R v Pham
[2008] VSCA 41
•19 March 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 228 of 2005
| THE QUEEN |
| v |
| CHARLES PHAM |
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JUDGES: | MAXWELL P, BUCHANAN JA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 July 2007 | |
DATE OF JUDGMENT: | 19 March 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 41 | |
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CRIMINAL LAW – Conviction – Theft – Whether guilty verdicts open to the jury – Whether judge erred in directions to jury – Application refused.
CRIMINAL LAW – Procedure – Direct presentment adding new count – Whether evidence of decision to present directly required – Whether Basha inquiry removed unfairness to applicant in bypassing committal – Applicant sought to have witnesses added to presentment – Whether proposed evidence relevant – Applicant unrepresented at trial – Adjournments at trial to alleviate disadvantage to applicant – Whether denial of procedural fairness – Crimes Act1958 s 353.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | (in person) | |
| Respondent | Ms C Quin | Ms A Cannon, Solicitor for Public Prosecutions |
MAXWELL P:
On 21 July 2005, the applicant was convicted on two counts of theft, following a trial before a jury in the County Court. He was fined $500 on each count. He now seeks leave to appeal against those convictions.
The applicant advances four grounds of appeal, expressed as follows: conspiracy to pervert the course of justice; ‘judiciary bias’; racial discrimination; and ‘guilty verdict not open’. Under those headings he raises a large number of sub-grounds. Many of these challenge particular aspects of the conduct of the pre-trial proceedings and of the trial itself. So far as possible I will deal with them in the course of describing what transpired.
Pre-trial proceedings
On 20 December 2004, at the Melbourne Magistrates’ Court, the applicant was committed for trial on two counts of theft and one count of failing to answer bail. He reserved his plea. On 20 May 2005, a presentment was filed at the County Court containing two counts of theft against him, concerning respectively an alleged theft of socks from K-Mart on 17 September 2003 and an alleged theft of compact discs from Coles on 13 March 2004. (These were the charges which became counts 2 and 3 respectively).
On 14 July 2005, a new presentment was filed over in the County Court. This was a direct presentment by the Director of Public Prosecutions, which added the charge encompassed by count 1.[1] This charge had been due to be the subject of a separate committal proceeding later in July 2005. It alleged the theft of a Playstation game from Target on 4 December 2002.
[1]Crimes Act 1958 s 353.
The trial judge informed the applicant that, because there had been no committal in relation to the charge the subject of count 1, he would be entitled to cross-examine the Crown witnesses in the absence of the jury. The judge adjourned the matter until the afternoon, when a Basha inquiry was conducted in relation to count 1.[2] The statements of the witnesses were tendered and they were cross-examined by the applicant.
[2]See R v Basha (1989) 39 A Crim R 337.
The applicant has raised a variety of issues about the procedure by direct presentment. He complains, under the ‘bias’ heading, that he saw no evidence of the Director’s decision to present directly. When the applicant raised this before trial, the judge quite properly pointed out that the Director had the statutory power to present directly and that the presentment evidenced the decision. In his grounds of appeal, the applicant contends that:
·‘there is no evidence of the OPP seeking leave to discontinue the proceeding [count 1] that was continuing to Committals stage’;
·‘the presiding judge and the OPP failed to show the accused sections of the Crimes Act where the Director of OPP had the power to circumvent court procedures.’
These complaints are without substance. This was an orthodox procedure. The conduct of the Basha inquiry removed any risk of unfairness to the applicant by reason of there having been no committal.
The trial judge then ordered that count 2 be severed from the presentment. The applicant applied for severance of the remaining two counts but this application was refused.
The following day, the prosecutor announced that a nolle prosequi had been entered in relation to count 2 (the count which had been severed). This obviated the need for the filing over of a new presentment. The judge explained to the applicant what had occurred. The applicant then sought an adjournment, which was granted. The judge then explained to the applicant the procedures for arraignment, jury trial and jury empanelment.
The applicant then referred to video evidence which he proposed to present to the jury. The judge ruled that this evidence would not be admitted. His Honour’s ruling was in these terms:
Mr Pham submits that he ought to be allowed to play some video evidence of an incident regarding what is now famously known to be the Rodney King incident in the United States, which apparently shows the said Mr King being beaten by members of an American police force. The assertion made in Mr Pham’s submissions is that that video is relevant because there is a need for the police to be “open and accountable”. By no stretch of any forensic imagination can I see the possible relevance of such a video in a trial on two counts of theft and there will be no permission whatsoever given to any attempt to show such a video.
One element of the applicant’s ‘bias’ ground is the following: ‘Presiding judge refused the racial discrimination argument by denying the accused the chance to present the jury with the “Rodney King” tapes.’ The applicant maintains that his arrest, charging and prosecution were racially motivated. Indeed, he expressed that view at the time. One of the arresting constables recalled in evidence that, at the time of the arrest, the applicant had called him a ‘racist prick’. In my view, there is nothing in the evidence which in any way substantiates the assertion of racism. Moreover, the judge was plainly right to reject the applicant’s request to present the ‘Rodney King’ video. It had no possible relevance to the charges of theft which he was facing.
The applicant also complains about the use of excessive force by those who arrested him on the successive occasions. He made allegations to that effect in each of the records of interview. The applicant was at one stage charged with resisting arrest, but that matter was not pursued. The only issues before the court at the trial, however, related to the theft charges and whether the prosecution had established beyond reasonable doubt that the applicant had stolen the relevant items. Complaints of police misconduct could only have been relevant in the trial as a foundation for attacking evidence relevant to the charges. Only one police officer was called as an eyewitness (on count 1), and the substance of his evidence was not challenged.
In the course of the pre-trial ruling, the judge noted that:
·the applicant was representing himself and did not intend to engage legal representation, although it appeared that he was ‘obtaining legal advice in the meantime from elsewhere’;
·although the theft charges were at the ‘lower end […] of crimes under that rubric’, the applicant had exercised his right to have trial by jury;
·the prosecutor had ‘quite properly’ sought to remove from the record of interview relevant to count 1 certain passages relating to other charges which had been brought against the applicant, relating to resist arrest and refusing to give a name and address when requested. Although the applicant opposed the deletion of those passages, the judge acceded to the prosecutor’s proposal.
His Honour also dealt with submissions made by the applicant that certain witnesses should be made available for cross-examination by him. The first was a Senior Constable McEvoy. Senior Constable McEvoy was a corroborating witness to the record of interview between Constable Riddle and the applicant on 4 December 2002 (count 1). His Honour noted that Senior Constable McEvoy played almost no part in the conduct of the record of interview and ruled that there was no basis on which the prosecution could be required to add his name to the presentment. His Honour stated that it was a matter for the applicant if he wished to subpoena Senior Constable McEvoy but said that he would not hold up the progress of the trial on that account.
The second witness sought by the applicant was a Richard Freeborn, who as at 4 December 2002 was working as a loss prevention officer at the Target store from which the Playstation game was alleged to have been stolen (count 1). The applicant having raised this matter on an earlier occasion, the judge had suggested to the prosecutor that it would be sensible to obtain a statement from Mr Freeborn, in order to judge ‘if indeed it could be seen to be by any stretch of imagination of assistance to the accused.’ A statement was duly obtained from Mr Freeborn and a copy provided to the judge and to the applicant.
Having reviewed the statement, his Honour ruled in these terms:
It is clear I think from the statement itself … that Mr Freeborn could give no evidence as to the issues relating to establishment of the alleged theft of items from that store. Maybe he could give some evidence with regard to other latent allegations with regard to resist arrest, but I see no basis upon which I could oblige the prosecutor to add Mr Freeborn’s name to the presentment and I decline to do so.
As I indicate, who Mr Pham subpoenas is a matter for him. But I have to make it clear that at the moment I see no basis for the admission of Mr Freeborn’s evidence as being relevant or material to the issues of theft.
With respect, these rulings were plainly correct. As I have said, the relevant evidence was the evidence of the eyewitnesses to the alleged thefts.
One of the elements of the applicant’s ‘pervert the course of justice’ ground is in these terms: ‘Office of Public Prosecutions was lying and misleading the court regarding the death of Constable Elliott and the whereabouts of Constable McEvoy.’ The applicant had also requested that a Constable Elliott be present. Constable Elliott was not a witness to the theft the subject of count 3. He was merely present at Richmond Police Station when the applicant arrived escorted by the loss prevention officer.[3] The prosecutor informed the court that Constable Elliott had died. There is nothing to suggest that this information was untrue, let alone knowingly untrue.
[3]See [40], [43]–[44] below.
As to Senior Constable McEvoy, the court was told that he was in Queensland. The applicant maintains that this was not so and that Constable McEvoy could be seen at the back of the court. That was not a matter which it was appropriate or necessary to investigate. His Honour’s ruling as to the irrelevance of anything which Mr McEvoy might have said was clearly correct.
The course of evidence: count 1
The first witness on count 1 was Judy Anne Grahame, a sales assistant at the Target store at Highpoint, Maribyrnong. On 4 December 2002, she observed Constable Riddle speaking to the applicant in the cards and gift area of the store. She saw some CDs drop to the floor from Mr Pham when he was approached by Constable Riddle. One of the CDs she saw was in a ‘safer’, a thick plastic see-through container with security tags affixed to it. In the usual course of a transaction, the safer is opened at the point of sale, to enable the item being purchased to be scanned.
Ms Grahame saw the applicant walk towards Constable Riddle with his arms held out in front of him in an aggressive manner. Mr Riddle then arrested the applicant, after which she saw the applicant yelling abuse at Riddle, calling him a ‘racist pig’ and saying that he was being arrested because he was Asian.
The applicant put to Ms Grahame in cross-examination that, in the course of the Basha inquiry, she had given evidence of having seen him put something in his pockets. She denied that. The applicant then asked for the opportunity to review the transcript of evidence from the Basha inquiry. The judge clarified the matter with the applicant in the absence of the jury and of the witness. The applicant was given an opportunity to review the transcript and he then acknowledged that he was mistaken. When the witness was recalled, the applicant apologised to her for his mistake. The witness again confirmed that she had not seen any CDs in the applicant’s pocket. I refer to this incident to illustrate that – contrary to the applicant’s submission – the judge fully appreciated the difficulty which the applicant faced as a self-represented defendant and took pains to ensure that he was treated fairly.
The second witness was Ms Geraldine Fraser, a loss prevention officer at Target. She too was working at the Highpoint store in Maribyrnong on 4 December 2002. She gave evidence that, at about 2:30 pm, she had served a male in the stationery department of the store. He had a magazine in his hand which was folded in half. Behind it she could see that he had two Playstation games in his hands. Each game was in a safer at the time. He was about 10 metres away from her when she saw this. Ms Fraser said that it would take a lot of force to open a safer:
It’s hard plastic, and then on the bottom we have a security tag, so that if you leave the store with this the alarm goes off. We open it up with a special machine and we put the game in it and slap it shut. It’s supposed to be an anti-theft device because it’s very hard, there’s not really anywhere to grab onto to open it.
Ms Fraser noticed that the applicant had a stapler in his other hand, which he was using to try and force open the safer. She could hear it clicking a few times. When that was unsuccessful, he left the stapler in the stationery department and walked over into the kitchenware, where he selected a kitchen gadget from the display unit. He then made his way to the cards and wrapping paper section. He proceeded to force the safer open with the kitchen implement. Ms Fraser could hear it making ‘a loud cracking noise’.
At the time, there were already two shoplifters in the security office and Richard Freeborn (the loss prevention officer referred to earlier) was in the office with them. Ms Fraser telephoned Mr Freeborn and asked him to see to it that, when the police came to the store to deal with the first two shoplifters, one of the officers was asked to come and assist her. A short time later, Mr Freeborn contacted Ms Fraser to say that the police had arrived. The applicant was still in the cards and wrapping paper section at this time and was still fiddling with the safer.
When Constable Riddle arrived, Ms Fraser told him what she believed the applicant was doing. They stood together for a few minutes and then Ms Fraser noticed the applicant place an empty safer behind some cards on display. He then moved off and Ms Fraser went into the aisle where he had been standing and retrieved the empty safer from behind the cards. She showed it to Constable Riddle and explained to him that the applicant had removed a game from the safer. She suggested to Constable Riddle that he approach the applicant, retrieve the game and ‘just ask him to leave the store, and I would have been happy with that.’
Constable Riddle approached the applicant and asked for his details. The applicant raised his voice. Constable Riddle again asked for the applicant’s details and the applicant started shouting abuse at Constable Riddle. Constable Riddle and Mr Freeborn then took the applicant to the security office. Ms Fraser accompanied them. The applicant was searched and a Playstation game was found in one of his pockets.
Under cross-examination, Ms Fraser confirmed that Target did utilise surveillance cameras but that on the day in question there were no cameras in the particular area of the store where the applicant was apprehended. She confirmed that only one safer had been found.
In the course of the cross-examination, the judge expressed the view that the evidence was confusing as to where the different aisles were in relation to each other. (Earlier, during the Basha inquiry, the judge had suggested that it would be helpful to have a floor plan.) Over the lunch break, Ms Fraser prepared a rough floor plan of the relevant area of the store. The applicant objected to the use of the plan, but the objection was overruled. The plan became an exhibit.
The applicant makes a number of complaints in his grounds about the admission of the plan. He says that it was ‘total fabrication’ and hearsay. He also complains that it had not been produced at the Basha inquiry. In my opinion, these grounds are without substance. The course which the trial judge adopted, in suggesting the preparation of such a plan and permitting its tender, was directed at assisting the jury to discharge their task of assessing the evidence. There was no prejudice to the applicant. Although the plan came into existence during the course of the trial, the applicant was given time to consider the plan and a separate and subsequent opportunity to cross-examine Ms Fraser about it. When he did so, far from challenging the accuracy of the plan, the applicant asked Ms Fraser to point out on the plan where it was that he had been arrested. The plan was neither a fabrication, nor hearsay. It was part of Ms Fraser’s direct evidence.
The next witness was Constable Riddle. He was on foot patrol at the Highpoint Shopping Centre at Maribyrnong on 4 December 2002. Having attended the loss prevention office at Target where two people were in custody, he was requested to assist another loss prevention officer. He went to where Ms Fraser was. He watched the applicant ‘fiddle around with two games and he was sort of concealing them with the magazine’. Mr Riddle then approached the applicant and asked for his name and address. The applicant became ‘quite aggressive’ so Mr Riddle arrested him. Once they were in the loss prevention office, he searched the applicant and found a Playstation game inside his coat pocket. It was missing its security case. He also found in the applicant’s pocket a bottle opener and a staple remover.
The audiotape of the record of interview was played to the jury. The judge explained that some parts had been excised, as being irrelevant to the matters which the jury had to decide. His Honour directed the jury that they were not to draw any inference adverse to the accused by reason of the making of those excisions.
Under cross-examination by the applicant, Constable Riddle confirmed that the applicant had been aggressive towards him and was waving his arms around. When asked how far away Ms Fraser was, Constable Riddle said ‘I can’t recall as I was wrestling with the defendant.’ When asked about video surveillance, Constable Riddle said he believed that Target had no video surveillance at the time, ‘otherwise it would have been used as an exhibit’. The applicant put to Constable Riddle that he had shown him a receipt which had demonstrated to Constable Riddle that there was no theft, as a result of which he ‘got agitated’. Constable Riddle disagreed. (In his record of interview, which Constable Riddle conducted, the applicant made no mention of having produced a receipt).
Constable Riddle said that Senior Constable McEvoy had been his partner on that day. When they arrived at Target, Mr McEvoy had stayed in the loss prevention office with the two shoplifters who were already in custody. He did assist Constable Riddle in conducting the search of the applicant. In accordance with what Constable Riddle said was police policy, Constable McEvoy as corroborator had not prepared a statement. When the applicant asked whether Senior Constable McEvoy could be called, Constable Riddle stated that he was in Queensland.
At this point in the cross-examination, the applicant said he was ‘going to have to ask for time out. I have just lost my train of thought.’ The judge told the jury that
since Mr Pham is representing himself I am obliged to give him some latitude he might not have been afforded if he were represented by counsel. So we might have 10 minutes and give him time to get his thoughts together.
On the resumption, the applicant confirmed to his Honour that he was ready to proceed. This is a further striking illustration of the care which his Honour took to ensure, so far as was possible, that the applicant was not disadvantaged by reason of the fact that he was representing himself.
The applicant maintains his complaints about the utilisation of the edited record of interview. Thus his grounds include:
·‘audio manipulation of police audio interviews and failure to provide the accused with the changes prior to trial or during the trial’;
·‘failure to serve documents and modified audio recordings on the accused when a direct presentation was contemplated’;
·‘presiding judge refused to provide the jury with transcripts of police audio interviews that was manipulated so badly the court equipment would not play it’.
In my opinion, these complaints are without substance. As explained earlier, the trial judge insisted, over the applicant’s objection, that those parts of the record of interview dealing with the former charge of resisting arrest should be deleted. This was plainly in the applicant’s interests. There was no obligation on his Honour to provide the jury with the transcript of the record of interview. What mattered was that the videotape, edited in accordance with his Honour’s ruling, was available to be viewed by the jury. The applicant was well aware of the content of the interview, both in full and in its edited form.
The applicant also maintains that the judge
failed to provide to the accused court video evidence of the witness seeming to describe how the accused tried to alert in-store video cameras regarding assault by Constable Riddle, noted at the Basha inquiry.
As already noted, Constable Riddle did confirm under cross-examination that the applicant had been waving his arms around. In the course of the Basha inquiry, Ms Fraser gave evidence that, when Constable Riddle restrained the applicant, he
was throwing his arms around. He on several occasions called Constable Riddle “a racist prick”, and he shouted that “I hope there’s surveillance cameras in this store, because I’m going to sue everyone”.
The applicant appears to have wanted the jury to know that he was trying ‘to alert in-store video cameras regarding assault by Constable Riddle’. As already pointed out, the question of the applicant’s aggression at the time of the arrest, and the extent of force used by Constable Riddle to arrest him, were irrelevant to the theft charge, which concerned the applicant’s conduct while under observation, and the finding of the game in his pocket.
The course of evidence: count 3
In relation to count 3, the first witness was Paul Rodda, a loss prevention officer who on 13 March 2004 was working at the Coles supermarket in Richmond. At about 11:30 in the morning, he was doing normal patrols around the store when he observed the applicant select a number of recordable blank CDs. The applicant proceeded along the aisle, holding the CDs in his left hand, and then towards the front of the store. He then turned into a different aisle and proceeded along that aisle towards the rear of the store. As he did so, he placed the items he was carrying in his hand under his jumper. He then continued to proceed with normal shopping, placing things into a shopping basket which he was also carrying.
Mr Rodda followed the applicant to the checkout register where he paid for the items that were in the shopping basket. The applicant then left the store. Mr Rodda approached him as he was heading out of the shopping arcade. Mr Rodda informed the applicant who he was and asked him to return to the store with him. The applicant refused to go back. Mr Rodda then informed him that he was under arrest for shop theft and that he had to come back to the store.
The applicant still refused, so Mr Rodda ‘grabbed hold of him by his jumper, by his left sleeve.’ The applicant still refused to come back to the store and said to Mr Rodda that he was ‘going to go straight over to the police station’. They crossed Church Street, Richmond, together and as they did so the applicant:
removed the items with his left hand from under his jumper and placed them into one of the shopping bags he was carrying. We got across the road and he started to struggle with me and … I restrained him by holding his arm behind his back …
When they arrived at the police station, the applicant was placed under arrest.
The applicant cross-examined Mr Rodda about whether there was video surveillance in operation at the supermarket at the time. Mr Rodda was unaware of how many cameras were in the store. He said, ‘I don’t work the cameras, I work the actual floor. The cameras are there for backup evidence.’ Mr Rodda explained that he had gone back to check the video footage but the aisles in question were not covered by cameras, so there was no footage to be obtained.
When it was suggested to Mr Rodda in cross-examination that, if the applicant put five blank CDs under his jumper he would ‘look like a pregnant woman’, Mr Rodda answered, ‘I don’t think so. The jumper was quite bulky … It concealed them quite easily.’ He went on:
I don’t know whether you tucked your jumper into your pants a bit. That’s generally how it’s done. But that’s a common way of concealing items with people that are shoplifting. They quite often conceal them just into their clothing, tuck it into their pants, in behind a shirt, a jacket, even just tucked underneath their arm.
When asked by the applicant whether he had checked the video, Mr Rodda said:
I didn’t need to check the video. I watched you stick them under your jumper from the end of the aisle where I was observing. You were only metres away from me at the time.
The second witness on count 3 was Senior Constable Rebecca Barrett. She was on duty at the police station when Mr Rodda and the applicant arrived. She gave evidence that the applicant ‘appeared to be physically abusive and verbally abusive.’ The applicant cross-examined Senior Constable Barrett about video surveillance in and around the police station. Senior Constable Barrett said that the video footage of the applicant’s arrival at the police station ‘was unable to be saved’. Nothing turns on this, as events at the police station were irrelevant to the theft charge.
The final witness was Constable Robert Spillane, who came into the police station after the applicant had been arrested. After speaking to Constable Barrett and Mr Rodda, Constable Spillane conducted a tape-recorded interview with the applicant. The tape recording of the interview was played to the jury. Under cross-examination, Constable Spillane confirmed that the applicant at the time mentioned that he had been assaulted by Mr Rodda. When pressed by the applicant, Constable Spillane stated that his view was that there had been no assault. He was satisfied that Mr Rodda had been within his rights to restrain the applicant after arresting him.
The prosecutor then closed the Crown case. The applicant informed the judge in the absence of the jury that he pleaded not guilty and did not propose to give evidence or call any witnesses. It was then agreed that the case should be adjourned until the following day, to enable both sides to prepare their final arguments.
Guilty verdicts ‘not open’
The applicant submits that the guilty verdict returned by the jury was not open on the evidence. Under cover of that general submission, he raises a number of particular complaints, many of which have already been dealt with. In addition, he contends that:
·the judge failed to give the jury the correct instructions;
·the judge continuously ‘changed the goalpost (sic)’;
·failed to instruct the jury to consider ‘the high standards of beyond a reasonable doubt’;
·should have allowed the police ‘to reveal to the jury the police procedures and protocol’.
These contentions are without foundation. The judge’s charge to the jury was clear and accurate and entirely fair. As to the standard of proof required, his Honour said:
In criminal trials such as this the onus or obligation is not on the accused person to prove or establish his innocence; he does not have to prove or disprove anything. Before you are entitled to convict the accused of these charges, the Crown must prove each element – and I underline the word ‘element’ – of any such charge to your satisfaction beyond reasonable doubt. Those words mean what they say. If after giving the matter careful consideration you feel you have a reasonable doubt about his guilt in respect of one or other or even both of the charges, then it is your duty to find him not guilty. However, if after careful consideration you feel you have no reasonable doubt about his guilt in respect of the charges or one or other of them, it is your duty to convict.
The direction could not have been clearer. Further, his Honour on several occasions gave the jury the requisite ‘separate consideration’ direction. For reasons already given, his Honour was entirely correct to limit the scope of the trial to the charges against the applicant and the evidence brought in support of those charges. Neither the applicant’s apparent aggression when apprehended nor the extent of the force used to apprehend him was in issue.
One particular complaint now advanced concerns a topic raised by the applicant himself in his final address to the jury, when he said:
As you know when you walk into a supermarket, there are cameras, which means there is a contract between the shop and yourself, that you will be viewed and those cameras are there and available for you to have a look at, should any incidences be alleged. That is a contract between yourself and any supermarket that you walk into.
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As I have said before, every time you go into Coles, there is a contract between yourself and the proprietor, that you do the right thing and that the cameras are there to protect them and to protect yourself.
The relevant part of his Honour’s charge was in these terms:
Mr Pham suggested to you that there had been a total lack of care in the investigation of these matters, and he put it to you that there was a lack of evidence and in effect said to you, “Well, where are the items rather than the actual photographs?” He said to you on two occasions that there was some contract between people who go into a store and the store owner apparently to the effect that both you, as the customer, and they, as the store owner, have some pact whereby you are entitled to look at it. I think the clear inference that Mr Pham would have you make is that because there is no video, you could not be satisfied in either instance that the events took place, or certainly that the Crown could prove their case on each of the elements beyond reasonable doubt.
I must say here that I know of no such pact, as it were, between a customer and the store owner. Surveillance is installed by, I would have thought, a store owner to prevent shoplifting, deter it, and sometimes catch them, and people enter the store knowing that that is the case, but I do not know that it is any such contract or pact. But, anyway, it is a matter ultimately for you, but I should reiterate that the evidence is that there was no surveillance of any of these particular areas where the incidents took place.
The applicant complains that in this passage the judge tried ‘to influence the jury with his opinions of contracts between shoppers and storeowners’. The complaint is without substance. The judge was endeavouring – in fairness to the applicant – to identify the nature of the forensic assistance the applicant was seeking – or would have sought – to derive from video surveillance of the incidents. Nothing turned on the assertion by the applicant that the surveillance cameras were there to protect the customer. Doubtless, footage from a surveillance camera can operate in that way, for example, where it contradicts the eyewitness account of a store detective and thereby exculpates the person under suspicion. (In his first record of interview, the applicant expressed confidence that ‘the video surveillance will get me out’.) But that was not the case here. There simply was no video record of the shoplifting incidents which gave rise to the charges. The applicant by his cross-examination clearly exposed that issue for the jury’s consideration. By their verdict, the jury indicated that they did not consider that there was ambiguity in the evidence, as the applicant had contended.
The applicant also complains that the judge, having directed the jury more than once that the applicant did not have to prove anything, permitted the prosecutor to submit to the jury that he did have to prove his innocence. I have reviewed the transcript of the prosecutor’s final address and the applicant’s contention is based on a misunderstanding of what the prosecutor said. The only reference in the prosecutor’s final address to steps which the applicant might have taken was a reference to the non-production of a receipt for the Playstation game the subject of count 1. As the prosecutor pointed out, the applicant had given the police, in the record of interview, a rather confused explanation of how he had come to have the game in his possession. He first said that he had himself bought it from a shop called Electronic Boutique. A little later in the interview, however, he said he thought that ‘one of the family members’ had bought it but that he had ‘no idea’ where it had been bought. He then went on to say that it was bought ‘as a family gift. My task was to go to get some wrapping papers and wrap it up.’ He declined to say which member of his family had given it to him. When asked whether the person who bought it was likely to have a receipt for it, the applicant answered, ‘[d]efinitely’.
In final address the prosecutor pointed out that, on the evidence, the applicant had produced no such receipt in the two and a half years between the incident and the trial:
You would think that if you had access to [the receipt], it would be a simple matter … You would think that if you could have disposed of this by producing the receipt for the articles that you had legitimately purchased, you would do so and you would do it at the first opportunity. But that opportunity never happened …
This was the foundation of a submission that the jury should regard what the applicant had said in his interview as a fabrication. This was an entirely proper submission to make. It was a matter for the jury what view they formed of the account given by the applicant in the record of interview.
Conclusion
In my opinion, the application for leave to appeal must be refused. None of the grounds has been made out. There was no miscarriage of justice. The trial was conducted fairly and without any sign of bias.
The case against the applicant on both counts was straightforward, and the eyewitness evidence was powerful. Indeed, the applicant’s cross-examination of the Crown witnesses made little direct challenge to that evidence, being instead preoccupied with the issue of video surveillance. He was, of course, entitled to remain silent himself, but the effect of so doing was that the jury had only the
records of interview from which to discern his version of events.
Nor, contrary to the position which the applicant has maintained, does any question arise under the Commonwealth Constitution. There was no occasion for the service of notices under s 78B of the Judiciary Act 1903 (Cth).
BUCHANAN JA:
I agree with the President.
WHELAN AJA:
I agree that the application for leave to appeal against the convictions should be dismissed for the reasons given by the President.
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