R v Jimenez - [2000] NSWCCA 390

Reported Decision: 119 A Crim R 299

New South Wales

Court of Criminal Appeal

CITATION: R v Jimenez [2000] NSWCCA 390

FILE NUMBER(S): CCA 60002/00; 60057/00

HEARING DATE(S): 26 July 2000

JUDGMENT DATE:
6 October 2000

PARTIES :

Regina v Glen Jimenez

JUDGMENT OF: Fitzgerald JA at 1; Smart AJ at 12; Ireland AJ at 69

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0323

LOWER COURT JUDICIAL
OFFICER : Ainslie-Wallace DCJ

COUNSEL : RJ Button
PG Berman

SOLICITORS: TA Murphy
SE O'Connor

CATCHWORDS: Criminal law - police not using video recorder present at scene during critical part of search - verdict unsupportable - correct procedures on search - inconsistent police evidence

LEGISLATION CITED: Nil

CASES CITED:
M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439

DECISION: Appeal against conviction allowed; conviction and sentence quashed. Enter a verdict of acquittal on the charge of supplying a prohibited drug (heroin) on 25 November 1998. Crown appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60002/00
CCA 60057/00

FITZGERALD JA
SMART AJ
IRELAND AJ
Friday, 6 October 2000

REGINA v Glen JIMENEZ

JUDGMENT

1 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Smart AJ. 2 At the Court’s request, the Director of Public Prosecutions provided the Court with what was described as the “Education Package for Video/Audio Recordings of Search Warrants and Planned Operations” which was current at the time when heroin was allegedly found on the appellant’s person. The Director also informed the Court that there is an “updated version applicable today”. Hopefully, the present version is more precise and specific than the 1998 version. 3 However, the 1998 “Education Package” plainly recognised the need for police officers to avoid problems such as that which has arisen on this occasion. The first page commenced with the following paragraphs:

“The execution of search warrants has been identified by the commissioner, in his reform of the NSW Police Service Phase One document, as a high risk area for police corruption. He has specifically mentioned the Video Recording of Search Warrants in the Phase One Reform Agenda, in point 115.

As a result, Standing Operating Procedures for the Video/Audio Recording of Search Warrants and Planned Operations have been developed. These SOP’s represent a comprehensive best practice guideline outlining duties and responsibilities for video operators.

…”

4 In the Introduction section of the “Education Package”, attention is drawn to point 115 in the Phase One Reform Agenda, which it is said requires that “..by the 1st January, 1997, practice and procedure guidelines be developed for audio/video recording of the execution of search warrants.” The following paragraph reiterates that Standard Operating Procedures “addressed this reform by providing a comprehensive best practice guideline outlining duties and responsibilities for video operators.” 5 The first page in the section of the Education Package headed “Standing Operating Procedures” contains the following “Statement of Principle”:

“The searching of premises and…

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 Jimenez

Details

AGLC: R v Jimenez [2000] NSWCCA 390
Case: [2000] NSWCCA 390
Decision Date: 6 October 2000

CaseChat Overview and Summary

The case involved a criminal prosecution against Jimenez, heard in the Supreme Court of Victoria. Jimenez was charged with possession of a prohibited substance, and the key evidence relied upon by the prosecution was the discovery of the substance during a search of his person. The search was conducted by police officers at a public location, and a video recorder was present at the scene but not used to record the critical moment of the discovery. The unrecorded nature of this event became central to the case, with Jimenez arguing that the lack of video evidence undermined the credibility of the police testimony.

The legal issues before the court included whether the absence of video evidence rendered the police testimony unreliable and whether the police had adhered to correct procedures during the search. The court had to determine whether the lack of video evidence affected the admissibility and weight of the police testimony and whether the search complied with legal standards. The court also needed to assess whether the police conduct was consistent with established procedures, particularly in light of the video recorder being present but not used.

The court found that the lack of video evidence significantly undermined the reliability of the police testimony. The absence of a video recording during a critical part of the search created a substantial gap in the evidence chain. The court also concluded that the police had not followed correct procedures in conducting the search, as they failed to use the available video recorder. This inconsistency in police evidence and procedural non-compliance led the court to question the overall reliability of the prosecution's case. As a result, the court found that the prosecution had not met the required standard of proof beyond reasonable doubt.

Consequently, the court acquitted Jimenez of the charge of possession of a prohibited substance. The court emphasised the importance of adhering to correct procedures and the role of video evidence in ensuring transparency and accountability in police searches. The court's decision underscored the necessity for police to use available recording equipment to document critical events accurately.

Orders