R v Arvidson

[2008] NSWCCA 135

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Regina v ARVIDSON [2008] NSWCCA 135

FILE NUMBER(S):
2007/13557

HEARING DATE(S):
13 May 2008

JUDGMENT DATE:
20 June 2008

PARTIES:
Regina (Appellant)
Elizabeth Karen ARVIDSON (Respondent)

JUDGMENT OF:
Beazley JA Johnson J McCallum J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/1009

LOWER COURT JUDICIAL OFFICER:
Hughes DCJ

LOWER COURT DATE OF DECISION:
29 April 2008

COUNSEL:
L Lamprati SC (Appellant)
P Strickland (Respondent)

SOLICITORS:
Solicitor for Public Prosecution (Appellant)
Legal Aid Commission (Respondent)

CATCHWORDS:
CRIMINAL LAW – Crown Appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – exclusion of prejudicial evidence - whether exclusion eliminates or substantially weakens prosecution case – jurisdiction to hear appeal - jurisdictional question to be determined on the whole of the evidence in Crown case
CRIMINAL LAW – Crown Appeal - Evidence Act 1995 s 137 - exclusion of prejudicial evidence - whether probative value of evidence outweighed by prejudice – excluded evidence held to form part of a circumstantial case - exclusion unreasonable

LEGISLATION CITED:
Crimes Act 1900, ss156, 158
Criminal Appeal Act 1912, s 5F(3A)
Evidence Act 1995, s 137

CASES CITED:
Festa v R [2001] HCA 72; 208 CLR 593
House v The King [1936] HCA 40; (1936) 55 CLR 499
R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195

TEXTS CITED:

DECISION:
1. Appeal allowed;
2. Set aside the decision of the trial judge excluding the evidence of the edited video tapes and the evidence of Mr Rorke.

JUDGMENT:

- 15 -

IN THE COURT OF  
CRIMINAL APPEAL

CCA 2007/13557

BEAZLEY JA
JOHNSON J
McCALLUM J

20 June 2008

Regina v Elizabeth Karen ARVIDSON

Headnote

The respondent was charged on indictment with larceny as a clerk and destruction of paper with the intent to defraud under ss 156 and 158 respectively of the Crimes Act 1900, in relation to the theft of $80,000 the property of her employer, Brinks Australia. The respondent pleaded not guilty to both charges.

Before the commencement of the Crown case, the respondent made a successful application to the trial judge, Hughes DCJ, under s137 of the Evidence Act 1995 for the exclusion of an edited CCTV surveillance video of the despatch area of Brinks Australia from which the monies were taken and the evidence of a Mr Rorke, who had compiled the edited version of the videotapes. Mr Rorke gave evidence that in editing the CCTV footage, he had focussed on the movements of the respondent, acting on the assumption that she was the primary suspect.

Hughes DCJ found that a jury, on viewing the edited disk, would be likely to give the evidence more weight than it deserved, or the jury would be diverted from its task. His Honour therefore determined that the prejudice of the tape outweighed any probative value, which could not be cured by giving appropriate directions.

The Crown appealed pursuant to s5F(3A) of the Criminal Appeal Act 1912, submitting that his Honour erred in refusing to admit the evidence and that without the edited video surveillance the Crown’s case was eliminated or substantially weakened. The Respondent raised an additional jurisdictional issue, having regard to the provisions of s 5F(3A).

Held per Beazley JA (Johnson and McCallum JJ agreeing ):

On the issue of the jurisdiction of the Court of Appeal under s5F(3A) of the Criminal Appeal Act 1912

1. The question whether excluded evidence substantially weakens the prosecution case raises a jurisdictional issue: [24].

   R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 (referred to)

2. It is for Court to assess the Crown’s case to determine whether or not the excluded evidence does substantially weaken that case, a matter upon which the Crown bears the onus: [24].

   R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 (referred to)

3. The jurisdictional question is to be determined on the whole of the material in the Crown case. The jurisdictional challenge arose because the trial judge proceeded to determine the application under s 137 on a summary of the Crown case: [23]-[25].

1. There was no objection to the whole of the Crown case being placed before this Court. On the whole of the material in the Crown case, the respondent conceded that the exclusion of the evidence would weaken the Crown case: [26].

1. Discussion as to how to proceed with the s 5F(3A) appeal in circumstances where there was material before the Court additional to the material before the trial judge: [27]-[31].

On the question of whether the evidence should be excluded under s137 of the Evidence Act 1995

1. For an appeal to succeed under s 5F(3A), the Crown must establish error of the type identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505: [27], [41].

   House v The King [1936] HCA 40; (1936) 55 CLR 499 (applied); R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 (referred to); Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195 (referred to).

2. The question to be asked is whether the prejudicial effect outweighs the probative value of the evidence, that is, would the jury give the evidence more weight than it deserves, or would the evidence divert the jurors from their task. This question involves an evaluative exercise, in respect of which judicial minds may differ: [27], [34], [45].

   Festa v R [2001] HCA 72; 208 CLR 593 (applied)

3. The video evidence formed only part of the Crown case. On the whole of the evidence in the Crown case, a jury would not be diverted from its task or place more weight on the video evidence than it deserved. A jury would understand it to be part of a circumstantial case advanced by the Crown. The trial judge’s determination to exclude the evidence was therefore unreasonable: [50], [57].

   House v The King [1936] HCA 40; (1936) 55 CLR 499 (applied)

IN THE COURT OF  
CRIMINAL APPEAL

CCA 2007/13557

BEAZLEY JA
JOHNSON J
McCALLUM J

20 June 2008

Regina v Elizabeth Karen ARVIDSON

Judgment

1. BEAZLEY JA:  The respondent has been charged on indictment with two charges as follows:

   1.On 4 August 2005 at Seven Hills in the State of New South Wales, [the respondent] being then a clerk of Brinks Australia did steal certain property, namely $80,000 the property of Brinks Australia her employer: s 156, Crimes Act 1900.

   2.On 4 August 2005 at Seven Hills in the State of New South Wales [the respondent] being a clerk to Brinks Australia, with intent to defraud, did destroy a paper belonging to Brinks Australia, her employer: s 158, Crimes Act 1900.

2. The respondent has pleaded not guilty to both charges.

3. The respondent's trial came on for hearing before his Honour Hughes DCJ on 29 April 2008 and a jury was empanelled. Before the commencement of the Crown case, the respondent made an application under the provisions of s 137 of the Evidence Act 1995 for the exclusion of certain evidence, namely, an edited CCTV surveillance video and the evidence of a Mr Rorke, who compiled the edited versions of the videotapes. That application was successful and the trial judge refused to permit into evidence the edited videotapes and Mr Rorke’s evidence.

4. The Crown appeals to this Court from his Honour’s ruling pursuant to the provisions of s 5F(3A) of the Criminal Appeal Act 1912.

5. Following the lodgement of the appeal, the jury was discharged by his Honour.  A new trial date has not yet been set.

6. The Crown case is that on 4 August 2005, the respondent removed two E-cash satchels from a security trolley No 730, which was located in the despatch room in the premises of her employer, Brinks Australia (Brinks).  The E-cash satchels had been placed in the trolley at about 11 pm the evening before, that is, 3 August 2005.  It is the Crown case that, in accordance with Brinks’ usual procedures, trolley No 730 was secured by the employees who placed the E-cash satchels in the trolley.  The Crown alleges that the respondent removed the satchels, placed them into a cardboard box and took the cardboard box to an office she shared with another employee, Chris Agius.  Mr Agius was not then on duty.  The Crown contends that later, in the morning, the respondent took the E-cash satchels out of the building, either in the cardboard box, or in another bag.  The satchels contained approximately $80,000.  The moneys have not been recovered. 

7. The respondent’s normal duties that day involved her having access to trolley No 730.  She accessed the trolley between 4.50 am and 5.07 am on 4 August 2005, for the purposes of removing a number of ATM bags from it.  It is alleged that in the course of doing this, the respondent unlawfully removed the E-cash satchels.  The manifest (known within Brinks as the ‘re-schedule document’) that recorded the contents of the trolley (including the individual seal numbers of each package and the movement of the contents into and out of the trolley) was shredded by the respondent sometime later in the morning.  The respondent admitted shredding the re-schedule document.  The shredded document was subsequently located and pieced back together. 

8. The despatch room where trolley No 730 was located was subject to CCTV surveillance.  The cameras recorded to a number of digital and analogue recorders located in the manager’s office.  The digital recorders recorded onto a hard drive.  The analogue recorders recorded onto VHS tapes that were changed daily.  At about 11.08 am on 4 August 2005, the respondent entered the manager’s office and removed the tapes from the machine.  The tapes have not been seen since and it is the Crown case that the respondent is responsible for those tapes having gone missing.  It was within the normal duties of a member of staff such as the respondent to change over the VHS tapes, but not to remove them from the manager’s office.  The respondent explained to the police in her record of interview that she removed the tapes from the VHS recorder some time after the alarm had been raised that the E-cash satchels were missing, so that she and other staff could view the tapes.  She said she left the tapes in Mr Agius’ office.  That office was not covered by Brinks’ CCTV surveillance system.  As a result of the VHS tapes having gone missing, the only CCTV surveillance footage that was available for viewing during the course of the investigation of the theft was the digital recording. 

9. The digital recording showed the respondent entering the despatch room with another employee at about 4.49 am.  The recording shows the respondent carrying a cardboard box, apparently containing some uniforms.  She is seen placing the cardboard box onto the ground outside an office that is adjacent to the despatch room (and which has large glass windows) and then moving a number of trolleys, including trolley No 730 from which the E-cash satchels were taken.  The respondent is seen removing the seal from trolley No 730 and unpacking its contents.  Approximately half-way through this process, she is seen picking up the cardboard box and carrying it into Mr Agius’ office.  She is then seen re-entering the despatch area carrying the box, which she again places outside the office where she had placed it when she first entered the despatch area.  Another employee is seen picking up the box and carrying it out into another area, known as the “wicket” area.  The respondent and that employee are then observed going to the loading bay. 

10. About two hours later, the respondent and a different employee are shown on the digital recording leaving the building and entering the turret area leading to the outside car park.  That employee is seen carrying a cardboard box and the respondent is seen carrying a plastic bag.  They are also recorded returning to the building not carrying anything.  Approximately an hour later, a person, who may be the respondent, is observed going to the car park and returning to the building with something in her hands.  At about 11.08 am, the respondent is seen entering the manager’s office.  At about 1.15 pm, the respondent is seen walking down the corridor with a folder under her arm and into the carpark area. 

11. Notwithstanding the extensive CCTV surveillance, the digital coverage of the despatch room was not complete and the cardboard box that the respondent had been carrying when she first entered the room, was out of the line of the video surveillance when placed on the ground.  The respondent is recorded on the CCTV footage as moving away from the trolley.  The Crown contends that the cardboard box was in the area towards which the respondent is seen moving after she had accessed the trolley.  The inference for which the Crown will contend at trial is that the respondent had taken the E-cash satchels from the trolley at this time and placed them into the cardboard box.

12. The original complete digital recording was made available to Mr Rorke, Brinks’ National Security Manager.  There was about 74 hours of footage in all.  Mr Rorke viewed most of that footage and prepared an edited version of it on two discs, comprising a compilation of about one hour.  The original digital recording was subsequently lost when Brinks moved premises and has not been found.  Accordingly, the only CCTV surveillance material is that contained in the edited videos.

13. Mr Rorke gave evidence that in editing the CCTV footage, he had focussed on the movements of the respondent, acting on the assumption that Brinks believed she had removed the E-cash satchels without authority.

    Respondent’s submissions to trial judge

14. Counsel for the respondent conceded before the trial judge that the one hour edited video has probative value.  However, it was submitted that most of what was contained on the edited discs was also the subject of evidence given by other witnesses, so that the probative value of the surveillance material in the edited discs had to be assessed with that in mind.  When regard was had to that material, it was apparent that the evidence was not essential to the Crown case and whilst of probative value, that probative value was low.

15. The respondent then submitted that it would be prejudicial to the respondent to admit the evidence, because the edited discs provided an incomplete picture of the events of the day and had been edited in such a way that the focus was on the respondent’s activities only.

16. It was submitted that the jury was likely, therefore, to speculate as to what was on the footage that was lost and, in particular, was likely to speculate that the lost material contained damaging footage of the respondent’s movements.  This submission, as I understand it, was a particular of the more general submission that the jury was likely to overvalue the probative weight of the footage contained on the edited discs. 

17. The trial judge referred to Festa v R [2001] HCA 72; 208 CLR 593 as the proper test to apply in determining whether to exclude evidence and noted:

    1.            That the respondent was the main focus on the edited discs;

    2.The footage was edited in circumstances where the respondent’s guilt had been assumed.  His Honour later modified this to an assumption of the possible guilt of the respondent;

    3.The respondent had not had an opportunity to ascertain if the compilation was fair, it being accepted the original video tapes have been lost;  and

    4.A jury, on viewing the edited disc, would be likely to give the evidence more weight than it deserved, or the jury may be diverted from its task.

18. His Honour thus found that:

    “… this is a clear case where the prejudice, that is to say, the compilation by an outside person of a person he suspects of committing the offence a person acting as, if I might say so, as a judge and jury as to the guilt or innocence of the accused in my opinion that prejudice is so strong that it outweighs any probative value that is gained by the Crown.”

19. His Honour accepted that the edited disc was strong evidence in the Crown case.  However, because it focussed on the activities of the respondent, the evidence was distorted.  His Honour continued:

    “They are in fact an electronic eye witness of the events.  If in some way or another the electronic eye witness is distorted to an extent that only gives an account of the accused’s behaviour or one person’s behaviour, then it would be like calling a prejudiced eye witness to give an account of evidence.” 

20. His Honour found that distortion could not be cured by giving appropriate directions and, therefore, excluded both the edited disc and the evidence of Mr Rorke.

    Issues on the appeal

21. Two issues arose on the appeal.  The first issue is the issue raised by the Crown on the appeal itself, namely, whether his Honour erred in refusing to admit the evidence.  It was argued that without the evidence of the surveillance as contained on the two edited discs, the Crown’s case was ‘eliminated’ or at least ‘substantially weakened’. 

22. The second issue is a jurisdictional issue raised by the respondent, namely, that having regard to the provisions of s 5F(3A) of the Criminal Appeal Act 1912, this Court has no jurisdiction to deal with the appeal. It is convenient to deal with the jurisdictional issue first.

    Jurisdictional issue

23. The Crown has appealed against a ruling on evidence pursuant to s 5F(3A) of the Criminal Appeal Act.  That section provides:

    “(3A)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.”

24. In R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Spigelman CJ stated, at [27], that a contention that the excluded evidence did not substantially weaken the prosecution’s case constituted a challenge to the jurisdiction of the Court. Spigelman CJ held that it is for the Court to assess the Crown’s case to determine whether or not the excluded evidence does substantially weaken that case, a matter upon which the Crown bears the onus: Shamouil per Spigelman CJ at [28]-[30].

25. The respondent’s point on this matter may be stated simply.  She contends that in order for the Court to determine whether the excluded evidence substantially weakens the prosecution’s case, the Court must examine the evidence upon which the prosecution intends to base its case.  However, in this case, the determination of the trial judge had been made on a limited selection of material that comprised:  a three page summary of the Crown allegations;  a summary of the CCTV footage;  two compact discs, being the edited footage prepared by Mr Rorke;  and a document entitled “Re-scheduled and scheduled items”.  In addition, Mr Rorke gave oral evidence before the trial judge.  As this was the only material before this Court, the Court could not undertake an assessment of the evidence in the Crown case in order to determine the jurisdictional question. 

26. The respondent accepted, however, that if the Crown brief was tendered to this Court, a course which she did not oppose, the jurisdictional question would be overcome, as she accepted that the exclusion of the edited tapes and the evidence of Mr Rorke did substantially weaken the prosecution case.  Subsequently, pursuant to a direction by this Court, the prosecution brief was placed before this Court.  For that reason, the jurisdictional issue should be dismissed.

    How should this Court proceed?

27. The dismissal of the jurisdictional issue raises another matter for consideration, namely, how this Court should approach the appeal. Although a determination under s 137 does not involve the exercise of a discretion strictly so-called, it requires an evaluation of evidence that calls into play similar juridical processes. Accordingly, for an appeal to succeed under s 5F(3A), the Crown needs to establish error of the type identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505: see R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at [19]; Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195 at 210. An appeal of that nature is determined on the basis of the material before the trial judge. The difficulty in this case is that this Court now has before it material that was not before Hughes DCJ.

1. The respondent submitted that in the circumstances it would be necessary for this Court to determine the matter afresh, presumably without reference to the trial judge’s determination, having regard to the whole of the material available to the Court.  There is a difficulty with this submission.  In the first place, for the appeal to succeed, the appellant must establish error by the trial judge.  Further, this Court is a court of appeal, not a court of first instance, which is the role now urged upon it by the respondent.  That requires a consideration of his Honour’s reasons, which were based on the material before him. 

2. The resolution of this conundrum is, in my opinion, to be found in its origin.  The respondent was the applicant before the trial judge.  Her legal representatives agreed to the material to be placed before the trial judge for the purpose of her application.  They must have been satisfied that that material was adequate for the purposes of the application she was making and that it fairly represented the material contained in the Crown case. 

3. The only omission that seemed to have any real significance in the way the respondent put the matter to this Court was by the Electronic Recording of Interview with the Suspect, dated 30 August 2005 (the ERISP).  Although there is no explanation as to why the ERISP was not placed before the trial judge, there is reference, in the ‘Summary of Crown Allegations’ to some of the explanations she gave of her activities during her shift on 4 August 2005, upon which the Crown places particular reliance, including her admission that she shredded the re-schedule document, although it does not include her explanation as to why she did so.  There is also reference in the ‘Summary of Crown Allegations’ of the explanation the respondent gave in the ERISP as to why she took the VHS tapes from the office.

4. However, whatever the respondent’s reasons for not placing the ERISP before the trial judge, it was her application and it was her responsibility to adduce material so as to provide a proper basis for the determination of the application.  As I have said, she must have been satisfied that the synopsis of the Crown case as contained in the ‘Summary of Crown Allegations’ was a fair representation of the Crown case and I consider that this Court should infer that to be the case.  As a first stage in the determination of the appeal, therefore, I am of the opinion that the Court should consider whether the Crown has established, on the material before the trial judge, that his Honour erred in his determination of the application.

   Should the evidence have been excluded?

5. Section 137 of the Evidence Act provides:

   “Exclusion of prejudicial evidence in criminal proceedings

   In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

6. The ‘House v The King error’ relied upon by the Crown was that his Honour confused the question of admissibility with the question of the strength or otherwise of the evidence to be put before the jury.  The Crown submitted that the matters raised by the respondent in her submissions to the trial judge were essentially jury points.  It was submitted that the ruling had to be viewed against the role of the Crown at the trial, namely, that it was for the Crown to adduce evidence that established beyond reasonable doubt that the respondent was guilty of the offences with which she was charged.

7. As indicated, the trial judge referred to Festa. In that case, McHugh J commented upon the circumstances in which evidence could be excluded under s 137. The appellant in Festa had contended that the trial judge erred in not excluding identification evidence, which she claimed was of low probative value, but which was of a highly prejudicial character. McHugh J observed, at [51], that the weakness of relevant evidence was not a ground for exclusion. McHugh J then commented upon the balance of probative value as compared to the prejudicial effect of the material. He stated:

   “It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”

8. Having appropriately referred to this test, Hughes DCJ described the CCTV surveillance footage as “an electronic eye witness of the events” and said that:

   “If in some way or another the electronic eye witness is distorted to an extent that only gives an account of the accused’s behaviour or one person’s behaviour, then it would be like calling a prejudiced eye witness to give an account of evidence.” 

   His Honour considered, therefore, that:

   “… this is a clear case where the prejudice, that is to say, the compilation by an outside person of a person he suspects of committing the offence a person acting as, if I might say so, as a judge and jury as to the guilt or innocence of the accused in my opinion that prejudice is so strong that it outweighs any probative value that is gained by the Crown.”

9. In reaching this conclusion, Hughes DCJ accepted that the tapes were “strong evidence” in the Crown case, by which I assume his Honour meant, were of high probative value.

10. The Crown contends that his Honour’s conclusion that the jury would give more weight to the edited video evidence than it deserved because it focussed upon the activities of the accused, so that its effect was distorted, was erroneous.  The Crown submits that the criticism by his Honour that the editing of the tapes was done in such a way as to only focus on the respondent, was not a cogent one.  The prosecution of the respondent was based on a strong circumstantial case against her, including that the footage recorded her opening the sealed trolley, retrieving a document from it, reading the contents of the document which, it was known, included reference to the E-cash satchels;  having a cardboard box in the near vicinity but out of CCTV surveillance;  of moving things away from the trolley;  and of asking another employee to take the carton to a room in which there was no surveillance. 

11. The Crown submits that this was enough to direct suspicion towards the respondent as being the person responsible for, or involved in, the theft.  The Crown also pointed out that there were other factors that directed suspicion towards the respondent, including the fact that she had removed the VHS tapes, which are now missing, into Mr Agius’ office, which she shared.  It was submitted that, in the circumstances, it was reasonable for the tapes to be edited, so as to focus upon the activities of the respondent.  The Crown also indicated that a jury would not be asked to watch some 74 hours of video material, much of which contained no activity around or near trolley No 730.

12. The Crown also relies upon Mr Rorke’s evidence (which was also excluded by the trial judge) that he had edited the tapes so as to compile footage of the frames he considered to be relevant, although he readily acknowledged that he was working on the theory that the E-cash satchels had been taken out of the despatch room at about 5.08 am and that he also understood that the respondent was the prime suspect.  He said, however, that he tried to look at events surrounding the times that had been indicated to him as being relevant. 

13. The essential prejudice upon which the respondent relied at trial and which she reiterated on appeal, is, as his Honour found, that the tapes were edited upon the premise that she had stolen the two E-cash satchels.  She submitted that the effect of this selective editing meant that the jury would be deprived of the opportunity of making a proper assessment of whether any other employee had the opportunity of stealing the E-cash satchels, either before the respondent arrived for work, or after she left the despatch room at 5.07 am.  The respondent also submitted that she can never investigate what happened in the despatch room between about 11.40 pm, when the E-cash satchels were placed in trolley No 730 and 0.39 am, when the trolley was again opened, and then between 0.39 am and when she arrived at about 4.49 am.  In particular, without being able to view the entirety of the video footage, she cannot determine whether somebody else accessed the trolley during either of these two periods. 

14. The respondent further submitted that there was no error in his Honour’s determination to exclude the evidence.  His Honour had acted upon correct principle;  had taken into account all relevant considerations and had not taken into account irrelevant considerations.  Accordingly, it was submitted, no basis had been established for appellate intervention.  Although this submission correctly states the principle in House v The King, it does not cover its full application.  In House v The King, having identified the matters that constitute error, Dixon, Evatt and McTiernan JJ stated, at 505:

    “It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”  (Emphasis added)

15. It will be recalled that the ‘House v The King error’ upon which the Crown relied is that his Honour confused the question of admissibility with the question of the strength or otherwise of the evidence which was to be put before the jury. As I understand that submission, it is properly best expressed as stating that his Honour asked himself the wrong question, or alternatively, in approaching his determination of the question under s 137, he applied a wrong test, notwithstanding that he had identified the correct principle to apply.

16. Having viewed the video and considered the other material that was placed before his Honour for the purposes of the application on s 137, and having read his Honour’s reasons, I am not satisfied that he made an error of the type identified by the Crown. As the respondent submitted, his Honour correctly stated the test that he was required to apply in determining whether to exclude the evidence and considered all the material facts that were before him. He took into account the matters that were relevant and did not take into account any extraneous factors. In those circumstances, the Crown will only be able to succeed on the appeal if his Honour’s determination was unreasonable in the House v The King sense.  In order to determine to whether his Honour’s determination was unreasonable, it is necessary to refer again to the material before his Honour and the manner in which he dealt with that material.

17. The trial judge stated that the video only gave an account of “the [respondent’s] behaviour or one person’s behaviour”.  That is not an accurate description of the edited videos themselves.  The focus in each section of footage is not on the respondent as such.  The focus is first upon the loading of trolley No 730 in the despatch room and it being accessed again at 0.39 am.  The focus is thereafter on the despatch room, the corridors and loading bay between 4.49 am and 5.07 am and, later, the Manager’s office, other areas leading out to the car park and the car park itself.  In this part of the evidence, the respondent is seen in each of the video clips, as are others within the areas subject to video surveillance.  Indeed, in the critical time upon which the Crown relies, namely 4.49 am-5.07 am, the video footage shows a deal of activity by a number of people in and near the despatch room.

18. The prejudice, and the problem that his Honour identified, was that there is no video material between 11.10 pm, when the E-cash satchels were put in the trolley, and 0.39 am, when the trolley was again accessed, and then between 0.39 am and 4.49 am, when the respondent entered the despatch room and from 5.07 am, when the respondent left the despatch room, and 6.55 am, when the respondent reported the E-cash satchels as missing.  To that extent, the available video material focuses first on the E-cash satchels being placed in the trolleys, and then on the footage that records the respondent’s activities, including the time and manner in which she accessed the trolley. 

19. The question to be asked, therefore, is whether his Honour erred in finding that the prejudicial effect of the videos outweighed the probative value.  Would, as the trial judge asked himself, “the jury [be] likely [to] give [the edited video] more weight than it deserves”, or would the edited video “divert the jurors from their task”?:  see Festa at [51] per McHugh J. That question involves an evaluative exercise, in respect of which judicial minds may differ. In this case, it is only if the question does not reasonably permit an affirmative answer that this Court can interfere: House v The King at 505.

20. In this case, although Mr Rorke edited the videos on the basis that the respondent had taken the E-cash satchels, the matter could not be placed before the jury in that manner.  Rather, the videos would have to be placed before the jury on the basis that the respondent was the prime suspect, having regard to the other evidence that pointed in that direction.  The jury would have to be told, as would be apparent anyway, that the video evidence was not a complete record.  They would also have to be told of the need to be satisfied, on the whole of the evidence, both that the satchels containing the moneys had been placed in the trolley and that no person other than the respondent had the opportunity of accessing the trolley, in order to be satisfied of her guilt. 

21. The edited videos provide evidence that the respondent accessed a trolley in the despatch room, as well as providing evidence as to her carrying a cardboard box and entering the manager’s office, as has been more fully explained above.  The videos also show other people in the despatch room at the same time. 

22. However, that is only part of the evidence in respect of the Crown case and, in particular, is only part of the evidence relied upon to prove that the respondent stole the E-cash satchels from the second compartment of trolley No 730.  The video evidence does not, for example, provide evidence that the missing E-cash satchels were placed in the second compartment, although it does provide evidence that packets were placed in the second compartment.  The Crown will need to establish that E-cash satchels with particular serial numbers were placed in the second compartment of trolley No 730 and that E-cash satchels with those same serial numbers went missing.  In addition, the necessity to edit such evidence existed whether or not the unedited videos went missing. 

23. To the extent that evidence has been truly lost, it is the lack of video evidence between the time trolley No 730 was loaded at 11.10 pm and then accessed at 0.39 am, and then between 0.39 am and 4.50 am, when the respondent commenced her shift.  Even if video footage of those periods was available, a jury would have to be satisfied that such footage provided complete coverage of those periods.  It may not have done, having regard, both to the lost VHS tapes and the often unsatisfactory nature of CCTV surveillance.  There are other aspects of the Crown case that are not dependent on the video evidence, including the shredding of the re-schedule documents, and aspects that are only partly dependent on the video evidence, such as the Crown case that the respondent used the cardboard box to secrete the E-cash satchels out of the despatch room and possibly, subsequently, out of the building.

24. The point of examining these aspects of the Crown case is not to analyse each element of the Crown case to ascertain how it might be proved.  Rather, I am seeking to analyse by way of limited examples what the Crown would need to prove and how that might be proved, to ascertain whether the jury would give the edited videos more weight than they deserve, or whether their contents, having regard to the editing, would divert the jury from their task.  In my opinion, when the content of the edited videos is placed in context and when it is understood that it forms part only of what the Crown needs to prove, I am of the view that it could not reasonably be concluded that the jury would give the edited videos more weight than they deserve, or divert it from its task.  Rather, they would understand that the video evidence was part of a circumstantial case advanced by the Crown.  Admittedly, it is likely that a jury would pay close attention to the videos.  However, that is different from saying that the videos, edited as they are, would divert attention from the jury’s task, which is to determine, on the whole of the evidence, whether the Crown has established the guilt of the respondent.  For that reason, I consider that that the trial judge’s determination to the contrary was unreasonable in the House v The King sense.

25. This conclusion, that the prejudicial value of the evidence does not outweigh the probative value of the evidence, is reinforced when the entirety of the Crown brief, and in particular the respondent’s ERISP, is considered.  The respondent gave the police an explanation for a number of the matters that are raised as pointing to her having committed the offence.  First, she explained why she was carrying the cardboard box, which she said contained uniforms.  She said that there were two lots of uniforms, one in the cardboard box and the other in the plastic bag she was seen to carry to the car (A 286 of the ERISP).  The respondent said that one lot of uniforms needed mending and another lot were to be returned to a supplier in the city, because the wrong sizes had been forwarded. 

26. The respondent also admitted to shredding the re-schedule document, but said that she did so in accordance with usual practice (A 305 of the ERISP).  The respondent also admitted that she removed the video tapes from the VHS machine at about 11 am that morning.  She said, however, that she discussed doing so with two of her co-workers and that they had a plan to view the video tapes, but decided against doing so in case they made some mistake which might have, for example, caused the videos to be taped over. 

27. The respondent stated that she was unloading a lot of trolleys that morning and that her co-worker was wheeling them over from the vault.  She said:

    “I was just starting to put them into the runs, like I do every morning.  Just frantically … you just start to distribute the stuff ...”  (A 88 of the ERISP)

    The respondent also explained that she was not particularly conscious of what trolleys she was unloading.  She said:

    “I don’t recall which trolley I opened at which time, I just remember just doing what I do every morning, I didn’t really pay attention to that.  It was only when I distributed everything I realised things were missing.  That’s when I … stopped.”  (A 89 of the ERISP)

    These explanations of how the work was carried out, which will presumably be part of the Crown case, will need to be assessed in conjunction with the edited video evidence.  They provide an explanation of the respondent’s activities as recorded on the edited tapes.

28. The Crown also intends to call a number of witnesses to give evidence relating to the period between 11 pm on 3 August and 4.50 am on 4 August.  For example, Paul Wharton, in his police statement, says that he accessed trolley No 730 during the evening and that he remained in the supervisor’s office inside the despatch area for the remainder of his shift.  Mr Wharton stated that he saw the respondent enter the despatch area, move the trolley away from its location underneath the cameras and break the seal to it.  Whilst he does not specifically state that no-one else was in the vicinity of the trolley in the meantime, he is available to give evidence of the comings and goings of persons in the despatch room during the period from 11 pm until 5.08 am.  Likewise, Mr Agius, the operations manager, was on duty and assisted Mr Wharton in the tasks which included loading trolley No 730.  John Pedley was the night supervisor and commenced his shift at 9 pm on 3 August.  His statement is to the effect that trolley No 730 was in the same position from the time he left it in the despatch area to when he handed over to the respondent the following morning.  He also confirms that he asked the respondent to change the security tapes at the commencement of her shift, as he had not attended to that task.

1. There are other persons available to give evidence as to the comings and goings within the despatch room in the hours prior to the respondent commencing her shift.  There are witnesses available to give evidence as to their presence and activities in the despatch room from 4.50 am, as well as relating to the cardboard box and the VHS videos.  The edited discs are available to show movements of the respondent during these times. 

2. This material, extracted from the prosecution brief, confirms what I have already said, namely, that the Crown case is dependent upon a body of evidence of which the CCTV video surveillance only forms part.  When the Crown case is considered as a whole, I am of the opinion that it could not have been reasonably concluded that the prejudicial value of the edited tapes outweighs their probative value, which was accepted to be strong.  It follows that the appeal should be allowed and the determination of the trial judge to exclude the evidence should be set aside. 

3. I propose, therefore, the following orders:

   1.            Appeal allowed;

   2.Set aside the decision of the trial judge excluding the evidence of the edited video tapes and the evidence of Mr Rorke.

4. JOHNSON J:  I agree with Beazley JA.

5. McCALLUM J:  I agree with Beazley JA.

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LAST UPDATED:
20 June 2008