Rukavina v Police

[2004] SASC 247

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

RUKAVINA v POLICE

Judgment of The Honourable Justice Nyland

20 August 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE

Appeal against conviction - prosecution alleged that appellant stole six videos from a K-Mart store - appellant pleaded not guilty - convicted following trial in Magistrates Court - crucial issue whether videos could be identified as having been stolen from K-Mart - police failed to seize or retain videos - appellant deprived of opportunity to acquire and lead evidence which could have lead to an acquittal - prosecution failed to exclude reasonable hypothesis consistent with innocence - unfairness to appellant unable to be rectified - appeal allowed and verdict of acquittal returned.

Criminal Law Consolidation Act 1935, s 131, referred to.
Boyce v Nunn (1997) 138 FLR 475; Duncombe-Wall v Police (1998) 197 LSJS 398, applied.

RUKAVINA v POLICE
[2004] SASC 247

Magistrates Appeal : Criminal

1. NYLAND J: The appellant was charged on complaint that on 15 March 2001 at Modbury, she stole six videos which together had a value of $101.96, the property of K-Mart Australia Pty Ltd, contrary to s 131 of the Criminal Law Consolidation Act 1935. The appellant pleaded not guilty to the charge and the trial proceeded before a stipendiary magistrate sitting in the Holden Hill Magistrates Court on 25 November 2002.

2. The principal witness for the prosecution was Maureen Hart, a store security officer employed by K-Mart.  On 15 March 2001 at about 3 pm, she observed the appellant in the sound and vision section of the K-Mart store at Tea Tree Plaza, Modbury.  The appellant was seen to select various pre-recorded videos and place them in her pusher.  The appellant then moved to the manchester section of the store where Ms Hart observed her place the videos on and under some pillows.  The appellant then left the store.  The appellant returned at 4.15 pm.  Ms Hart continued to observe her.  The appellant was pushing her pram and was with her three young children.  One of the children went to the toy section of the store and the appellant returned to the manchester section where Ms Hart saw her recover the videos that had been previously placed there.  Ms Hart observed her place the videos in the basket under the pram.  The appellant and her children then went to the underwear section of the store where the appellant selected various items and proceeded to the fitting rooms.  When the appellant came out of the fitting rooms, Ms Hart observed videos which were in a Target bag in the appellant’s pusher.  The appellant left the fitting room area and walked through to party goods where she selected a packet of party blowers.  Ms Hart followed the appellant to the checkout and saw the appellant pay for the blowers.  The appellant produced the Target bag for inspection at the checkout.  After the appellant left the store, Ms Hart approached her and asked her why she had left the store without paying for the videos.  The appellant told Ms Hart that the videos were hers.  She said they had been purchased from Target and she produced a Target receipt which matched the videos in the bag.  The videos in question were described as Buffy Vol 17, Vol 18, Vol 19 and Buffy Season which was a three box set.  Ms Hart seized the videos and called the police.  The police had a short conversation with the appellant and then walked to the appellant’s car which was parked close by.  Ms Hart was present when the boot of the appellant’s car was opened.  She said that inside the boot were Buffy videos identical to those she had retrieved from the appellant. 

3. Constable Timothy Wedding was one of the police officers who attended at K-Mart in response to Ms Hart’s call.  He was accompanied by Constables Bartel and Bruce.  Constable Wedding had an interview with the appellant at K-Mart and was also present when the car boot was opened.  He described the videos in the boot as “basically the same” as those that had been seized by Ms Hart.  He did not, however, confiscate the videos which were in the boot.  He believed they were the ones which had been purchased from Target in accordance with the receipt.  For that reason, the police did not make any further enquiries with respect to those videos. 

4. The following day, pursuant to a prior arrangement, Constable Wedding interviewed the appellant at the St Agnes police station.  The appellant’s three children and her husband were present during the interview.  As it happened, all but three questions were answered by the appellant’s husband.

5. The appellant gave evidence.  She told the court that she had initially looked at the Buffy videos at K-Mart but had changed her mind about purchasing them.  She decided to get them from Target as she thought theirs were in better condition.  She said she went to Target and purchased the videos and was provided with a receipt.  She then returned to K-Mart where she tried on some underwear and purchased the party items.  At the checkout she paid for the purchased items and showed the videos to the checkout operator which she said she had purchased from Target.  She said she did not have any idea that there were videos in the boot of her car until it was opened.  She had forgotten they were there.  She thought she had bought them about a week earlier.  Although they were also Buffy videos, she said that they were different volumes from those which were in the Target bag.

6. The learned magistrate gave written reasons for judgment.  He summarised the evidence of Ms Hart, in the course of which he referred to her evidence that the videos placed in the pillow section by the appellant had K-Mart stickers on them.  Ms Hart said that although the ones removed from the Target bag did not have stickers on them, the area where the stickers had previously been was still sticky.  Ms Hart had not, however, mentioned this aspect of the matter to the police when she gave her original statement to them on 15 March 2001 (D1) and did not give any explanation as to why that was so. 

7. The learned magistrate went on to refer to the evidence of Timothy Wedding.  Constable Wedding’s interview with the appellant at K-Mart had been the subject of objection at the beginning of the trial.  The learned magistrate admitted that evidence de bene esse.  In his reasons for judgment, the learned magistrate found that the appellant felt under some coercion to participate in that interview.  He therefore indicated that, on balance, the interview should be excluded.  He went on to say:

   “As a result of the facts as presented Constable Wedding had formed the view that there must be an identical set of videos elsewhere.  He was correct in his assessment as subsequently on his evidence and the evidence of the other police officers, those videos were found in the boot of the defendant’s car.” 

8. The learned magistrate went on to refer to the record of interview conducted at the St Agnes police station and described it as being of no assistance whatsoever.  The learned magistrate summarised the evidence of the appellant and found her evidence as to videos in the boot to be totally implausible and rejected it.  He found Ms Hart and the witnesses for the complainant to be witnesses of truth.  He described the appellant as vague at times and said the content of her evidence was unbelievable.  He said that evidence was presented about scanning the bar codes but he found in relation to that evidence that it was inconclusive and it did not help him in relation to the issue.  The learned magistrate referred to the evidence of the appellant’s husband and in particular the interview conducted at the St Agnes police station.  The learned magistrate said that that interview was of absolutely no use to him other than to suggest that the appellant’s husband was joining in an attempt to conceal the truth from the authorities.  He concluded:

   “It is also interesting to note that the defendant in response to a question from Ms O’Leary maintained that this trial rested on her word against that of Ms Hart.  That to a point is correct.  However, there is corroborating evidence in terms of identical videos were found in the boot of her car and she maintains those videos were not identical to the ones that she allegedly stole from K-Mart.”

9. The learned magistrate then found the appellant guilty of the charge.

10. The grounds of appeal are set out in the amended notice in the following terms:

    “1.The trial of the appellant has miscarried, the verdict being unsafe and unsatisfactory because:

    1.1The learned trial magistrate erred in failing to resolve as a question of fact the central issue of the trial namely whether the property allegedly stolen was the property of K-Mart Australia Pty Ltd.

    1.2The learned trial magistrate erred in taking up and reasoning in the terms of the unproven assumption opined by the investigating police officer.

    1.3The learned trial magistrate erred in placing no weight on the issue of times and then reasoning in the context of that finding that the appellant had sufficient time to complete an act unproven by the evidence.

    1.4The learned trial magistrate erred by falling into the ‘Calides Trap’, thereby failing to consider whether the prosecution had proven each and every element of the offence beyond reasonable doubt.

    1.5The learned trial magistrate erred as a question of fact and law in not considering whether the prosecution had excluded the reasonable hypothesis that the videos in the appellant’s possession had been purchased from Target Australia Pty Ltd.

    1.6The learned trial magistrate erred in failing to resolve the question of the admissibility of the two recorded interviews upon a voir dire hearing.

    1.7The learned trial magistrate erred in using the second interview as evidence of credit as against the defence witness Mr Rukavina.

    1.8The learned trial magistrate erred in failing to direct himself that the evidence of the videos being scanned at K-Mart was hearsay and inadmissible.

    2.The trial has miscarried as a result of unfairness to the appellant because of the failure of the police or K-Mart Australia to retain as an exhibit the property allegedly stolen or provide to the defence a photograph of the property allegedly stolen or any other information that would allow the appellant the opportunity to investigate and produce evidence relevant to her defence.

    3.…”

11. It is unnecessary to canvass all of the matters raised in the notice, as on the hearing of the appeal, the Crown conceded that both the investigation and trial had proceeded on the basis of a number of unproven assumptions and that a number of errors had been demonstrated on the part of the learned magistrate which inevitably meant that the appeal had to be allowed. 

12. It is, however, necessary to refer to some of the issues raised in the notice as they are relevant to the order which should be made as a result of the appeal being allowed.

13. The essential issue to be resolved at trial was whether the videos seized from the appellant were the property of K-Mart Australia as alleged by Ms Hart, or the property of Target Australia as alleged by the appellant.  If the prosecution could not prove beyond reasonable doubt that the property was in fact the property of K-Mart Australia, thereby excluding the reasonable possibility that the videos were purchased at Target earlier the same day, then the charge of larceny could not be made out.

14. To that extent, the issue of identifying the videos by key codes and stock codes was crucial to both the prosecution and the defence.  It was put to Constable Wedding that the key code as opposed to the bar code on the videos would have identified the videos as coming from Target but Constable Wedding was not aware of what a key code was.  There was an attempt to demonstrate the key/bar code evidence by reference to some chewing gum which had been purchased by the appellant from Target and K-Mart respectively subsequent to the date of the alleged offence.  That evidence was, however, somewhat cryptic in its presentation as a result of which the learned magistrate may not have appreciated its significance.  In any event, the police acknowledged that they had not taken any steps to check those matters with Target and, in the end result, it is not surprising that the learned magistrate found the evidence relating to the scanning and bar codes to be inconclusive. 

15. Constable Wedding advanced his opinion or theory that as a result of the Target receipt, there was an identical set of videos elsewhere which had been purchased from Target and he assumed that they were the videos in the boot.  He failed, however, to identify any details concerning the videos in the boot and made no further enquiries about them.  It was, however, necessary to establish that the videos in the boot of the car did in fact come from Target in order to negative the appellant’s claim that the Target videos were not those in the boot, but those in the Target bag, and therefore had not been taken from K-Mart as alleged.  The evidence fell short of proving that matter but the learned trial magistrate appears, nevertheless, to have relied upon the unproven assumption made by Constable Wedding with respect to the videos in the boot in reaching his conclusion as to the guilt of the appellant. 

16. As I have said, however, the Crown conceded that the appeal should be allowed and the principal debate on the hearing of the appeal therefore related to the appropriate order to be made as a result thereof, in particular whether an order should be made for a re-trial.  This focused on the problems consequent upon the failure by the police to seize and/or retain the videos which were alleged to have been stolen or the photograph which Ms Hart initially told the police she had taken of them.

17. Ms Hart said in her original statement (D1) that the items were photographed and returned to stock.  There is, however, no evidence that any such photograph was ever provided to the police and no such photograph was produced by Ms Hart in the course of her evidence. 

18. The police were aware, as a result of their interview with the appellant at K-Mart, that she claimed that the seized videos were not from K-Mart but had been purchased at 4.12 pm that day from Target Australia.  The police took the appellant’s receipt to Target to check that the codes on the receipt were of a kind used by them, but did not take the videos.  It must have been immediately obvious that the recording of the bar codes on the videos was an important means by which to identify them as there were otherwise no identifying features on the videos to distinguish them from any other videos of a similar name capable of being purchased within either store.  The police failed, however, to record the details of the key/bar codes.  They also failed to take a photograph of the property and they failed to retain the videos as an exhibit.  The police could easily have taken the seized videos and/or those from the boot to Target and had them scanned or otherwise determined whether any of them were in fact the property of Target and purchased in accordance with the receipt that was produced.  That was, however, not done.  The seized videos were simply returned to K-Mart.

19. In Boyce v Nunn[1], Martin CJ dealt with the failure of police to interview a potential witness and failure by police to investigate the matter resulted in an unfair trial.  At 479-480, he said:

    “I can discern no relevant distinction between a case in which evidence, such as a confession, had been obtained in circumstances where it was unfair to admit it (for example, Duke v The Queen (1989) 180 CLR 508 at 512-514) and in the case where the unfairness may arise because other investigations by police had otherwise not been properly conducted, in the sense that the investigations were inadequate and for which there was no reasonable explanation or excuse for the failure.”

    [1] (1997) 138 FLR 475

20. In Duncombe-Wall v Police[2], Lander J considered a matter in which the record of a 000 telephone call to the police on the night of the alleged offence had been destroyed.  Lander J held that the destruction of the tape had caused the appellant to lose a real opportunity to put the whole of his case to the learned magistrate.  He said (at 408):

    “That opportunity could not have been ameliorated by any action on the part of the prosecution.  There was no other evidence directly on point.  This was the only independent objective evidence available to the appellant.  There was no direction that could have been given to the prosecution in the presentation of its case which could have ameliorated the hardship which the appellant suffered by reason of the destruction of the evidence.”

    [2] (1998) 197 LSJS 398

21. In this case, the issue of identification of the videos as either coming from K-Mart or Target was the crux of the matter.  The only way that Target could have identified the videos as coming from their store was by way of the key code.  The appellant is, however, unable to pursue that line of enquiry as the videos have not been retained, nor was any photographic or other record made with respect to them.

22. There was no reason for the police to have returned the seized videos to K-Mart until their ownership had been properly established.  As I have said, it would have been a simple matter for the videos to have been taken to Target to establish their provenance.  That can no longer be done.  There is therefore a significant unfairness to the appellant as she has been deprived of the opportunity to acquire and lead evidence that could have resulted in an acquittal.  Nothing can now be done to rectify or remedy the absence of that evidence. 

23. The appellant’s behaviour when she was in the K-Mart store was undoubtedly suspicious, as was the presence of the videos in the boot of her car.  There was also circumstantial evidence which was capable of proving that the seized videos came from K-Mart.  The evidence fell short, however, of proving that the videos in the boot were those to which the Target receipt related.  The prosecution therefore failed to exclude the reasonable hypothesis consistent with innocence that the videos which were the subject of the charge were the property of Target.  I therefore made an order on the hearing of the appeal that the appeal would be allowed and I returned a verdict of acquittal.

24. There is, however, one further matter which I should mention.  At the commencement of the trial, counsel for the appellant applied for an order that the interview by Constable Wedding with the appellant at the K-Mart store should be excluded on the basis that it was improperly obtained.  The learned magistrate indicated that he would hear evidence de bene esse and then ruled on the admissibility of that interview in his reasons for decision.  The learned magistrate quite properly recognised in the course of those reasons that the appellant felt under some coercion to participate in the record of interview and therefore made the order that the interview be excluded.

25. It is regrettable that the issue of the admissibility of that interview was not resolved prior to trial.  At the very least, it should have been resolved before the conclusion of the prosecution case as its admission was likely to have a bearing on what, if any, evidence would be called by the appellant.  The admissibility of the first interview was also relevant to the interview conducted at the St Agnes police station on 16 March 2001, as that second interview included parts of the first interview which was eventually excluded by the learned trial magistrate.  Had the learned trial magistrate conducted a voir dire hearing with respect to the first interview, it would have inevitably resulted in him considering the admissibility of the second which was of little, if any, probative weight and in my opinion should have also been excluded. 

1. In his reasons, the learned magistrate recognised that the second interview was of no use, but nevertheless relied upon aspects of it determine issues of credibility adverse to the appellant’s husband.  Having correctly determined that the second interview was of no assistance, it was inappropriate for the learned magistrate to thereafter rely on it for any purpose at all.