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 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.
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”.
The defence called Peter Mattou, the security manager of the store. On the voir dire he gave evidence that one of the cameras located in the basement may have been able to capture the image of the respondent circling in the gaps between signs and fixtures. He said that if there was any footage from the store’s CCTV system, it is the store’s policy to provide it to police, together with statements and photographs. He said that the camera operator either indicates whether or not there is any footage, or someone inspects whether there is any footage. He said no matter how brief or unhelpful the image, if they have it, they inform police.
Cameron Cilento gave evidence that he was a uniformed security officer located on the ground floor of the store at about 10.45 am on 28 April 2007. He gave the following evidence as to the apprehension of the respondent:
A.I received a call on the radio to say that there was a male that had stock on him that wasn’t paid for and he was heading towards an exit of Grenfell Street. And when I got to the position where I could see the exit I saw a male that fitted the description that they had given me and I radioed in to the staff door to ask if that was the male that they said that there was no footage of that area but said that he matched the description and saw the male exit into the foyer.
…
Q.How were you made aware, you said ‘fitted the description’, how were you aware of a description of this person.
A.Well they what used to happen was the staff door or the person operating a camera would put out a call to the whole team which everyone receives and they would say like such and such is heading towards here and they’ve got this and this is what they’re wearing and this is their hair colour etc. etc. so when I heard that there was a man on the ground floor heading towards the exit I went over towards the exit to see if I could see anyone fitting that description and then when I thought I did I radioed that description back to the staff door which they confirmed.
In cross-examination, Mr Cilento gave the following evidence:
Q.You said that you’d heard a call on the radio saying that there was a male leaving the store heading towards Grenfell Street, is that right.
A.Heading towards the exit, the specific exit.
Q.That call included a description of what the person looked like.
A.Yes.
Q.And that was coming from, I think you call it the staff door.
A.The staff door, yes.
Q.Is that the person who operates the close circuit television cameras.
A.Yes.
…
A.… [I]f I had seen somebody say for example I had seen somebody conceal something on that person and I thought that they might exit the store without paying for it I would then relay that to the staff door but if they couldn’t see the person I would still give a description but because I might be in close proximity to the person that I thought might steal it my radio would be turned down so therefore if anyone else needed confirmation of the description they could then get it from the staff door, who would either write it down or make a mental note of it so that that way there could always be communication between whoever else was on the team and the staff door.
Mr Cilento had been the first security officer to approach the respondent. He said he stopped him as he was about to exit onto Grenfell Street. Mr Cilento was questioned as to whether he had seen the respondent press the button for the lift and whether he had collided with, and spoken aggressively to, the respondent as the respondent had returned into the store from the car park lift foyer. Mr Cilento denied those suggestions. He said the respondent immediately argued he had not yet left the store and, therefore, could not be apprehended. He could not recall the respondent having said he was going to the first floor to see some more clocks to which he was directed, but then realised he was going the wrong way. Mr Cilento said it was clear the car park lift foyer was not part of the store.
The matter was adjourned to 10 June 2008 for the continuation of the trial. At this time, the defence renewed its application for a stay of the proceedings.
Magistrate’s Reasons
The magistrate outlined the efforts the respondent’s solicitor had made to obtain CCTV footage of the relevant area of the store on the relevant day. She noted that although Mr Bryant gave evidence that the respondent’s image was not, and could not have been, captured by the CCTV cameras, Mr Cilento gave evidence from which the inference could be drawn that the respondent’s image had been captured. The magistrate outlined the prosecution case and the evidence relevant to her ruling.
On the evidence given, she was satisfied that:
…
·   The control room (camera operator) was involved in the communication as to where the defendant was and the identification. …
·   The camera system consisted of recording on a digital hard drive which was retained for two weeks and a video which was retained for seven days.
…
·   Bryant later viewed the tapes and formed the view that the defendant was not shown on them. …
·   Bryant did not mention checking the tapes in either of his two statements to police
·   The tapes were not given to police. The police were told that there was no evidence on the video footage. They did not check the tape themselves
·   There was at least one tape still available to view after the solicitor’s initial request
...
·   It is central to the defence case not only to view the tapes as to whether or not the defendant is shown in the area but as to whether he can be seen moving, ‘circling’ or removing the labels. The labels themselves were not located
…
·   If a person were ‘circling’, they may be picked up by the camera
…
·   When he was on the ground floor [Mr Cilento] saw a man fitting the description which had been given on the radio from the person operating the closed circuit TV camera
·   Cilento says that when he got to the Grenfell Street exit he identified the defendant as a result of the radio message from the control room as to his description. However I note that there was no evidence that Bryant had radioed in a description. His evidence was only that he had asked for help. There must be a possible inference then that the radio operator may have seen the individual on the camera.
The magistrate then went on to conclude:
I am satisfied that the missing CCTV footage may have given the defendant the opportunity to support his version of events or to cast doubt on the inferences sought to be drawn by the prosecution.
I bear in mind that a stay is only given in exceptional circumstances. However, I have formed the view that the defendant is unable to get a fair trial in the absence of the CCTV footage. He and his counsel are unable to view the tape and to test Bryant’s assertion that the defendant does not appear on it. This is in contrast to his evidence that, when he viewed the tape, it was clear that the camera operator was trying to locate the defendant. I note further that Bryant only viewed the tape once whilst the defendant’s record of interview with the police was progressing.
The destruction of the tape prevents the defendant’s access to it. There is no other way that the defendant could have independently challenged the prosecution version of events or supported his own. I bear in mind the cases to which I have been referred including Holmden v Bitar (1987) 47 SASR 509; Duncombe-Wall v Police unrep Lander J S6754 2 July 1998 and CSDA v Bourke unrep [1999] SASC 154.
There is no criticism of Bryant who appeared honest and who was acting in accordance with store policy. However, for the reasons already stated, I do not consider that the defendant can receive a fair trial in the absence of the chance to assess the contents of the CCTV tape. The application for the stay will therefore be granted.
Appeal
Mr Grant, on behalf of the appellant, argues that the magistrate erred in her application of the law as to the granting of a stay in criminal proceedings. He argues that in light of the low likelihood of the footage being of any forensic assistance to the respondent, compared to the strength of the prosecution case, the magistrate too loosely applied the notion of fairness. In support of this argument, he cites the following comments of the Bleby J, in R v Ulman-Naruniec:[1]
The cases suggest that there will be a stay granted on the grounds of abuse of process where plainly material evidence is no longer available, being evidence, the lack of which would mean that the prosecution cannot prove its case or evidence without which it can be shown that the accused has been denied an opportunity to mount a defence.
…
I am not aware of any case where a stay has been granted on a ground of abuse of process because evidence, not shown to be essential to the defence case, merely might contain something of some assistance or might promote some relevant line of inquiry. If that were the case, many a prosecution might be stayed because of some failure on the part of police to investigate a particular line of inquiry that cannot later be pursued.
[1] (2003) 143 A Crim R 531, 539‑540; [2004] SASC 437 [32], [37].
Mr Grant further argues that the magistrate failed to weigh the competing considerations of the public interest in ensuring the respondent is able to receive a fair trial and the public interest in seeing the respondent brought to trial.
Ms Spence, on behalf of the respondent, argues that to justify a stay of criminal proceedings, it is sufficient if the destroyed evidence might have given the respondent an opportunity to support his version of events or cast doubt upon the inferences sought to be established by the prosecution. She argues that the strength of the prosecution case is not relevant to whether a stay is to be granted, and that if it were relevant, the magistrate sufficiently considered it. Not only did the respondent lose the chance to test the accuracy of Mr Bryant’s assertion that he did not appear on the footage, but there was an inference open on the evidence, and drawn by the magistrate, that he did, in fact, appear on the footage.
The principles regarding the power to stay criminal proceedings are now well established. One of the bases is the inability of a defendant to have a fair trial. The authorities make it clear that a stay should only be granted in exceptional circumstances, and only if there is no other remedy that could cure the unfairness. In Jago v District Court (NSW), Mason CJ stated the test as follows:[2]
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial. At the same time, it should not be overlooked that the community expects trials to be fair... The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. … In any event, a permanent stay should be ordered only in an extreme case …
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”
[Citations omitted.]
[2] Jago v District Court (NSW) (1989) 168 CLR 23, 33-34; [1989] HCA 46 [20]-[21].
As to the granting of a stay in criminal proceedings where evidence has been destroyed, Wicks J, in Commonwealth Service Delivery Agency v Bourke, said:[3]
Counsel for the prosecution referred me to a number of authorities on the issue of a stay in the context of destruction of evidence. In Duncombe-Wall v Police the appellant was charged with threatening to cause harm without lawful excuse. … [A] tape was the only evidence capable of corroborating the appellant’s version of events, and if it had done so, the evidence given by the appellant’s former wife and son would have had to have been rejected rendering it very difficult to find the appellant guilty beyond reasonable doubt.
Lander J held that it was essential to a fair trial of the matter that the appellant be given the opportunity to support his version of events and proceeded to order a permanent stay of the proceedings. It was not to the point that the prosecution’s case was overwhelmingly strong.
Duncombe-Wall is on all fours with this case. In essence what counsel for the prosecution put to me was that theirs is an overwhelmingly strong case because there is evidence, in addition to the fortnightly forms from which inferences may be drawn, that the respondent is guilty of knowingly receiving a benefit to which he was not entitled in whole or in part. The fortnightly forms were not the only evidence going to the respondent’s credibility, there was also the record of interview. However, this submission misses the point. The fortnightly forms were the only evidence capable of corroborating the respondent's version of events, and now they are gone for ever.
[3] Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299, 303; [1999] SASC 154 [12]‑[14].

In my view, the magistrate in the present case was correct to stay the proceedings. Although the magistrate in her reasons was of the view that Mr Bryant “appeared honest”, the nature of the defence was an attack upon the accuracy of Mr Bryant’s observations. Indeed, the magistrate drew the inference that Mr Bryant’s observations were not entirely accurate. In order to overcome the absence of the CCTV tape, the appellant sought to rely, primarily, upon the observations of Mr Bryant, who was the only witness to view the tape, as to what images were on it. Mr Bryant is the same witness who gave evidence of observing the behaviour of the respondent, which was the basis of the charge.
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.