Police v McLeod (No 2) - [2011] SASC 204

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MCLEOD (NO 2)
[2011] SASC 204
Judgment of The Honourable Justice Blue
23 November 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - GENERALLY
Stage two of appeal from decision of a Magistrate dismissing complaint - Stage one determined the hearing before the Magistrate miscarried - whether a permanent stay due to loss of evidence ought to have been granted.
Held: Appeal allowed - case for a permanent stay not made out - matter remitted to Magistrates Court.
Police v McLeod [2011] SASC 160; Police v Pakrou (2008) 103 SASR 124, considered.

POLICE v MCLEOD (NO 2)
[2011] SASC 204
Magistrates Appeal: Criminal

BLUE J: On 4 October 2011, I delivered reasons for judgment in which I concluded that a Magistrate erred in dismissing a complaint against the respondent Mr McLeod.[1]
[1] Police v McLeod [2011] SASC 160.
I concluded that, insofar as the Magistrate’s order relied upon abuse of process principles (which normally leads to a permanent stay of proceedings as opposed to dismissal), the hearing before the Magistrate miscarried.
I deferred to the second stage of the appeal the question whether a permanent stay ought to have been granted, which I now address.
Further Evidence
In accordance with a direction which I gave on 4 October 2011, the Police provided further particulars in respect of each of the three counts the subject of the complaint.
At the further hearing of the appeal, I received the following further evidence from the Police.
1.Three affidavits of a security support officer employed by Westpac sworn on 17 August, 5 September and 26 October 2011 (admitted without objection by Mr McLeod).[2]
2.Oral evidence of the security support officer.
3.Three photographs taken by two of the Bank SA CCTV cameras in mid-October 2011.
4.An affidavit of the lead constable sworn on 16 August 2011[3] as to the location of the incident which occurred on the night.[4]
[2]    I deferred consideration of the first two affidavits in my initial reasons for judgment pending further argument and cross-examination.
[3]    I deferred consideration of this affidavit in my initial reasons for judgment pending further argument and cross examination.
[4]    Which I admitted, by agreement between the parties, on the basis that it represents evidence of where he believes the relevant incidents occurred, as opposed to the objective fact as to where in fact they occurred.
I received the following further evidence from Mr McLeod.
1.Paragraphs 1 to 5 of a further affidavit of Mr McLeod sworn on 21 October 2011.[5]
2.18 photographs taken by Mr McLeod in mid-October 2011 of the area in the vicinity of the Ambassadors Hotel and Bank SA branch in question.
3.Oral evidence of Mr McLeod.
[5] I rejected the tender of the remaining paragraphs of that affidavit for reasons which I gave during a ruling on the hearing of the second stage of appeal.
Factual Background
In addition to the facts addressed at [6] to [29] of my initial reasons for judgment, the following further facts were the subject of the further evidence.
Events of 28 May 2010
Mr McLeod gave detailed oral evidence of the events which occurred on 28 May 2010, and specifically addressed the location of the various persons involved in those events over time. I permitted cross-examination of Mr McLeod on the topic of the location of those events, but not more generally.
Mr McLeod’s evidence as to the first phase of the incident was as follows.
1.Mr McLeod was walking north along King William Street, having crossed its intersection with Waymouth Street, and reached the “laneway” immediately to the north of the Bank SA building.
2.Mr McLeod had crossed paths with the second and third participants, who were walking south and reached approximately the northern side of the Ambassadors Hotel awning/balcony in the vicinity of an electrical access square in the footpath.
3.Leading up to the participants reaching those respective points, the second and third participants shouted abuse and requests to Mr McLeod.
4.Mr McLeod reversed direction and walked south towards, with the intention of entering, the Ambassadors Hotel in order to reach safety. As he approached the Ambassadors Hotel, he kept as close to the buildings and as far from the road as possible. At that point, the footpath is approximately eight paces wide.
5.When Mr McLeod reached a point at which he was under the awning/balcony of the Ambassadors Hotel, the second and third participants approached him. At that point, the three participants were close to the front wall of the Ambassadors Hotel, being approximately one and a half metres away.
6.The third participant pushed Mr McLeod in the shoulders backwards with both arms. Mr McLeod in turn pushed him backwards by approximately two metres and stepped forward. At that point, those two participants were approximately in the centre of the footpath.
7.The second participant punched Mr McLeod from behind, one punch to the right side of his head and a second punch to his left shoulder.
8.Mr McLeod vigorously pushed the third participant, who stumbled backwards and ultimately over the kerb.
9.Mr McLeod turned around, and pushed the second participant onto the ground.
10.Mr McLeod stood over the second participant. The second participant put up his hands. Mr McLeod stood over him with his fist clenched in an indication that he was ready to hit him, if need be.
In relation to the second phase of the incident, Mr McLeod’s evidence was as follows.
1.Mr McLeod heard shouting behind him, turned around, and saw the lead constable, who wheeled around in front of him.
2.At that point, Mr McLeod and the lead constable were a little south of the ATM at the Bank SA branch.
3.Mr McLeod and the lead constable had a conversation, as a result of which they both walked to the north, past the ATM to an area near the intersection of the street frontage wall and the side wall of the alcove.
4.Mr McLeod and the lead constable had a further conversation, as a result of which they both moved up against the front wall of the Bank SA building.
In relation to the third phase of the incident, Mr McLeod’s evidence was as follows.
1.Mr McLeod and the lead constable had a further conversation.
2.The lead constable lunged at Mr McLeod, grabbed his right forearm, and began to twist it around. The lead constable said “I’m arresting you for assault and resist police”.
3.The lead constable twisted Mr McLeod’s right arm behind his back, pushing him hard up against the wall. Mr McLeod put up his left arm against the wall to protect himself, and the lead constable tried to pull down his left arm against the natural rotation of his shoulder.
4.Mr McLeod then became aware of the presence of the second constable, and was handcuffed.
The further affidavit of the lead constable exhibited a hand drawn diagram (not to scale) in which he showed the location of the altercation at the point at which he witnessed it. He showed it as being on the footpath in front of the most southerly door of the Bank SA branch and inward of a bench which is now present on the footpath (further north than according to Mr McLeod).
The lead constable showed the location of his initial discussion with Mr McLeod as being approximately in line with the southern side of the most northerly door to the Bank SA branch (further north than according to Mr McLeod) and the final discussion and handcuffing as being to the north of that door (again further north than according to Mr McLeod).
Period of Retention of CCTV Footage
The security support officer of Westpac gave evidence as follows.
1.Westpac’s computer systems only delete old footage when room is needed on the hard disc for new footage, and the oldest footage then present is deleted first to make room for the new footage.
2.On systems installed in the last two years, the systems usually have the capacity to retain footage for 90 days.
3.Generally, older systems do not have such a high capacity.
4.The system at the Bank SA branch in question is an older system.
5.The present capacity of the system at the Bank SA branch in question is limited to approximately 42 days.
6.The current system at the Bank SA branch is the same system with the same capacity as was the case in May 2010.
7.Westpac does generally attempt to retain footage for 90 days, if possible.
8.He could not say with 100 per cent certainty that footage taken on 28 May 2010 did not still exist 90 days later, but was very confident that it did not exist anywhere near 90 days later.
First Stage Analysis
In my initial reasons for judgment at [99], I identified five factors which must generally be established to justify the grant of a permanent stay in the case of lost evidence.
In this case, the first (existence and loss), second (relevance) and fourth (potentional exculpatory character) have been established. I turn to the third (materiality) and fifth (prosecution responsibility) factors.
Materiality of Lost Evidence
To assess this factor, I must make findings as to what parts of the incident were captured by the CCTV footage. In approaching this question, I consider that the onus of proof lies upon Mr McLeod (as the applicant for the stay). It was common ground that the standard of proof is the balance of probabilities.
I approach the findings bearing in mind two matters. First, it is important not to trespass upon the ultimate issues in the case which will be matters for trial if a stay is not granted, and in any event the parties on a stay application do not have the opportunity of full cross-examination of witnesses on all issues. Secondly, in line with the approach to the fourth factor, unless there are particular reasons to prefer the version of the Police over the version of the defendant as to the location of the events in question, it is appropriate to assess this factor prima facie on the defendant’s version as to the location.
As to the first count, on Mr McLeod’s evidence, the CCTV footage would have captured images of his walking north past the Bank SA branch, the other two participants walking south, Mr McLeod walking south towards the Ambassadors Hotel and the other two participants in the vicinity of the electrical access square before they walked west towards Mr McLeod. However, that footage would not be material in that it would be incapable of affecting the result of the case.
On Mr McLeod’s evidence, the CCTV footage would not have captured the first part of the altercation, and in particular the other participants pushing and punching Mr McLeod. I make this finding on the basis of the photographs taken by the CCTV cameras coupled with Mr McLeod’s evidence about these events occurring close to the wall of the Ambassadors Hotel building.[6] On Mr McLeod’s evidence and, on the same basis, the CCTV footage would not have captured Mr McLeod’s pushing the other two participants (although it would have captured the third participant traversing the footpath and onto the kerb as a result of the push).
[6] Mr McLeod also conceded in his evidence that “probably… the first attack would have been obscured”.
On Mr McLeod’s evidence, it is probable that the CCTV footage would have captured Mr McLeod standing over the second participant, the second participant raising his hands and Mr McLeod holding his clenched fist above the second participant. On the lead constable’s evidence, this part of the incident would not have been captured by the CCTV.
The lead constable’s version of what occurred is consistent with Mr McLeod’s evidence, with one exception. The lead constable said that he saw Mr McLeod “punch at” the second participant. This inconsistency on the oral evidence and the fact that, on Mr McLeod’s version, this part of the incident was within the field of view of CCTV cameras means that the CCTV footage was potentially material to the first count. I defer to the second stage an assessment of the likelihood and degree of materiality.
As to the second count, the Westpac security support officer gave evidence that the CCTV cameras do not capture sound, but only video. While it is possible that the CCTV cameras captured vision of Mr McLeod and the lead constable having a discussion concerning Mr McLeod’s name and address, the vision would not be material in the sense of being capable of affecting the result of the case on the second count.
As to the third count, on both Mr McLeod’s and the lead constable’s version, the conduct by which Mr McLeod allegedly (according to the evidence of the constables) resisted arrest was not captured by the CCTV cameras.
However, in relation to both the second and third counts, an element of the offence was the reasonable suspicion of the lead constable that Mr McLeod had committed an assault of the second participant. As the punching motion described by the lead constable is an important element of his grounds for suspicion, the footage of the first phase of the incident was potentially material to all three counts. Again, I defer consideration of likelihood and degree of materiality.
Unavailability of Footage the Responsibility of Prosecution
On the evidence of the Westpac security support officer, it is very likely that the CCTV footage had already been overwritten by 11 August 2010 when Mr McLeod wrote his letter (ie, 75 days after the incident on 28 May 2010).
Mr McLeod invited me to reject the evidence of the Westpac security support officer, on the basis that in his first two affidavits he had given evidence that the CCTV cameras did not capture footage of the footpath. I reject this contention because, read in context and as a whole (and especially the reference to the lead constable’s sketch), the first affidavit refers to the purpose of the configuration of the cameras (not being to capture footage of the footpath) rather than what they actually capture, and because no reason was identified why the officer should give false evidence concerning the period of time during which footage is retained.
Mr McLeod also referred to the original email and affidavit of the local Westpac officer, who had said that footage is generally only stored on a branch hard drive for a maximum of 90 days. However, it is evident that this refers to general practice, and not specifically to the Bank SA branch in question, and further refers to a maximum period rather than a minimum period. This evidence is consistent with that of the Westpac security support officer.
Accordingly, I accept the evidence of the Westpac security support officer and find that the CCTV footage was probably overwritten by 11 August 2010.
Finally, Mr McLeod argued that it was the responsibility of the prosecution to obtain all available relevant evidence of its own volition, rather than waiting for a request from the defendant. I reject that contention for the reasons set out at [131] to [134] of my initial reasons for judgment.
Accordingly, I conclude that the loss of the CCTV footage was not the responsibility of the prosecution. While it is conceivable that there might be exceptional cases in which a stay is justified notwithstanding the loss of evidence is not the responsibility of the prosecution, this case is not exceptional and the threshold stage for a permanent stay has not been passed.
Balancing Process
In the event that I am wrong in my conclusion about the responsibility for the loss of the CCTV footage, I proceed to balance the public interest in criminal proceedings being brought to trial against unfairness to Mr McLeod by reason of the loss of the evidence.
In this respect, I refer to the factors which I identified at [102] of my initial reasons for judgment.
As to importance of the evidence, I have found that the CCTV footage would not have captured the initial stages of the altercation (which, on Mr McLeod’s evidence, are critical in relation to the first count), the discussions between Mr McLeod and the lead constable, or the conduct which allegedly comprised the actus reus of resisting arrest.
The part of the incident which the CCTV footage probably would have captured was the part during which Mr McLeod was standing over the second participant. Most of what occurred at this point is common ground on the evidence of Mr McLeod and the two constables. The one difference is that the lead constable said that Mr McLeod had a punching motion towards the second participant. However, the following factors render that potential importance of the CCTV footage less than it would otherwise be.
1.The lead constable was unsure whether Mr McLeod’s fist connected with the second participant.
2.The second constable saw Mr McLeod’s fist clenched and withdrawn, as if he was ready to punch the second participant. He did not see a punching motion, and his evidence matches that of Mr McLeod.
3.The lead constable was a large distance away from the incident at the time and it was night time.
4.The CCTV camera was at least 30 metres away from the incident at that point, and does not have a high resolution at that distance, such that I cannot be confident that the footage would have sufficiently discriminated between Mr McLeod raising a clenched fist as opposed to punching at the second participant.
I conclude that, while potentially material, there is a low degree of likelihood that CCTV footage (if available) would have changed the result of the case.
If, contrary to my finding at [29] above, the CCTV footage had been retained by Bank SA for 90 days, I must assess the culpability of the prosecution for the loss of the evidence.
Given the receipt and terms of Mr McLeod’s letter dated 11 August 2010, I consider that it was incumbent on the prosecution either to take steps to seek to obtain the footage or alternatively to inform Mr McLeod that it was not the prosecution’s responsibility to do so.
However, I have to balance against this the fact that 75 days had already elapsed before Mr McLeod sent the letter, 80 days elapsed before the prosecution section received the letter, Mr McLeod did not identify in the letter that he had been informed that the footage was likely to be overwritten 90 days after it was recorded, Mr McLeod only sent the letter by post and Mr McLeod did not take any steps to follow up the letter or ensure that it was read and considered by a relevant police prosecution officer.
In his initial affidavit, Mr McLeod explained the reasons why he did not send the letter until 11 August 2010. Without in any way being critical of him or finding that he was in any way at fault, I need to weigh his objective responsibility for the loss of the evidence as against the responsibility of the prosecution. In all the circumstances, the prosecution’s responsibility is relatively small compared to the responsibility of Mr McLeod.
In relation to the strength of the prosecution case, leaving aside the CCTV footage, it is not a case (such as Police v Pakrou)[7] where it could be said that it is inherently an extremely strong case.
[7] (2008) 103 SASR 124; [2008] SASC 364.
In relation to alternative methods of protection and redress, the only relevant factor is the standard factor that the prosecution must prove its case beyond reasonable doubt.

Weighing all the circumstances, if I am wrong as to the first stage, the public interest outweighs the potential prejudice to Mr McLeod and an order for a permanent stay is not justified.
Conclusion
Mr McLeod has not demonstrated justification for a permanent stay in respect of the loss of the CCTV footage. The appeal is allowed, the orders made by the Magistrate are set aside, and the matter is remitted to the Magistrates Court