Police v Sherlock - [2008] SASC 294

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SHERLOCK
[2008] SASC 294
Judgment of The Honourable Justice David
31 October 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Prosecution appeal against decision of magistrate to grant stay of proceedings – respondent charged with theft of items from department store – member of security personnel gave evidence that he observed respondent remove security tags from items – same member of security personnel gave evidence that respondent did not appear on closed circuit television footage of relevant area at relevant time – closed circuit television footage sought by defence but destroyed – magistrate found that respondent appeared in closed circuit television footage – whether magistrate erred in decision to stay the proceedings.
Held: Appeal dismissed – reliability of observations of respondent both in person and on tape central issue – magistrate did not err in decision to stay proceedings.
Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 134(1), referred to.
Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; Jago v District Court (NSW) (1989) 168 CLR 23, applied.
R v Ulman-Naruniec (2003) 143 A Crim R 531, considered.

POLICE v SHERLOCK
[2008] SASC 294
Magistrates Appeal
DAVID J.
Introduction

This is a prosecution appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), against the decision of a magistrate to grant a stay of proceedings.
The respondent was charged on Complaint with having committed theft, an offence contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that on 28 April 2007 the respondent removed labels from items at a store and then exited the store with the items in his possession.
A trial in relation to the charge commenced in the Adelaide Magistrates Court on 5 June 2008. After hearing the evidence of three witnesses, the magistrate granted a stay of the proceedings because CCTV footage, showing the area where the offending was alleged to have taken place, had been destroyed.
Background
At the beginning of the trial, the defence tendered an affidavit of Robert Lempens, the respondent’s solicitor, making an application to stay the proceedings. The affidavit deposed to the fact that Mr Lempens first made enquiries with the prosecution on 12 July 2007 as to the existence of CCTV footage of the incident. On 17 July 2007, Mr Lempens was informed by the prosecution that there was “no mention in the file that the incident was captured on CCTV and there is none booked into police property”. On 27 September 2007, Mr Lempens sought an explanation as to the absence of CCTV footage. On 30 October 2007 and 7 December 2007, the prosecution confirmed the absence of CCTV footage, citing an addendum statement from Jeremy Bryant. In the meantime, Mr Lempens had obtained a report from a private investigator in…

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 Sherlock

Details

AGLC: Police v Sherlock [2008] SASC 294
Case: [2008] SASC 294
Decision Date: 31 October 2008

CaseChat Overview and Summary

The case of Police v Sherlock involved a prosecution appeal against a magistrate's decision to grant a stay of proceedings in relation to a charge of theft of items from a department store. The respondent was alleged to have removed security tags from items and was observed by a member of security personnel. However, the same member of security personnel also testified that the respondent did not appear in the closed-circuit television (CCTV) footage of the relevant area at the relevant time. The defence sought the CCTV footage, but it was destroyed before it could be reviewed. The magistrate found that the respondent did appear in the CCTV footage and granted a stay of proceedings. The central legal issue was whether the magistrate erred in deciding to stay the proceedings.

The court examined the reliability of the observations of the respondent both in person and on tape. The magistrate concluded that the respondent could not receive a fair trial in the absence of the CCTV footage and that the unfairness in the trial could not be remedied by any other means. The court agreed with the magistrate's conclusion and dismissed the appeal. The court found that the magistrate did not err in deciding to stay the proceedings. The reliability of the observations of the respondent both in person and on tape was central to the decision.

The court's reasoning was based on the fact that the defence was left without the means of objectively ascertaining the actions of the respondent as they appeared on the tape. The court found that the unfairness in the trial could not be remedied by any other means and that the respondent could not receive a fair trial in the absence of the CCTV footage. The court dismissed the appeal and held that the magistrate did not err in deciding to stay the proceedings. The reliability of the observations of the respondent both in person and on tape was central to the decision.

Orders

Orders of the court

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Background

Background to the litigation

A trial in relation to the charge commenced in the Adelaide Magistrates Court on 5 June 2008. After hearing the evidence of three witnesses, the magistrate granted a stay of the proceedings because CCTV footage, showing the area where the offending was alleged to have taken place, had been destroyed.Background At the beginning of the trial, the defence tendered an affidavit of Robert Lempens, the respondent’s solicitor, making an application to stay the proceedings. The affidavit deposed to the fact that Mr Lempens first made enquiries with the prosecution on 12 July 2007 as to the existence of CCTV footage of the incident. On 17 July 2007, Mr Lempens was informed by the prosecution that there was “no mention in the file that the incident was captured on CCTV and there is none booked into police property”. On 27 September 2007, Mr Lempens sought an explanation as to the absence of CCTV footage. On 30 October 2007 and 7 December 2007, the prosecution confirmed the absence of CCTV footage, citing an addendum statement from Jeremy Bryant. In the meantime, Mr Lempens had obtained a report from a private investigator in which it was stated the store’s security manager had advised that there were over 30 CCTV cameras operating in the store and that the area where the offending was alleged to have occurred was well covered, but that data recorded could not be viewed unless subpoenaed. After hearing argument, the magistrate ruled:The difficulty with this matter is for me to form, in the absence of hearing the evidence, for me to form an assessment of what indeed is missing in the evidence and so I am inclined to conduct both the application for an abuse and the trial as it were concurrently since I’m going to have to hear the evidence in any event or some of it … If at any particular point one or other or both of you decide that I could or I should form the view that the evidence is sufficient to renew that application then I give you liberty to do so but for the time being we’ll commence the trial. The prosecution called two security officers who were involved in the detection and apprehension of the respondent at the store on the day of the alleged offending. The defence called the security manager of the store on the voir dire to explain the layout and operation of the store’s security cameras.Evidence at Trial and on the Voir Dire Jeremy Bryant gave evidence that he was a “plain clothes” security officer located in the basement of the store at 10.45 am on 28 April 2007. As he boarded the escalator to move up to the ground floor of the store, he noticed the respondent looking about his person in an abnormal way in the Television and Sound Department of the store. On reaching the ground floor Mr Bryant immediately returned to the basement on the escalator. He said he observed the respondent select a wall clock in a box, pick at and remove its security label, before placing it into a crinkled store bag. He said the respondent then walked off, circling the Television and Sound Department of the store.

Evidence

Evidence Before The Court

The prosecution called two security officers who were involved in the detection and apprehension of the respondent at the store on the day of the alleged offending. The defence called the security manager of the store on the voir dire to explain the layout and operation of the store’s security cameras.Evidence at Trial and on the Voir Dire Jeremy Bryant gave evidence that he was a “plain clothes” security officer located in the basement of the store at 10.45 am on 28 April 2007. As he boarded the escalator to move up to the ground floor of the store, he noticed the respondent looking about his person in an abnormal way in the Television and Sound Department of the store. On reaching the ground floor Mr Bryant immediately returned to the basement on the escalator. He said he observed the respondent select a wall clock in a box, pick at and remove its security label, before placing it into a crinkled store bag. He said the respondent then walked off, circling the Television and Sound Department of the store. After Mr Bryant saw the respondent place the wall clock in the store bag he radioed the camera operator, whom he referred to as “base”, for “observation help” and “back-up”. The security officers each had a radio that was tuned into the same frequency, and if the other security officers did not hear the call clearly, Mr Bryant said they were then able to refer to “base”. He agreed that the camera operator located at base is immediately put on alert to start looking at the monitors to see whether he or she can observe the activity that has been reported. Upon reaching the clock radio display, Mr Bryant said the respondent selected a clock radio in a box and walked west, while he picked at and removed its security label, and then also placed it into the store bag. Mr Bryant followed the respondent and maintained sight at a proximity of at least five metres. The respondent then walked back east through the department and halfway up the stairs before he stopped, returned to the basement and looked in Mr Bryant’s direction. The respondent then went back up the stairs and Mr Bryant followed him. Mr Bryant then heard a call over the radio from another security officer, Cameron Cilento, to the effect that the respondent was exiting the store via the car park lift foyer on the ground floor. Mr Bryant did not see what the respondent did with the security labels once he removed them, nor was the area later inspected. In cross‑examination, he agreed that somebody else could have removed the security labels and that he may have been mistaken about having seen the respondent picking the labels off the items. A store price tag was on each of the items recovered from the respondent, but neither item had any security label. Mr Bryant gave evidence that on 28 April 2007, there were six cameras monitoring the store floor. Some of the cameras were able to rotate and zoom. The two cameras located in the basement were of that kind. Images from the cameras were recorded onto a digital hard drive and kept for two weeks. Images that the operator was specifically monitoring at any one time were also recorded onto VHS and kept in that format for one week. He gave evidence that because of floor to ceiling pillars and sale signs and fixtures, neither of the cameras located in the basement of the store would have captured the image of the respondent. He said that following the alleged offending, he had rewound and reviewed the VHS tape personally and could not see the respondent on it. All he could see was a lot of moving backwards and forwards and zooming around fixtures. He agreed that in neither of the statements he prepared for police had he made any mention of having reviewed the footage for an image of the respondent. He said he had reviewed the footage while police were interviewing the respondent at the store, and had informed them there was “no evidence on the video footage”.

Decision

Reasons for decision

DAVID J

In the sense of the trial, Mr Bryant’s reliability, both as to his observations of the respondent’s behaviour and also as to his observations of what he saw on the tape before it was destroyed, was an issue. What was on the tape was central to deciding this issue. The defence at trial were left without the means of objectively ascertaining the actions of the respondent as he appeared on the tape. I agree with the magistrate’s conclusion that in those circumstances, in the absence of the CCTV footage, the respondent was unable to receive a fair trial and that the unfairness in the trial could not be remedied by any other means.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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