCTV footage and if the Police were responsible for its loss. The appeal court found that the Magistrate had acted on several incorrect principles. The particulars provided by the Police were not so inadequate as to warrant dismissal, and the Police were partially responsible for the loss of the CCTV footage. Consequently, no order of dismissal was justified on any grounds. The question of whether a permanent stay should be granted due to the abuse of process was deferred to a later stage of the appeal.
The appeal was allowed, and the Magistrate's decision to dismiss the complaint was set aside. The case was remitted for further consideration, particularly regarding the potential for a permanent stay due to the loss of the CCTV footage. This decision highlights the importance of the proper application of legal principles in criminal proceedings, especially concerning the provision of particulars and the preservation of evidence.
The primary legal issues in this appeal revolved around the adequacy of the particulars provided by the Police, whether they had refused to provide further particulars, and if the dismissal was justified by their conduct. Additionally, the court had to consider whether the proceedings should be stayed due to the loss of the CCTV footage and if the Police were responsible for its loss. The appeal court found that the Magistrate had acted on several incorrect principles. The particulars provided by the Police were not so inadequate as to warrant dismissal, and the Police were partially responsible for the loss of the CCTV footage. Consequently, no order of dismissal was justified on any grounds. The question of whether a permanent stay should be granted due to the abuse of process was deferred to a later stage of the appeal.
The appeal was allowed, and the Magistrate's decision to dismiss the complaint was set aside. The case was remitted for further consideration, particularly regarding the potential for a permanent stay due to the loss of the CCTV footage. This decision highlights the importance of the proper application of legal principles in criminal proceedings, especially concerning the provision of particulars and the preservation of evidence.
Orders
Orders of the court
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Background
Background to the litigation
The Police appeal against that dismissal.Facts The facts set out below are based upon the affidavit and uncontested submissions before the Magistrate and those affidavits not subject to objection before me.Events of 28 May 2010 On 28 May 2010 between 12.00am and 1.00am (“the night”), an incident occurred on the footpath on the western side of King William Street, Adelaide, in the vicinity of the Ambassadors Hotel at No. 107 and Bank SA branch at No. 97. Each of those premises had a closed circuit television camera system (“CCTV”). What occurred during the incident is contested, but it is common ground that in its first phase it included a “confrontation” (which I use in a neutral sense) between two men and Mr McLeod. According to affidavits provided in connection with the prosecution, two constables were driving south along King William Street when they saw the three men on the footpath on the opposite side of the road at a time when the confrontation had already started. The constables conducted a U‑turn, alighted from their vehicle and approached the men. One of the constables (“the lead constable”) then had a conversation with Mr McLeod in which he announced that he was a police officer, said that he had seen Mr McLeod commit an offence, required him to state his name and address, and informed him that, if he failed to give his name and address, he may be arrested. Mr McLeod failed to give these details. This is the second phase of the incident. The lead constable then informed Mr McLeod that he was under arrest and grabbed his right arm to handcuff him, at which point Mr McLeod attempted to swing back around and to move his right arm out of the constable’s grasp. Both constables then restrained Mr McLeod and handcuffed him. This is the third phase of the incident. Mr McLeod was taken to the Adelaide City Watchhouse and charged with basic assault, refusing to state his name and address, and resisting police. On 21 June 2010 Mr McLeod’s solicitor made a written request to the Police for a copy of the complaint and a summary of the allegations. This was responded to on 5 July 2010. On 5 July 2010, the complaint was issued against Mr McLeod. A charge of disorderly behaviour was laid in lieu of the original charge of assault.Investigations into CCTV Between July and October 2010, Mr McLeod made a series of enquiries to obtain a copy of the CCTV footage of the night. 1On 29 June 2010, Mr McLeod attended at the Ambassadors Hotel and requested a copy of the CCTV footage of the night. He was informed that it had been overwritten and was referred to Bank SA next door.2On 29 June 2010, Mr McLeod attended Bank SA and requested a copy of the CCTV footage of the night. He was informed that, for security reasons, the bank would only provide the footage to the police if a formal request was received by the bank from the police and that the bank only retained the footage for three months.3On 11 August 2010, Mr McLeod sent a letter to the Police requesting the police to obtain a copy of the CCTV footage from Bank SA in line with the bank’s policy. The importance of time was explained. A copy of the police notes from the scene was also requested.4On 1 September 2010, on an appearance in the Adelaide Magistrates Court, Mr McLeod informed the Magistrate of the matters concerning the CCTV footage. The Magistrate indicated to the Police that they should comply with the request before the pre-trial conference.5On 12 October 2010, Mr McLeod sent a second letter to the Police requesting additional materials (including CCTV footage from the City Watchhouse on the night) and reiterating his previous request. 6On 3 November 2010, the lead constable emailed a Westpac employee (responsible for both Westpac and Bank SA security) requesting the Bank SA CCTV footage. The original prosecutor was told by return email that day that Bank SA could not comply because footage was generally stored for a maximum of 90 days, which time had elapsed.7On 19 November 2010, the Police sent a letter to Mr McLeod enclosing affidavits by the two constables and one other participant in the confrontation (“the second participant”). He also enclosed the lead constable’s handwritten notes. He stated that CCTV footage from Bank SA and the City Watchhouse was no longer available.
Evidence
Evidence Before The Court
The second stage involves a balancing of the public interest in criminal proceedings being brought to trial against unfairness to the accused by reason of the loss of the evidence.[33] The following general propositions apply, although again every case must be considered on its merits and it is unwise to lay down rigid or universal rules.1There is a public interest that prosecutions be brought to trial and that the court not be denied jurisdiction to determine the matter on the merits.[34]2In general terms, the more important the evidence which has been lost, the greater the risk (likelihood and degree) of unfairness and hence the stronger the case for a permanent stay.[35]3In general terms, the more culpable the conduct of the prosecution responsible for the loss of the evidence, the stronger the case for a permanent stay.[36]4In general terms, the stronger the prosecution case on the relevant issue or issues, the lesser the risk of unfairness and hence the less strong the case for a permanent stay.[37]5In general terms, the more effective alternative methods (if any) of protection and redress to the defendant during the course of the trial vis à vis the lost evidence, the lesser the risk of unfairness and hence the less strong the case for a permanent stay.[38][33] Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 at 33 per Mason CJ; Walton v Gardner (1993) 177 CLR 378; [1993] HCA 77 at 395-396 per Mason CJ, Deane and Dawson JJ; Police v Sherlock (2009) 103 SASR 147 at [50] per Doyle CJ (Sulan and Kourakis JJ agreeing).[34] Jago v District Court (NSW) (1989) 168 CLR 23 at 33 per Mason CJ, 55-56 per Deane J, 71 per Toohey J, 76 per Gaudron J; Police v Pakrou (2008) 103 SASR 124 at [73] per Kourakis J quoted and endorsed in Police v Sherlock (2009) at [71] per Doyle CJ (Sulan and Kourakis JJ agreeing).[35] Police v Sherlock at [81], [87]-[90] per Doyle CJ (Sulan and Kourakis JJ agreeing).[36] Police v Pakrou at [72] per Kourakis J quoted and endorsed in Police v Sherlock at [71] and see also [88] per Doyle CJ (Sulan and Kourakis JJ agreeing).[37] Police v Pakrou at [71] per Kourakis J quoted and endorsed in Police v Sherlock at [71] and see also [88] per Doyle CJ (Sulan and Kourakis JJ agreeing).[38] Police v Pakrou at [60]-[62] per Kourakis J quoted and endorsed in Police v Sherlock at [71] and see also [86] per Doyle CJ (Sulan and Kourakis JJ agreeing).Relevance of lost evidence I turn now to the considerations I outlined in the first stage of questioning whether a permanent stay should be granted for lost evidence. On an application for a permanent stay due to the loss of evidence, it is necessary to assess the relevance of the lost evidence to the issues in the case and it is difficult to envisage a case in which a stay would be granted unless the evidence was relevant (and would have been admissible).[39][39] R v Ulman-Naruniec (2003) 143 A Crim R 531 at [37]-[42] per Bleby J; Police v Pakrou (2008) 103 SASR 124 at [74] per Kourakis J; Police v Sherlock (2009) 103 SASR 147 at [71], [81]-[88] per Doyle CJ (Sulan and Kourakis JJ agreeing).
Decision
Reasons for decision
Mr McLeod made written and oral submissions that:1the Police had refused to provide particulars (the reference to the police affidavits being insufficient because they were internally inconsistent, contradictory, vague and ambiguous), by reason of which the complaint should be dismissed under the principle identified in Johnson v Miller and Hayes v Quinn (Ground 1);2the Police’s actions in failing to recover the Bank SA CCTV footage after they had been put on notice of its existence by the letter of 11 August 2010 and of the timeframe within which recovery was necessary denied the possibility of a fair trial to Mr McLeod, by reason of which the complaint should be dismissed or permanently stayed under the principle identified in Barton v The Queen,[3] Jones v The Queen,[4] R v Reeves[5] and Johannsen & Chambers v DPP[6] (“Ground 2”); 3the Police were in breach of the order of 22 December because they had not described what steps (if any) they had taken to recover the CCTV footage prior to its being over-written, by reason of which the complaint should be dismissed (Ground 3);4the refusal by the Police to provide the notes of the other constable or the running sheets, by reason of which the complaint should be dismissed under the principle identified in Carter v Hayes[7] (Ground 4).[3] Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48. [4] Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56.[5] R v Reeves (1994) 121 FLR 393.[6] Johanssen & Chambers v DPP (1996) 87 A Crim R 126.[7] Carter v Hayes (1994) 61 SASR 451; [1994] SASC 4477.The Magistrate’s decision The Magistrate delivered reasons for judgment in the afternoon of 15 March 2011. In relation to the orders made on 22 December 2010, the Magistrate set out the text of the direction which had been made on that day. He said:As I understand it, an affidavit from an employee of Bank SA has been provided and, as I understand it, the affidavit deals generally with CCTV footage taken by Bank SA and its preservation. It does not deal with enquiries from the Bank SA premises and therefore does not comply with that purported direction.The Magistrate went on to say that he was inclined to accept the submissions of the Police that it had not been the job of the Police to get the Bank SA CCTV footage for Mr McLeod, nor was it incumbent on the prosecution to make enquiries about it from Bank SA premises, and to the extent that the direction given on 22 December 2010 implied otherwise, it was misconceived. He did not refer further in his reasons to the issue of non‑compliance with the direction of 22 December 2010. In relation to the Bank SA CCTV footage, the Magistrate said:It would have been fair and I think [an] urgent requirement to reply to the defendant’s request advising him of the prosecution position before it was too late. In relation to particulars, the Magistrate referred to the formal request for particulars coming very late and said that no formal particulars, at least in the sense that formal particulars were once understood, had been provided. He said that, generally speaking, a defendant is entitled to formal particulars.
Ratio Decidendi
Legal Principle Established
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