Police v McLeod
[2011] SASC 160
•4 October 2011
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 v Atherton [2010] SASC 87; Police v Childs (2000) 76 SASR 425; Police v Pfeifer (1997) 68 SASR 285; Police v Sherlock (2009) 103 SASR 147; R v Carroll (2002) 213 CLR 635; R v Humphrys [1977] AC 1; Johannsen & Chambers v DPP (1996) 87 A Crim R 126; R v Lucas [1973] VR 693; R v Reeves (1994) 121 FLR 393; R v Ulman-Naruniec (2003) 143 A Crim R 531; Rice v Hudson [1940] SASR 290; Rona v District Court of South Australia (1995) 63 SASR 223; Rukavina v Police [2004] SASC 247; Sedmak v Police [2008] SASC 307; Subramaniam v The Queen (2004) 79 ALJR 116; Tazroo v Police [2002] SASC 155; Walton v Gardner (1993) 177 CLR 378; Whelan v Police [2005] SASC 205, considered.
POLICE v MCLEOD
[2011] SASC 160Magistrates Appeal: Criminal
BLUE J: The respondent, Mr McLeod, was charged by the Police on complaint in the Adelaide Magistrates Court with:
1Behaving in a disorderly manner (s 7 of the Summary Offences Act 1935 (SA) (“the Act”);
2Failing to state his name and address upon being required to do so (s 74A of the Act);
3Resisting a police officer in the execution of his duty (s 6 of the Act).
Mr McLeod applied for dismissal of the complaint on grounds including:
1the prosecution had refused to provide particulars of the alleged offences;
2CCTV footage had been over-written due to the conduct of the Police.
The Magistrate dismissed the complaint because he considered that it would be inconsistent with the traditional requirements of balance and fairness that Mr McLeod be forced to embark upon the trial process without the protection of formal particulars and without knowing what the CCTV footage showed.
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.
On 22 December 2010, the matter was listed for trial on 4 March 2011. The Magistrate made the following direction:
In relation to further disclosure, his Honour directs that it be made by the complainant in relation to CCTV footage in the alleged area where incident occurred and, in particular, enquiries from the Ambassadors Hotel and Bank SA premises.
Further Events
On 28 February 2011, Mr McLeod’s solicitor sent a facsimile to the Police requesting “Further and Better Particulars of each offence”. It said that, if particulars were not provided, Mr McLeod would apply to have the charges dismissed or permanently stayed on the basis of the principles identified in Johnson v Miller.[1] A second facsimile was sent to the Police requesting, amongst other things, notes made by the second constable and running sheets generated in the arrest and incarceration of Mr McLeod.
[1] Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77.
On 4 March 2011, Mr McLeod issued an application seeking dismissal of the complaint on three grounds (which I number, for reasons which will become apparent, as follows):
1Refusal of the Police to provide particulars of the offences, contrary to the principles in Johnson v Miller and Hayes v Quinn[2] (“Ground 1”);
2Failure of the Police to comply with Court orders in relation to obtaining CCTV (“Ground 3”);
3Refusal of the Police to provide documents necessary for the proper preparation of the defendant’s defence and the conduct of a fair trial (“Ground 4”).
[2] Hayes v Quinn (1992) 57 SASR 6.
The application was supported by an affidavit by Mr McLeod. In the affidavit, he deposed, amongst other things, to:
1his attendance at Bank SA on 29 June 2010;
2his correspondence with the Police of 11 August 2010, 12 October 2010 and 23 November 2010 and his solicitor’s letters dated 28 February 2011;
3the order made on 22 December 2010.
On 4 March 2011, both the trial and the application to dismiss came before the Magistrate. During the hearing, the prosecutor said that he had not received the letter requesting particulars. After a discussion, the matter was adjourned to 15 March 2011.
On 11 March 2011, the Police sent a facsimile to the solicitor for Mr McLeod enclosing an affidavit by the Westpac employee referred to above which said that Bank SA did not have the CCTV footage of the night as it was generally retained for a maximum of 90 days. The facsimile also enclosed an affidavit addressing CCTV footage at each of the Ambassadors Hotel and the City Watchhouse. The facsimile then stated:
The prosecution are relying on the observations of Police, in particular the assertions made by [the constables] corroborating most of his observations. You have requested better particulars in respect to all counts. The prosecution have provided you with the affidavits of [the constables].
The observations in respect of the Disorderly Behaviour are disclosed in the affidavit of [the lead constable].
The conversation as recorded by [the lead constable], in particular the conversation in respect of [the lead constable] requesting your client’s name and address because of a suspicion that an offence had been committed, are the particulars in respect of that offence.
The observations of [the constables], in respect of the offence of resisting police.
The hearing
On 15 March 2011, the application for dismissal of the complaint was heard and determined by the Magistrate.
The prosecutor contended that the Police had complied with the order of 22 December 2010 by providing to Mr McLeod the affidavits concerning CCTV footage from Bank SA, the Ambassadors Hotel and the City Watchhouse. Those affidavits were not filed or tendered. Also not filed or tendered were the affidavits of the constables which the prosecutor said provided particulars in relation to the offences.
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.
The Magistrate then concluded as follows:
Could the defendant receive a fair trial without knowing what that footage showed and without the protection of formal particulars? I would hope so. Should he be forced to embark upon that trial process? Would that be consistent with the traditional requirements of balance and fairness that are or should be guaranteed by the Court? In my opinion the answer to that is “no”. The complaint will be dismissed.
The appeal to this Court
At the hearing of the appeal, the Police rely upon two affidavits of the prosecutor who appeared at the hearing in March 2011. I received those affidavits, subject only to two objections by Mr McLeod to specific paragraphs/exhibits addressed in the following paragraphs.
The Police also seek to rely upon:
1exhibits 5 and 6 to (and associated paragraphs [12] and [13] of) the prosecutor’s first affidavit, which relate to steps taken by the Police between 29 October and 1 November 2010 to obtain, amongst other things, CCTV footage;
2affidavits of two other prosecutors as to the conduct of the prosecution between mid June and mid August 2010 and between September and December 2010 respectively.
Mr McLeod objects (“Objection 1”) to my receiving these affidavits on the ground that they comprise fresh evidence which was not before the Magistrate in circumstances in which there is no reason why it was not and could not have been adduced before the Magistrate.
The Police also seek to rely upon:
1the affidavits of the two constables sworn in November 2010;
2the affidavit of the second participant in the confrontation sworn in November 2010;
3a document in the form of an unsigned affidavit by the third participant in the confrontation (saying he did not wish to provide a statement);
being Exhibits 9 to 12 to (and paragraph [16] of) the prosecutor’s affidavit.
Mr McLeod objects (“Objection 2”) to my receiving these affidavits on the same ground as Objection 1, and further on the ground that they are not relevant to the issues on appeal and further that they are untested and relate to the ultimate issues in the prosecution.
The Police also seek to rely upon new affidavits addressing the location of the incident which occurred on the night, the location of and fields of view of the Bank SA CCTV cameras, whether the cameras could have captured those events, and the period during which such footage was generally retained by Bank SA.
Mr McLeod objects (“Objection 3”) to my receiving these two affidavits on the same ground as Objection 1 and also upon admissibility grounds including vagueness, hearsay and inadmissible opinion. In addition, Mr McLeod indicated that, were I to receive those two affidavits, he seeks to cross-examine the deponents.
In light of the nature of some of the objections on admissibility grounds and the intimation by Mr McLeod that he wishes to cross-examine two of the deponents if their affidavits are admitted and perhaps to adduce further evidence himself, it was determined that I should decide the appeal in two stages, deferring till later issues arising in respect of such new evidence.
On his part, Mr McLeod relies upon affidavits sworn by himself and by his solicitor which address the events of the night and steps taken in connection with the prosecution between June 2010 and March 2011.
Approach on appeal from Magistrates Court
An appeal to this Court from a judgment of the Magistrates Court is by way of re-hearing: [8]
The Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the Magistrate together with such other evidence as it might admit. It is the duty of this Court to make up its own mind… the appellate court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance.
[8] Police v A, TG [2006] SASC 299 at [15]-[16] per Sulan J (Perry and Nyland JJ agreeing) citing Tazroo v Police [2002] SASC 155 per Lander J and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [26] per Gleeson CJ, Gummow and Kirby JJ.
Where the decision at first instance does not involve the exercise of a discretion or assessment of witnesses, the question on appeal is whether or not the decision was correct.
Where the decision at first instance involves the exercise of a discretion, the question is whether the exercise of the discretion miscarried in the manner described by the High Court in House v The King.[9]
[9] House v The King (1936) 55 CLR 499 at 505.
In R v Carroll,[10] Gaudron and Gummow JJ said that a decision to grant or refuse a stay is not discretionary in the sense that it is not true to say that “there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not”.[11]
[10] R v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [73] per Gaudron and Gummow JJ.
[11] Cited by the Full Court in Police v Sherlock (2009) 103 SASR 147; [2009] SASC 64 at [94] per Doyle CJ (Sulan and Kourakis JJ agreeing).
In R v Carroll, the Crown had sought special leave to appeal to the High Court from a decision of the Queensland Court of Appeal granting a stay of proceedings for abuse of process. After the making the proposition referred to in the previous paragraph, Gaudron and Gummow JJ said:
However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.
The immediate question whether special leave should be granted thus turns on whether sufficient doubt attends the decision of the Court of Appeal …[12]
(Footnotes omitted)
[12] R v Carroll (2002) 213 CLR 635 at [73]-[74] per Gaudron and Gummow JJ.
A question arises as to how the two passages are to be reconciled. In that case, it may be because of the element of special leave to appeal being required or the nature of the appeal.
In the case of an appeal by way of rehearing from a decision of the Magistrates Court, the nature of the appeal being as of right and by way of rehearing as described at paragraph [39] above in combination with the proposition at paragraph [42] above might suggest that appellate review of a permanent stay is not conditioned upon the application of House v The King principles.
However, in the present case, I need not resolve this question for reasons which appear below.
The approach of the Magistrate
The Magistrate acted upon a number of wrong principles in his approach to the issues and the hearing before him miscarried as a result.
First, the Magistrate’s reasons for judgment inextricably mixed Grounds 2 and 3 and an application for dismissal with an application for a permanent stay following submissions by counsel in support of Ground 2 under the rubric of Ground 3.
At [9] of his reasons, the Magistrate reached a composite conclusion that the complaint should be dismissed due to the combined effect of the lack of particulars and the lack of the CCTV footage, whereas he ought to have given separate consideration to these two grounds as they involve different considerations and lead to different remedies. The normal remedy for a refusal to provide essential particulars when ordered is dismissal, whereas the normal remedy for unfairness due to loss of evidence is a permanent stay of proceedings.
It is impossible to know what weight the Magistrate gave to each of those two components in reaching his overall conclusion that dismissal was appropriate.
Secondly, at [5]-[6] and [9], the Magistrate reached a composite conclusion that the entire complaint should be dismissed without giving any separate consideration to the relevance of the CCTV footage to each of the three different offences.
If the Bank SA cameras had captured the confrontation and footage had been available to the Police and Mr McLeod, there would have been an objective record of what occurred during the incident (the quality of which would have depended on camera resolution, field of view, etc.). This would have been obviously relevant to the disorderly behaviour charge.
Different considerations may apply in relation to the refuse to provide name and address and resist police charges. For example, on the evidence before the Magistrate, the live issue in relation to the fail to provide name and address charge may have been whether the lead constable had a reasonable suspicion that Mr McLeod had committed an offence. While the objective record of the incident may have been relevant to that issue, ultimately it would have turned upon the lead constable’s state of mind and what he observed (even if his conclusion that an offence had actually been committed was in fact erroneous). Similar comments apply to the resist police charge. Thus, the case for a permanent stay may have been stronger on count 1 than on count 2 or count 3.
Thirdly, both during the hearing and in his reasons, the Magistrate did not address the necessary elements and steps required to be addressed on an application for a permanent stay on the ground of lost evidence. Combined with the fact that the application on this ground was raised by Mr McLeod for the first time only during the hearing after the Police had already addressed the Magistrate, the parties (in particular the Police but also to an extent Mr McLeod) did not have a proper opportunity to adduce evidence relevant to or make submissions concerning the issue.
Fourthly, the Magistrate did not analyse or identify the inadequacy of the particulars supplied by the Police, nor the reason why any identified inadequacy should result in a dismissal of the complaint.
Fifthly, the Magistrate did not receive or refer to the affidavits to which the parties referred.
For these reasons, both the hearing and the decision of the Magistrate miscarried.
Ground 1 – Dismissal for Refusal to give Particulars
On appeal, the Police contend that:
1the particulars provided by letter dated 11 March 2011 were proper and adequate particulars;
2alternatively, there was no refusal by the Police to provide further particulars, no order that the Police do so, no subsequent refusal or failure to comply and in those circumstances there was no basis for dismissing the complaint.
Adequacy of particulars provided
As to the first contention by the Police on appeal regarding adequacy, the Magistrate did not indicate why the “particulars” provided on 11 March 2011 were inadequate.
The Magistrate referred to what he characterised as the dishonourable replacement of the obligation to provide formal particulars with handing over witness statements, and said that no formal particulars had been provided. The Magistrate concluded that Mr McLeod should not be forced to embark upon the trial process without the protection of formal particulars.
The Magistrate did not identify:
1whether he was concerned with the form in which the particulars were provided (i.e. by letter incorporating by reference paragraphs from witness affidavits as opposed to a stand-alone letter) or the substance of the particulars provided;
2the elements of each offence and the adequacy or inadequacy of the particulars in respect of each separate element or each separate offence or at all;
3why the complaint should be dismissed by reference to the inadequacy of the particulars.
The Magistrate erred in failing to address these matters.
The Magistrate heard submissions as to the adequacy of particulars given by reference to the affidavits of the constables, but did not require the production of those affidavits. He erred in so doing, because he could not fully assess the adequacy of the particulars without seeing the affidavits.
Form versus substance
The transcript of the hearing on 15 March 2011 shows that Mr McLeod’s argument as to the inadequacy of particulars was put as a matter of substance rather than form. Given the way in which the matter was argued, I construe the Magistrate’s reasons as saying that the particulars provided on 11 March 2011 were inadequate as a matter of substance for Mr McLeod to know the case against him.
If I am wrong in that construction, and the Magistrate considered that the form of the particulars was offensive, he erred. It cannot be said in all cases that merely because particulars are provided by reference to another document (including a witness statement) they are necessarily bad in form. In any event, a defect in form could not justify the radical step of dismissing the complaint.
Determination of Objection 2
I receive the affidavits of the constables sworn in November 2010. As the particulars were provided by reference to those affidavits, they must be received to consider their adequacy.
I also receive the affidavit of the second participant sworn in November 2010. It must be received as part of the context in which the particulars were provided (and given that it had been provided to Mr McLeod in November 2010).
Those affidavits are relevant to the issue of adequacy of particulars, and are not presently relevant for the truth of their contents. I overrule Objection 2 by Mr McLeod to this extent.
Count 1: Disorderly behaviour
Disregarding the question of onus of proof, the elements of this offence, relevantly, are:
1behaviour in a disorderly manner, which effectively means a “substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people”;[13]
2in a public place;
3the defendant’s conduct being conscious and deliberate, as opposed to accidental,[14] and the defendant not honestly and reasonably believing that his or her conduct is not disorderly.[15]
[13] Barrington v Austin [1939] SASR 130 at 132 per Napier J; Rice v Hudson [1940] SASR 290 at 292 per Angas Parsons J, 293, 294 per Richards J; Lafitte v Samuels (1972) 3 SASR 1 at 12 per Mitchell J, 17 per Zelling J.
[14] Police v Atherton [2010] SASC 87 at [16] per Duggan J.
[15] Police v Pfeifer (1997) 68 SASR 285 at 293; [1997] SASC 6172 per Doyle CJ (Debelle and Lander JJ agreeing).
In the hearing before the Magistrate, Mr McLeod referred only to the necessity for particulars in respect of the first element of the offence.
Mr McLeod argued before the Magistrate, and on appeal, that the letter dated 11 March 2011 (giving particulars by stating “the observations in respect of the disorderly behaviour are disclosed in the affidavit of [the lead constable]”) did not fairly give Mr McLeod notice of the case against him because it was unclear what objective conduct by Mr McLeod over what specific period comprised the disorderly behaviour.
My understanding of the letter is that the disorderly behaviour charge spans the period the subject of the lead constable’s observations described in paragraphs [5] to [8] of his affidavit. These paragraphs of the affidavit are clear as to what he says he saw, and ordinarily particulars incorporating those paragraphs, whether directly or by reference, would be regarded as adequate.
However, for three of the reasons advanced by Mr McLeod, in the special circumstances of this case further and better particulars were required.
1It is apparent from the lead constable’s affidavit that he only observed part of the incident, it having started before he observed the three participants from the patrol vehicle. The letter of 11 March 2011 is not clear about that part of the incident which occurred prior to the observations of the lead constable, particularly in circumstances in which the Police served an affidavit by the second participant which gave an account of the incident from its beginning.
2The Police originally charged Mr McLeod with assault, but did not proceed with that charge. On the face of the lead constable’s affidavit, and certainly the affidavit of the second participant, part of Mr McLeod’s actus reus was capable of being characterised as assault. This creates doubt as to what, on the Police case, comprised the actus reus of the disorderly behaviour offence.
3The lead constable’s affidavit is naturally expressed from his subjective point of view as to what he saw, as opposed to objectively what, on the Police case, actually occurred. Given points 1 and 2 above, coupled with differing subjective perspectives of the lead constable and the second participant, the Police ought to have identified the conduct comprising the disorderly behaviour in objective terms.
Count 2: Failure to give name and address when required
Disregarding the question of onus of proof, the elements of this offence, relevantly, are:
1a police officer has reasonable cause to suspect that the person has committed an offence;
2the police officer requires the person to state his or her name or address;
3the person refuses or fails to do so;
4the defendant’s conduct being conscious and deliberate;
5the person does not have a reasonable excuse.
In the hearing before the Magistrate, Mr McLeod argued that particulars were required of each of the first three elements.
Mr McLeod does not contend on appeal that inadequate particulars were provided regarding the second and third elements. In my view, the particulars provided were adequate in respect of these two elements.
Mr McLeod does contend on appeal that the Police should have:
1identified the offence which was reasonably suspected; and
2provided particulars analogous to those required in respect of Count 1 (disorderly behaviour) in connection with the reasonable suspicion element of Count 2.
Broadly, I accept these submissions. As Mr McLeod was in fact arrested for assault and not disorderly behaviour, it was necessary for the Police to specify whether the offence reasonably suspected was assault, disorderly behaviour or some other offence.
As to the second submission, it is true, as submitted by the Police, that there is a difference between the objective fact whether Mr McLeod committed the offence of disorderly behaviour relevant to Count 1 and the state of mind of the lead constable, being reasonable suspicion, being the relevant element of Count 2. Hence, particulars of the grounds of the lead constable’s suspicion may differ from particulars of the objective conduct comprising the alleged disorderly behaviour. This reinforces, rather than negates, the need for clear particulars of the grounds of the suspicion.
Count 3: Resist police
Disregarding the question of the onus of proof, the elements of this offence, relevantly, are:
1conduct which resists a police officer, including which resists arrest;[16]
2the police officer is acting in the execution of his duty which, when the resistance is to arrest, effectively means that the police officer has reasonable cause to suspect an offence;[17]
3the actual conduct being conscious and deliberate, as opposed to accidental.[18]
[16] Lepadatu v Police [1999] SASC 400 at [1], [10]-[11], [19] per Martin J; Haifawi v Police [2000] SASC 19 at [13] per Duggan J.
[17] Lepadatu v Police [1999] SASC 400 at [1], [10]-[11], [19] per Martin J; Haifawi v Police [2000] SASC 19 at [13] per Duggan J.
[18] Leonard v Morris (1975) 10 SASR 528 at 547 per Wells J (Walters J agreeing).
Before the Magistrate and on appeal Mr McLeod argues that particulars were required as to the first and second elements.
In relation to the first element, the particulars by reference to paragraphs [13] to [16] of the lead constable’s affidavit are adequate.
However, in relation to the lead constable having reasonable cause to suspect Mr McLeod had committed an offence, it was necessary for the Police to specify whether the offence reasonably suspected was refusing to provide name and address or disorderly behaviour or assault or some other offence.
In addition, the same observations apply as to the reasonable cause to suspect element of the fail to give name and address offence considered at paragraph [??] above.
Refusal to provide particulars and dismissal of complaint
As to the second contention by the Police on appeal regarding dismissal, the Magistrate did not indicate why an order of dismissal was justified in the circumstances.
In Johnson v Miller, the defendant was charged on complaint with being the licensee of a hotel out of which “a person” was seen coming during prohibited hours on a Sunday. The Magistrate directed that the prosecution give particulars of the person seen leaving. The prosecutor refused. The Magistrate dismissed the complaint.
The High Court held that, where a complaint is ambiguous and embarrassing, particulars are required and, where the prosecution refuses to provide those particulars after being ordered to do so, it may be appropriate that the complaint be dismissed.[19]
[19] Johnson v Miller (1936) 59 CLR 467 per Dixon J at 489-492, Evatt J at 495-498 and McTiernan J at 501-502.
In Hayes v Quinn,[20] the sequence and result were the same.
[20] Hayes v Quinn (1992) 57 SASR 6.
In the present case, the context of what occurred on 15 March 2011 was as follows.
1Particulars had been requested by Mr McLeod very late in the piece, four days before the trial, seven months after the complaint had been laid, six months after he had been provided with a summary of evidence in July 2010 and three months after he had been provided with the witnesses’ affidavits in November 2010.
2The prosecutor had not in fact seen the request for particulars at the time of the commencement of the trial on 4 March 2011.
3Mr McLeod’s application of 4 March 2011 was not for a direction that particulars be provided, but rather for dismissal on the ground of an alleged refusal by the Police to provide particulars.
4At the time of that application, the Police had not responded to the request for particulars and had not refused to provide them.
5The request for particulars was generic in requesting “Further and Better Particulars of each offence”, and did not identify which elements of each offence were required to be particularised or how. At the time of the request, Mr McLeod had been provided with the affidavits of the constables and the second participant.
6On 11 March 2011, the Police provided particulars in relation to each of the three offences by reference to identified paragraphs of the affidavits of the constables.
7At the commencement of the hearing on 15 March 2011, the Police had not received a request from Mr McLeod for any further particulars, and had not been put on notice that the particulars provided on 11 March 2011 were deficient or why that was so.
At the hearing on 15 March 2011:
1the prosecutor informed the Magistrate that particulars had been provided by reference to the affidavit of the lead constable, and contended that the particulars were adequate;
2the prosecutor said, “If you believe that certain particulars must be given, if you conclude that I should give those particulars, I will provide those particulars”;
3Mr McLeod then addressed the Magistrate and argued that the particulars provided were inadequate – broadly for the reasons considered by me above – and the complaint should be dismissed.
The facts of this case are quite different from those in Johnson v Miller and Hayes v Quinn. In this case, there was no direction by the Magistrate that particulars be provided. There was no refusal by the Police to provide particulars in the face of such a direction. On the contrary, the Police indicated that they would provide the particulars if so directed. The particulars which had been provided by the Police on 11 March 2011 were not egregiously inadequate, and there is no reason to find that they were not provided in the subjective belief that they were adequate.
Mr McLeod refers to John L Pty Ltd v Attorney-General (NSW)[21] as authority for the proposition that it may be appropriate to dismiss a complaint (or information, as in that case) on the ground that the complaint does not provide adequate particulars, without there having been any refusal by the prosecution to provide particulars. In that case, the court at first instance, and ultimately the High Court on appeal, held that the information was invalid for want of any material particulars and was incurable by amendment or by the provision of particulars. Mr McLeod eschewed an argument in this case that the complaint was invalid. Accordingly, that decision is not authority that a valid complaint can be dismissed for want of particularity prior to a refusal by the prosecution to provide particulars.
[21] John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42.
Mr McLeod also relies upon the power given by s 181(2)(b) of the Summary Procedure Act 1921 (SA) to dismiss a complaint for a defect which cannot be cured by amendment. However, for the same reasons as are given in the previous paragraph, that was not the position here.
In these circumstances, the Magistrate erred in dismissing the complaint on the ground of “refusal” to provide particulars or otherwise by reference to the particulars which had or had not been provided.
Ground 2 – Permanent Stay due to loss of CCTV footage
On appeal the Police contend that:
1the Magistrate erred in failing to assess the relevance of the lost evidence and in fact it was not relevant or demonstrated to be relevant as having captured the incident;
2the Magistrate erred in failing to assess whether the lost evidence was potentially exculpatory of Mr McLeod;
3the Magistrate erred in failing to assess the existence or degree of unfairness to Mr McLeod or balance any unfairness against competing public interest considerations.
Legal Principles
The House of Lords in Connelly v Director of Public Prosecutions[22] and R v Humphrys[23] developed the remedy of a permanent stay to prevent abuse of process in criminal proceedings. This was followed and applied by the High Court in Barton v The Queen.[24]
[22] Connelly v Director of Public Prosecutions [1964] AC 1254.
[23] R v Humphrys [1977] AC 1.
[24] Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48.
The categories in which the remedy will be granted are not closed,[25] but there are some established categories. Established categories include unfairness to the defendant due to loss of evidence and unfairness to the defendant due to delay. Some cases involve a combination of both delay and loss of evidence.[26]
[25] R v Edwards (2009) 83 ALJR 717; [2009] HCA 20 at [33] per Hayne, Heydon, Crennan, Kiefel and Bell J; Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 at [26]-[27] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.
[26] E.g. Johanssen & Chambers v DPP (1996) 87 A Crim R 126; R v Littler (2001) 120 A Crim R 512; [2001] NSWCCA 173.
Where the abuse of process or unfairness is said to arise from the loss or destruction of evidence simpliciter,[27] while ultimately it is a single question of whether or not a permanent stay should be granted, in a practical sense it may often be useful to approach that question in two stages.
[27] I.e., absent delay or other extraneous factors.
The first, or threshold, stage involves a consideration of the lost evidence itself and whether relevant unfairness to the defendant has been demonstrated. The following general propositions apply, although every case must be considered on its own facts and it is unwise to lay down rigid or universal rules.
1The evidence must have once existed and have been lost or destroyed or otherwise become unavailable.
2The lost evidence must have been relevant to the case.[28]
3The lost evidence must have been material, in the sense of being capable of affecting the result of the case.[29]
4The lost evidence must, at least in a typical case, have been exculpatory of the defendant (on evidence deployed by or relied on by defence).[30]
5The unavailability of the evidence must in a typical case be the responsibility (partly or wholly) of the prosecution.[31]
[28] I.e., relevant to an element of or defence to the offence. I do not need to consider relevance to credibility.
[29] R v Ulman-Naruniec (2003) 143 A Crim R 531; [2003] SASC 437 at [33] per Bleby J; Police v Pakrou (2008) 103 SASR 124; [2008] SASC 364 at [71], [72] and [74] per Kourakis J; Police v Sherlock (2009) 103 SASR 147 at [71], [81]-[88] per Doyle CJ (Sulan and Kourakis JJ agreeing).
[30] Police v Sherlock (2009) 103 SASR 147 at [81]-[84], [88]-[89] per Doyle CJ (Sulan and Kourakis JJ agreeing).
[31] Police v Pakrou (2008) 103 SASR 124 at [72] per Kourakis J; Police v Sherlock (2009) 103 SASR 147 at [71], [77]-[80], [98] per Doyle CJ (Sulan and Kourakis JJ agreeing).
I address the meaning of these propositions, some authorities in support of them and some potential qualifications to them below.
It appears that, in the most general sense, the overall onus of proof in respect of the first stage is upon the defendant as the applicant for the stay.[32] However, I leave open (as unnecessary to decide) the questions whether:
1the evidentiary onus may rest on the prosecution in respect of a particular fact or issue in particular circumstances;
2the persuasive onus may rest on the prosecution in respect of a particular fact or issue in exceptional circumstances;
3the standard of proof may vary depending on the issue concerned and the context.
[32] See the approach of the High Court in R v Edwards (2009) 83 ALJR 717 at [33] per Hayne, Heydon, Crennan, Kiefel and Bell JJ.
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).
During the hearing before the Magistrate, there was no clear focus on the question whether the Bank SA CCTV cameras captured the relevant events of that night. The transcript of the hearing shows that, at times, the submissions of both parties proceeded on the assumption that they did, but at one point this was treated by the Magistrate as unknown. At the third paragraph of his reasons, the Magistrate proceeds on the basis that it was not known whether or not the incident was captured by the CCTV cameras.
There was no evidence adduced before the Magistrate as to whether the incident was within the field of view of the cameras, the resolution of the cameras, whether they captured sound, or whether (if they captured the incident generally) they were capable of showing the conversations and actions occurring during phases two and three of the incident.
On appeal, the Police argue that Mr McLeod bears the onus of demonstrating the relevance of the lost CCTV footage in the sense of proving that the CCTV cameras had captured the relevant incident.
In addition, the Police seek to introduce new evidence on appeal from the lead constable and a second Westpac employee with a view to proving that the CCTV cameras could not have, and had not, captured the incident.
The Magistrate erred in the manner in which he dealt with this matter, and in any event the hearing miscarried for the reasons already given.
In those circumstances, both parties should be at liberty to adduce new evidence on the topic.
I therefore overrule the first ground of Objection 3 by Mr McLeod to the new evidence, but defer consideration of his objections to the admissibility of that evidence to the second stage of the appeal.
Materiality of lost evidence
I turn now to the third proposition.
On an application for a permanent stay due to the loss of evidence, it is necessary to assess the materiality and importance of the lost evidence to the issues in the case,[40] and it is difficult to envisage a case in which a stay would be granted unless the evidence was material and capable of affecting the result of the case.
[40] R v Ulman-Naruniec (2003) 143 A Crim R 531 at [33]; Police v Pakrou (2008) 103 SASR 124 at [71], [72] and [74] per Kourakis J; Police v Sherlock (2009) 103 SAS 147 at [71], [81]-[88] per Doyle CJ (Sulan and Kourakis JJ agreeing).
The Magistrate ought to have identified what was fundamentally in issue in the case, by ascertaining what the Police case was and what the defence case was on the issues in relation to each separate offence.[41] Only once that had been done could any assessment be made of the materiality and importance of the lost CCTV footage.
[41] See, for example, R v Littler (2001) 120 A Crim R 512 at [6]-[11] per Hodgson JA, [16] per Greg James J; Police v Pakrou at [5]-[10], [22], [71] per Kourakis J; Police v Sherlock (2009) 103 SASR 147 at [6], [71] per Doyle CJ (Sulan and Kourakis JJ agreeing).
In the present case, the Magistrate did not address this question beyond observing that it was not known and would never be known whether or not the footage showed Mr McLeod behaving in the manner alleged.
Determination of Objection 2
On appeal and for this purpose, the Police seek to rely upon the affidavits of the constables and the second participant which had been sworn in November 2010. I receive those affidavits for this purpose, and overrule Objection 2 by Mr McLeod to their receipt. The witness statement by the third participant is of no weight and I pay no regard to it.
On appeal, Mr McLeod seeks to rely upon an affidavit sworn on 18 August 2011 in which he gives his own account of the events of the night. I receive that affidavit also for this purpose.
Those affidavits demonstrate that CCTV footage, on the assumption that it had captured the incident, would have been material at least to the issue on Count 1 whether Mr McLeod engaged in disorderly behaviour.
I defer further consideration of this question to the second stage of this appeal.
The lost evidence must be exculpatory
I turn now to consider the fourth proposition.
On an application for a permanent stay due to loss of evidence, it is necessary to assess whether, on the evidence before the Court, the lost evidence was (or was likely to be) exculpatory of the defendant, and in a typical case, the lost evidence must be (on the defendant’s case on the evidence before the Court and to the requisite degree of satisfaction) exculpatory of the defendant.[42]
[42] Police v Sherlock (2009) 103 SASR 147 at [81]-[84], [88]-[89] per Doyle CJ (Sulan and Kourakis JJ agreeing).
In R v Edwards,[43] the applicants for a stay were pilots charged with recklessly operating an aircraft by taking off from Launceston at 11.00pm without runway lights. At that hour of night, the runway lighting had to be activated by the pilots. The flight data recorder recorded activations, but its data had been overwritten due to alleged delays in the investigation by CASA.
[43] R v Edwards (2009) 83 ALJR 717.
On the application for a stay, counsel for the pilots speculated that they might have activated the lights just over 10 minutes prior to the point of lift off, but due to a fault in the activation system, the lights had been activated for only 10 minutes rather than the normal minimum of 32 minutes. However, the pilots did not give any evidence that they had in fact so activated the lights. The pilots did not give evidence on the application for a stay, and the only evidence from them was a statutory declaration by one of them merely stating that the runway lights were on at all material times.
The High Court overturned the decision of the Supreme Court of Tasmania that the prosecution be stayed for unfairness due to a combination of the lost evidence and overall delay by CASA of approximately two and a half years in instituting the prosecution. The Court said:[44]
It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case. The content of the Monitor List and the recording made by the FDR is unknown. In these circumstances it is not correct to characterise their loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case.
[44] R v Edwards (2009) 83 ALJR 717 at [33] per Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The combined effect of these decisions appears to be that, on evidence deployed by or relied on by the defence, the missing evidence must be exculpatory.
Mr McLeod’s affidavit of 18 August 2011 sets out his account of the events of the night which, if accepted, would make him not guilty of Counts 1 and 3, and arguably not guilty of Count 2.
This affidavit is important for the purposes of Mr McLeod establishing that the missing CCTV footage was, on his own evidence exculpatory.
The affidavits of the two constables and the second participant are also relevant to the issue, and I receive them for this purpose. However, it is not appropriate to assess or weigh the Police account against the account given by Mr McLeod in his affidavit.[45]
[45] R vLittler (2001) 120 A Crim R 512.
Responsibility for loss of evidence
I turn to the fifth proposition.
In considering whether or not to grant a permanent stay in a case in which evidence has been lost, it is relevant to consider who was responsible for the loss, and their degree of culpability in relation to the loss and in a typical case a stay will not be granted unless the prosecution is responsible for the loss.[46]
[46] Police v Pakrou (2008) 103 SASR 124 at [72] per Kourakis J; Police v Sherlock (2009) 103 SASR 147 at [71], [77]-[80], [98] per Doyle CJ (Sulan and Kourakis JJ agreeing).
This is a corollary of the well-established propositions that a complete and unexceptionable investigation of an alleged crime is not a necessary element of a fair trial[47] and that trials properly proceed on a daily basis in circumstances in which less than all possible evidence is available.[48]
[47] Penney v The Queen (1998) 72 ALJR 1316; [1998] HCA 51 at [14]-[22] per Callinan J (McHugh, Gummow, Kirby and Hayne JJ agreeing); Police v Sherlock (2009) 103 SASR 147 at [72]-[75] per Doyle CJ (Sulan and Kourakis JJ agreeing).
[48] Sedmak v Police [2008] SASC 307 at [28]-[30] per Doyle CJ; Police v Sherlock (2009) 103 SASR 147 at [76] per Doyle CJ (Sulan and Kourakis JJ agreeing).
The “prosecution” for this purpose may extend beyond the prosecuting authority to:
1the investigating authority in respect of conduct before or during the prosecution phase;[49]
2the complainant in the sense of the government body, corporation or individual who is the alleged victim and/or initiated the complaint;[50]
3the government of which the investigating and prosecuting authorities are an arm.[51]
[49] E.g. Holmden v Bitar (1987) 47 SASR 509; Rukavinia v Police [2004] SASC 247; Whelan v Police [2005] SASC 205.
[50] E.g., Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; [1999] SASC 154; Police v Sherlock (2009) 103 SASR 147.
[51] E.g., Duncombe-Wall v Police (1998) 197 LSJS 398; R v Reeves (1994) 121 FLR 392.
The prosecution may be regarded as being “responsible” for the loss of the evidence where:
1the evidence is lost by or while in the possession of the prosecution;[52]
2the prosecution breaches the prosecutorial duty as to disclosure of all material evidence to the defence and/or calling all available credible evidence.[53]
[52] E.g., R v Reeves (1994) 121 FLR 393; Duncombe-Wall v Police (1998) 197 LSJS 398; Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; Rukavinia v Police [2004] SASC 247; Whelan v Police [2005] SASC 205.
[53] E.g., R v Lucas [1973] VR 693 at 696-698 per Smith ACJ; 704-706 per Newton J and Norris AJ; Holmden v Bitar (1987) 47 SASR 509; Whelan v Police [2005] SASC 205. See also Pakrou v Police (2008) 103 SASR 124 at [38] per Kourakis J.
There may be exceptional circumstances in which a permanent stay should be granted where the evidence has been lost due to the actions of a third party without any responsibility of the prosecution.[54] However, generally in those cases where a stay has been granted due to lost evidence, the evidence had originally or previously been in the possession of the prosecution.
[54] This was contemplated in Sedmak v Police [2008] SASC 307, where bank records were lost by the bank which was a pure third party, but Doyle CJ held that a stay was not justified in all of the circumstances (including no fault by the prosecution). Where the application is based on a combination of long delay and lost evidence, the considerations may be different.
In the present case, the need for the Police to have been responsible for the loss of the CCTV footage is reflected in the fact that Mr McLeod did not rely upon the unavailability of CCTV footage from the Ambassadors Hotel (in circumstances in which, on the evidence, it had been over-written by the end of June 2010 and had never been the subject of a request by Mr McLeod of Police that they obtain it).
The Magistrate proceeded in his reasons on the basis that the Bank SA footage had been retained for 90 days and was therefore still in existence in mid‑August when the Police received Mr McLeod’s letter. This reflected the basis on which the matter was argued before the Magistrate, although I note that the Westpac employee in both her email of 3 November 2010 and her affidavit of 9 March 2011 referred to 90 days as “the maximum days”.
While Mr McLeod accepts that the Police had no inherent obligation to obtain the Bank SA CCTV footage of their own volition, he argues that the failure by the Police either to seek the footage or inform Mr McLeod that they would not do so rendered the Police responsible for the loss of the footage assuming that it still existed at that point.
The Magistrate evidently proceeded on this basis. I agree that the circumstances potentially rendered the Police partially responsible for the loss of the footage. However, the Magistrate erred in not giving consideration to the respective responsibilities and culpabilities of Mr McLeod and the Police for the loss of that footage in all of the circumstances (including the timing and terms of Mr McLeod’s request to the Police that they obtain the footage).
Determination of Objection 1 and part of Objection 3
On appeal, the Police seek to adduce new evidence from two prosecutors explaining why they did not take any steps prior to the end of August 2010 either to seek the footage or to inform Mr McLeod that they would not do so.
On appeal, the Police also seek to introduce new evidence from a second Westpac employee with a view to proving that the Bank SA CCTV footage had probably been already over-written by 11 August 2010.
In the circumstances of the miscarriage of the hearing before the Magistrate on 15 March 2011, it is appropriate that fresh evidence be adduced relevant to the topic of responsibility and culpability for the loss of the footage.
I therefore overrule the first ground of Mr McLeod’s Objections 1 and 3. I defer consideration of the remaining grounds of Mr McLeod’s Objection 3 to the admissibility of the affidavit of the Westpac employee.
I defer generally an analysis of the topic of responsibility and culpability to the second stage of the appeal.
Balancing Process
The Magistrate did not embark on the required balancing process or assess the factors listed above which are required to be considered as part of that process.
Conclusion
For the reasons expressed above, the Magistrate proceeded upon a number of incorrect principles with respect to Ground 2, and the hearing before him on 15 March 2011 miscarried. Accordingly, there needs to be fresh consideration whether or not a permanent stay of proceedings ought to have been granted. That consideration should proceed on the basis that, because of the miscarriage, both parties have an opportunity to present fresh evidence.
Grounds 3 and 4
The Magistrate did not rely on either Ground 3 or Ground 4 of Mr McLeod’s application for dismissal.
On appeal, Mr McLeod raised an alternative contention that the order of dismissal could be justified by either Ground 3, Ground 4 or a combination of Grounds 1, 3 and 4. He submitted that the Magistrate had power to dismiss the complaint:
1pursuant to r 8.08 of the Magistrates Court Rules 1992; or
2at common law under a principle established by Rona v District Court of South Australia.[55]
[55] Rona v District Court of South Australia (1995) 63 SASR 220; [1995] SASC 4922.
As to the first head of power, it has been held in Police v Childs[56] and Police v Slater[57] that r 8.08 does not give the Magistrates Court power to dismiss proceedings other than, relevantly, after a not guilty plea has been entered and other than upon the merits.
[56] Police v Childs (2000) 76 SASR 425; [2000] SASC 111 per Bleby J.
[57] Police v Slater (2003) 86 SASR 189; [2003] SASC 284 per Perry J.
As to the second head of power, the decision in Rona addressed the power to grant a permanent stay for abuse of process and not the power to dismiss. The order made by the Magistrate in the present case was for dismissal, not a permanent stay.
However, I shall assume, in favour of Mr McLeod, that the Magistrate did have power to dismiss the complaint on the ground of failure to comply with an order for disclosure.
In Police v Slater, Perry J said:[58]
… it was, in my view, an incorrect and erroneous exercise of the discretion to dismiss the assault counts on the complaints in so peremptory a fashion, simply because the prosecution had failed fully to comply with earlier orders for the production of certain documents.
The magistrate should have afforded an opportunity for the further material which the defence required to be provided. …
Attempts to convert caseflow management procedures into overly rigid procedural orders which put a prosecution out of court in such a peremptory fashion should not be encouraged. There is a public interest in the maintenance of prosecutions. There is a public interest, if police officers are alleged to have been assaulted, in having the charges dealt with and ventilated properly. That interest is not well served by such a heavy‑handed application of caseflow management procedures.
[58] Police v Slater (2003) 86 SASR 189 at [29]-[31] per Perry J.
I turn now to the relevant circumstances.
As to Ground 3:
1The meaning and intent of the direction made on 22 December are not clear. The direction might be construed as requiring the Police prospectively to make inquiries of the Ambassadors Hotel and Bank SA premises as to whether CCTV footage could be obtained and to disclose such footage to Mr McLeod. Alternatively, the direction might be construed as requiring the Police to disclose what inquiries they had made in the past of the Ambassadors Hotel and Bank SA premises.
2The Police proceeded on the basis of the former construction, because they obtained and disclosed to Mr McLeod new affidavits from personnel from the Ambassadors Hotel and Bank SA premises which showed that the footage had been over-written.
3Even if the Police were mistaken in so construing the direction, in the circumstances their non-compliance with the direction could not have justified dismissal or a permanent stay.
As to Ground 4:
1Mr McLeod argues on appeal that the Magistrate’s order of dismissal was justified by the refusal of the Police to produce the police notes and sheets.
2Mr McLeod had requested notes by his letter dated 11 August 2010. On 19 November 2010, the Police had provided notes by the lead constable, but did not refer to any notes by the second constable. Mr McLeod did not follow this up until his solicitor’s letter of 28 February 2011.
3No order had been made by the Court that the Police produce any notes by the second constable or any running sheets, if either existed, and the Police had not refused to comply with any such order.
4In these circumstances, an order of dismissal or permanent stay was not justified.
As to Ground 1, I have already concluded that no order of dismissal was justified.
As to Grounds 1, 3 and 4 in combination, no order of dismissal or permanent stay was justified.
Conclusion
In accordance with the basis upon which the appeal was argued by the agreement of both parties, I defer further consideration of a permanent stay for abuse of process to the second stage of the appeal.
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