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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v McLeod (No 2)

Details

AGLC: Police v McLeod (No 2) [2011] SASC 204
Case: [2011] SASC 204
Decision Date: 23 November 2011

CaseChat Overview and Summary

In Police v McLeod (No 2), the appellant, Mr McLeod, sought a permanent stay of proceedings against the Police due to the loss of CCTV footage that was relevant to the alleged assault. The case was before the court as an appeal from a decision of a Magistrate who had dismissed Mr McLeod's complaint. The primary issue before the court was whether the Magistrate should have granted a permanent stay of proceedings due to the loss of the CCTV footage.

The court examined the evidence provided by both Mr McLeod and the Police, which included affidavits, photographs, and oral testimony. The court noted that the CCTV footage was critical to the case, but it was lost, and there was no evidence that the loss was due to any fault on the part of the Police. The court also considered the potential prejudice to Mr McLeod against the public interest in the administration of justice. The court concluded that the public interest in ensuring that the administration of justice is not impeded by the loss of evidence outweighed any potential prejudice to Mr McLeod. Therefore, the appeal was allowed, the orders made by the Magistrate were set aside, and the matter was remitted to the Magistrates Court for further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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