Police v Sherlock

Case [2009] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v SHERLOCK

[2009] SASC 64

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Kourakis)

12 March 2009

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL

Respondent charged with shoplifting - incident giving rise to charge alleged to have occurred in a department store - security guard gave evidence that he observed respondent remove security labels from store stock and place stock into carry bag - security camera located close to the relevant area of the store - security guard gave evidence that after the respondent was apprehended, security guard viewed film recorded by camera and did not see the respondent on the film -  security guard did not give police film - video footage recorded at the store at relevant time was erased as a result of re-use of film - no carelessness or misconduct on the part of the security guard - three months after the incident, respondent's solicitors requested film recorded at relevant time - film no longer existed - on the basis of the absence of film, respondent sought permanent stay of proceedings against him - extensive signage and fixtures throughout store - security guard gave evidence that due to signage and fixtures, camera's view of relevant area obscured - another security guard called by respondent confirmed that camera would have been unable to capture vision of a person in the relevant area, but gave evidence that camera might have captured momentary glimpses of the respondent as he moved through the store - Magistrate granted permanent stay - on appeal to Supreme Court, single Judge upheld decision of Magistrate - appeal to Full Court of Supreme Court - whether unfairness in a criminal trial enlivens power to grant permanent stay of proceedings on the basis of an abuse of process - if so, whether trial of respondent would be unfair as a result of absence of film  - if so, whether, after taking into account all other relevant factors, a permanent stay of proceedings was justified.

HELD: appropriate to proceed on basis that a court may stay trial of a charge if trial would be unfair - concept of unfairness in this context a narrow one - no way of knowing whether film recorded something relevant - if film did record something relevant, no way of knowing whether it would have assisted prosecution or defence - absence of film does not deprive court of ability to assess evidence to be led - unfairness of relevant kind not present - even if such unfairness was present, having regard to public interest in bringing accused persons to trial, and exceptional nature of remedy, not an appropriate case for grant of a stay - appeal allowed.

Magistrates Court Act 1991 (SA) s 5, referred to.
Barton v The Queen (1980) 147 CLR 75

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Police v Sherlock [2009] SASC 64
Case
[2009] SASC 64
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CaseChat Overview and Summary

The case of Police v Sherlock involves a respondent who was charged with shoplifting. The alleged incident took place in a department store where a security guard observed the respondent removing security labels from store stock and placing the stock into a carry bag. The security guard confirmed that he did not see the respondent on the security footage because the camera's view of the relevant area was obscured by signage and fixtures. The respondent sought a permanent stay of the proceedings due to the absence of the video footage, arguing that it would be unfair to proceed with the trial without it. The matter was initially decided in favour of the respondent by the Magistrate and the single Judge of the Supreme Court, but was appealed to the Full Court of the Supreme Court.

The legal issues before the Full Court were whether the unfairness in a criminal trial could justify a permanent stay of proceedings on the basis of an abuse of process, whether the absence of the video footage would render the trial unfair, and whether, after considering all relevant factors, a permanent stay of proceedings was justified. The Full Court held that while it was appropriate to consider the possibility of staying a trial if it would be unfair, the concept of unfairness in this context was narrow. The Full Court found that the absence of the video footage did not deprive the court of the ability to assess the evidence to be led, and therefore, the unfairness of the relevant kind was not present. Even if such unfairness was present, the Full Court considered the public interest in bringing accused persons to trial and the exceptional nature of the remedy of a stay, and concluded that it was not an appropriate case for the grant of a stay.

The Full Court allowed the appeal and set aside the decision of the single Judge, ordering that the appeal be allowed, the order by the Magistrate that the proceedings be stayed be set aside, and the proceedings be remitted for further hearing and determination by the Magistrates Court. The Full Court left it to the Magistrate to determine whether to hear the matter or whether the trial should begin afresh before another Magistrate. The Full Court's decision emphasised the narrow scope of unfairness in criminal trials and the importance of considering the public interest and the exceptional nature of the remedy of a stay in deciding whether to grant a permanent stay of proceedings.

Orders

Orders of the court

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Background

Background to the litigation

Similarly, in R v Williams at [7], the Court of Appeal said:[7]It was conceded that there is no general rule in Australia that a complete investigation is a necessary element of the trial process or of a fair trial. As in Penney, in the present case failure to pursue a particular line of investigation gives no ground for thinking that the appellant has been deprived of a proper opportunity of exculpation. It is nearly always possible to make suggestions of further matters that might have been investigated in criminal matters, although it must be said that the present case is a very strong example of multiple failures to follow up obvious leads. In the end, however, the question is whether the evidence actually adduced was adequate and whether the trial was fair. The unsatisfactory nature of the investigation must therefore be kept in mind as a potential factor when this overall question is considered.Footnote omittedApplication of the principles to the facts Some would say that it is unfair that the trial of a charge should proceed without Mr Sherlock being afforded the opportunity to view the film in question and, if it assists his case in some way, to make use of it in evidence. That opinion must rest on an assumption that a trial is unfair if evidence that is possibly relevant is not available to the accused in criminal proceedings, for the accused to use as he or she sees fit. For reasons that I have indicated, unfairness in that broad sense is not relevant. The conduct of court proceedings, including criminal proceedings, can be affected by a variety of circumstances that result in material that is or might be relevant not being available to an accused person. It has never been the case that a trial is fair only if all potentially relevant material is available to the parties, or at least to the accused person in criminal proceedings. Such a wide notion of fairness cannot be supported by the authorities. It cannot be said in this case, nor did Mr Edwardson argue, that Mr Bryant had been guilty of any misconduct. On the Magistrate’s findings it is possible that, by mistake, he failed to see something relevant on the film, or failed to view all relevant film. Any such mistake was an innocent mistake. In saying this I do not assume that a finding of carelessness or misconduct on his part would necessarily lead to a conclusion that the proceedings should be stayed. In the present case there is no basis for criticising the investigation of the offence by the police. Having regard to the evidence of Mr Matto, and that of Mr Bryant, the investigating police could reasonably have assumed that any relevant film would have been provided to them. It might be said that the police investigation was incomplete or deficient, even though the investigating officers are not to be criticised. It might be said, with the benefit of hindsight, that they should have insisted on being given all film relating to the relevant time, so that they could decide whether the film was relevant or not. I do not agree that this criticism can be made. But even if it can be said that the investigation was incomplete or deficient, for the reasons given by Callinan J in Penney I consider that such inadequacy in the investigation of the offence cannot itself provide a basis for a stay.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I referred earlier to the circumstance that the Magistrate was able to and did find that Mr Sherlock had removed one of the ultra labels. It was not necessary for the Magistrate to make that finding when deciding whether the proceedings should be stayed. But the fact that the Magistrate made the finding, despite the missing evidentiary material, does not sit easily with her conclusion that the trial would be unfair.Conclusion Some decisions by single Judges of this Court, to which we were referred in argument, appear to me to invoke too wide a concept of unfairness, and to give insufficient weight to the restraining factors identified by the High Court in Jago in particular. It is not necessary to refer to those decisions individually. In the end, each of them turns on the facts of the particular case. They are referred to in my reasons in Sedmak and in the reasons of Kourakis J in Pakrou. It will only be in exceptional circumstances that the unavailability of evidentiary material that might assist the defendant in criminal proceedings, there being no misconduct by the prosecution (or those for whom it is responsible), and no breach of the obligation of disclosure borne by the prosecution, will support a conclusion that the proceedings are unfair, let alone a conclusion that they should be stayed. I would allow the appeal. I would set aside the decision of the single Judge dismissing the appeal against the Magistrate’s decision. I would order that an order be substituted allowing the appeal to this Court, setting aside the order by the Magistrate that the proceedings be stayed, and remitting the proceedings for further hearing and determination by the Magistrates Court. Bearing in mind the finding by the Magistrate that Mr Sherlock removed the ultra label, I leave it for the Magistrate to determine, in the light of submissions to her, whether or not she should hear the matter, or whether the trial should begin afresh before another Magistrate. SULAN J: I agree with the reasons of the Chief Justice. I would allow the appeal. I agree with the orders proposed by the Chief Justice. KOURAKIS J: I would allow the appeal. I agree with the orders proposed by the Chief Justice. I also agree with the reasons of the Chief Justice save for one matter to which I will shortly refer. I add the following observations. Although the concept of abuse of process cannot be restricted to “defined and closed categories”, it appears to me that there is some utility in the taxonomy that the English Courts have adopted. The first class is identified by reference to the concept of an unfair trial, in the sense that because of one or more features of the procedure adopted or the evidence proffered, the resulting judgment will necessarily be unsafe or unsatisfactory. Cases where the evidence relied on by the prosecution is insusceptible of rational or safe forensic evaluation, whether because of delay or any other cause, are obvious examples. It may be that if a stay is granted in such cases it is because it is an abuse of process to bring an action that is bound to fail. In any event, before a case is stayed on the ground that the trial cannot be fair, due regard must be given to the availability of an appeal in which a conviction unfairly obtained can be quashed.

Ratio Decidendi

Legal Principle Established

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