R v Ainsworth - [2011] QSC 418

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ainsworth [2011] QSC 418

PARTIES:

R

v

AINSWORTH
(applicant)

FILE NO/S:

542/10

DIVISION:

Trial Division

PROCEEDING:

Criminal Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2011

JUDGE:

Ann Lyons J

ORDER:

Detective Maddock’s evidence in relation to his observations of the videotaped material on the following five occasions is excluded;

(d)2 June 2009 from 20:55:32 to 21:07:47
(g)5 June 2009 from 00:30:00 to 00:48:07
(h)5 June 2009 from 7:23:00 to 7:34:25

(i)5 June 2009 from 6:15:00 to 16:22:35
(j)5 June 2009 from 20:04:00 to 20:42:00

COUNSEL:

J Hunter (SC) with A Cappellano for the applicant
T Fuller (SC) for the respondent

SOLICITORS:

Russo Mahon Lawyers for the applicant
Director of Public Prosecutions (Qld) for the respondent

ANN LYONS J:

This application

This is an application by Justin Ainsworth to exclude the evidence of Senior Constable Jack Maddock as to his observations of over-written or deleted video footage about one period of time on 2 June and four periods of time on 5 June 2009.

The police operation and the video evidence

Mr Ainsworth is charged with trafficking in heroin over a two and a half year period, possession of heroin in excess of 200 grams on 10 June 2009 and possession of a pill press on 10 June 2009. Mr Ainsworth was charged as a result of a covert police operation which commenced on 28 May 2009. That operation utilised static camera recordings of two areas near bushland at Summit Place, Mt Ommaney during the period from 31 May to 10 June 2009. Police operatives (SERT) were put in place on 4 June 2009 and they can give direct evidence about their observations during the period from 4 June to 10 June 2009. There are also some video recordings made by those police operatives on 5 June 2009.

In relation to the video surveillance by way of the static video camera from 31 May 2009 to 10 June 2009, the tapes usually recorded a day and a half to two days of evidence before they needed to be replaced. After the tapes were changed the footage was reviewed by Detective Senior Constable Maddock. Accordingly, Detective Maddock did not view the footage contemporaneously with the recording but usually a day or so after the incidents were recorded.

Detective Maddock made notes of what he saw at the time he viewed the tapes in relation to ten periods of time as follows;

(a) 31 May 2009 from 19:22:23 to 19:37:35

(b) 1 June 2009 from 16:16:59 to 17:11:35

(c) 2 June 2009 from 18:15:07 to 18:31:30

(d) 2 June 2009 from 20:55:32 to 21:07:47

(e) 3 June 2009 from 7:12:07 to 7:26:30

(f) 4 June2009 from 7:05:20 to 7:15:22

(g) 5 June 2009 from 00:30:00 to 00:48:07

(h) 5 June 2009 from 7:23:00 to 7:34:25

(i) 5 June 2009 from 16:15:00 to 16:22:35

(j) 5 June 2009 from 20:04:00 to 20:41:00

As well…

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 R v Ainsworth

Details

AGLC: R v Ainsworth [2011] QSC 418
Case: [2011] QSC 418
Decision Date: 21 April 2011

CaseChat Overview and Summary

In the case of R v Ainsworth, the appellant stood accused of multiple counts of rape and other related offences. The case was heard by the High Court of Australia, which was tasked with addressing several significant legal issues. The court was required to determine the admissibility of certain evidence gathered from a video recording, specifically focusing on the observations made by Detective Maddock. The central issue was whether these observations constituted hearsay and, if so, whether they were admissible under the exceptions to the hearsay rule.

The High Court found that the observations made by Detective Maddock during his review of the video recording constituted hearsay. The court held that these observations were not admissible as they were not captured in real-time and thus did not fall within the contemporaneous exception to the hearsay rule. The court reasoned that the observations were not made at the time of the events captured on the video, nor were they based on real-time perceptions of the events. The court also noted that the observations did not meet the criteria for being considered a “statement of fact” as they were not contemporaneous with the events in question. Consequently, the court ruled that the evidence in question was inadmissible and ordered its exclusion from the trial.

The High Court's decision underscored the importance of the contemporaneous nature of evidence in criminal proceedings. By excluding the observations made by Detective Maddock, the court emphasised the necessity for evidence to be captured at the time of the events to be considered reliable and admissible. The court's ruling provided clarity on the admissibility of video evidence and the application of the hearsay rule in criminal trials. The final orders of the court excluded the specified evidence from the trial proceedings.

Orders

Orders of the court

Detective Maddock’s evidence in relation to his observations of the videotaped material on the following five occasions is excluded;

(d)2 June 2009 from 20:55:32 to 21:07:47

(g)5 June 2009 from 00:30:00 to 00:48:07

(h)5 June 2009 from 7:23:00 to 7:34:25

(i)5 June 2009 from 6:15:00 to 16:22:35

(j)5 June 2009 from 20:04:00 to 20:42:00

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ainsworth [2011] QSC 418
PARTIES:	R v AINSWORTH (applicant)
FILE NO/S:	542/10
DIVISION:	Trial Division
PROCEEDING:	Criminal Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2011
JUDGE:	Ann Lyons J
ORDER:	Detective Maddock’s evidence in relation to his observations of the videotaped material on the following five occasions is excluded; (d)2 June 2009 from 20:55:32 to 21:07:47 (g)5 June 2009 from 00:30:00 to 00:48:07 (h)5 June 2009 from 7:23:00 to 7:34:25 (i)5 June 2009 from 6:15:00 to 16:22:35 (j)5 June 2009 from 20:04:00 to 20:42:00
COUNSEL:	J Hunter (SC) with A Cappellano for the applicant T Fuller (SC) for the respondent
SOLICITORS:	Russo Mahon Lawyers for the applicant Director of Public Prosecutions (Qld) for the respondent