Tazroo v Police - [2005] SASC 111

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
TAZROO v POLICE
Judgment of The Honourable Justice Duggan (ex tempore)
8 March 2005
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
Appeal from a decision of Magistrate - appellant convicted of being in possession of goods reasonably suspected of having been stolen or obtained by unlawful means - magistrate misunderstood evidence of appellant on crucial issue - appeal allowed - conviction set aside - retrial ordered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED - IN PRESENCE OF ACCUSED PERSON
Right of accused to be present at all stages of trial - prosecution omitted to tender evidence which was marked for identification - magistrate admitted the exhibit after the matter was reserved for decision - accused not present - unnecessary to consider consequences of this breach in light of first issue.
R v Jones (2002) 2 Cr App R 128; Gazepis v Police (1997) 70 SASR 121, discussed.

TAZROO v POLICE
[2005] SASC 111
Magistrates Appeal

DUGGAN J. The appellant, who is unrepresented, has appealed against his conviction on a charge of being in possession of a camera which, either at the time of such possession or at a subsequent time before the making of the complaint, was reasonably suspected of having been stolen or obtained by unlawful means. It was alleged by the prosecution that the offence took place on 25 April 2003.
The appellant was convicted without further penalty. He represented himself at the hearing of the appeal and for part of the trial in the Magistrates Court.
The appellant was spoken to by uniformed police officers in Rundle Mall at approximately 7.30 pm on the date of the alleged offence. According to the police officers, they discussed with him whether there were any outstanding warrants which had been issued against him. They then resumed their patrol.
Later in the evening the police officers received a radio message to attend the Stamford Plaza Hotel on North Terrace. The appellant was sitting at a bar in the hotel. The police officers had been advised that he refused to pay for a meal he had consumed at the hotel. According to the prosecution case, the appellant was in possession of a backpack which was searched by the police. In it they found a Pentax camera which, according to the evidence, was valued at approximately $449.
The appellant was later questioned at the Hindley Street Police Station. He gave the appearance of being affected by alcohol or a drug, but the extent to which he was so affected is a matter of debate. The appellant was questioned about the camera but his answers made little sense.
The two police officers gave evidence at the hearing before the magistrate on 9 March 2004. The appellant was represented at this early stage of the trial and his counsel cross-examined the officers. The trial was then adjourned because of a difficulty in arranging for a prosecution witness to attend. The hearing was eventually resumed on 11 November 2004.
At the resumed hearing, the prosecution closed its case without calling any further evidence and the appellant made an unsuccessful submission that there was no case to answer. He was unrepresented at this stage. The appellant then gave evidence.
The police officers had given evidence that the appellant was not in possession of the backpack or the camera when they first spoke to him in Rundle Mall. The appellant denied that this was the case. He said he had the camera with him at that time.
When asked about the basis of his suspicion in relation to the property, Constable Galanos said:
“Cameras like this are easily obtained, easily sold. They can be exchanged for illicit substances. He primarily because he didn’t have the camera with him earlier when we spoke to him. He didn’t have a bag with him when we saw him.”
In answer to the same question, the other police officer, Constable McPherson said:
“After we took Mr Tazroo back to Hindley, we then took him to the City Watch-house where, on looking at the statements again that were taken there was a suspicion there that there was a gap between where the bag was, the presence of the bag, and the camera being in a bag at the time. It started the suspicion that at one point there was a bag with no camera and a bag with a camera.”
The appellant said, in evidence, that he purchased the camera from a man in the vicinity of the Casino where the appellant had been gambling. He said that he was able to establish that he had the camera in his possession some weeks prior to being arrested on this charge. He referred to a letter from a camera shop where he said he had priced some batteries for the camera. According to the appellant, he contacted a person from the camera shop who remembered him and who provided a letter to the effect that the appellant was asking about the batteries on 20 April 2003. The appellant was permitted to give this evidence at the hearing.
At the resumed hearing, the appellant again referred to the letter he obtained from the camera shop. The magistrate asked if the letter was “back with” the appellant who said that it was and the appellant then referred to the date of the letter. It would appear that the letter was not formally tendered but that, on the occasion of the resumed hearing, the magistrate asked for the letter which was then made available to him.
Counsel for the respondent argued that the letter contained inadmissible hearsay. However, there is no reference in the transcript to the appellant being told that the letter was hearsay evidence. The transcript does not indicate that he was told that he would have to call the person to give evidence. The impression given in the transcript is that the contents of the letter were taken into account by the magistrate in an informal manner.
It was not until cross-examination that the appellant said he purchased the camera from a man in the vicinity of the Casino. The following exchange then took place between the magistrate and the appellant:
“HIS HONOUR
Q.I must have missed your evidence a moment ago. I thought you said you purchased it from the camera shop?
A. No, no, your Honour. The camera shop, I gone there, was the camera shop was for the batteries. After I purchased the camera, the camera shop, I gone there for the batteries as the letter states. That’s for two -
Q.I can only - my note is you purchased the camera from the camera shop, Adelaide Film and Camera, Hindley Street.
A.That was the batteries that I purchased from the camera shop, not the camera itself.”
A perusal of the transcript indicates that the appellant was correct in saying that he went to the camera shop in relation to the batteries. He did not say that he purchased the camera on this occasion.
In his reasons for judgment, the learned magistrate said:
“The defendant said he did have the backpack with him in Rundle Mall. The defendant initially said he purchased the camera from a camera shop - Adelaide Film and Camera in Hindley Street. Not long after he said he purchased it from a man coming out of the Casino and paid about $200 for it.
When cross-examined about this inconsistency he attempted to clarify by saying he got a quote for batteries for the camera from the camera shop and purchased the camera from the man at the Casino. I found the defendant’s evidence hard to follow and, on the crucial issue of how the camera came to be in his possession, completely unreliable.
The defendant did not dispute the camera was in his possession. He attempted to explain how it came into his possession. On this point as I have indicated his evidence was inconsistent and I reject his explanations.”
The magistrate then went on to say that:
“The facts were sufficient to give rise to a reasonable suspicion the camera was stolen or unlawfully obtained.”
He concluded by saying:
“I reject the defendant’s evidence as to how the camera came into his possession.”
It is clear from the transcript of the proceedings that the magistrate’s recollection of what the appellant said about the purchase of the camera was incorrect. At no stage did the appellant say that he purchased the camera from the camera shop. The magistrate erred when he took this mistaken view into account when assessing the appellant’s evidence. It appears to have been a major consideration in the magistrate’s rejection of the appellant’s version. Furthermore, it was an error which related to what the magistrate described as “the crucial issue of how the camera came to be in [the appellant’s] possession”.
Mr Jacobi, for the respondent, has pointed out various unsatisfactory features of the appellant’s evidence and has submitted that those matters are sufficient in themselves to destroy the credibility of the appellant and to cause the magistrate to accept the police version of events, including the suspicion which they said they held in relation to the possession of the camera. Nevertheless, it is my view that the magistrate decided the matter on grounds which included the manner in which the appellant came into possession of the camera. He identified this as a crucial issue. In these circumstances, it cannot be said that there was no risk of a miscarriage of justice. The conviction must be set aside.
There is a further consideration which was not the subject of a ground of appeal but which I should mention. The police interview with the appellant was video recorded and a transcript made of the conversation. The magistrate stated in his reasons for judgment that after the case had been adjourned following the close of evidence he realised that the prosecution had omitted to tender the video recorded interview and the transcript of the interview, both of which had been marked for identification. The magistrate noted that defence counsel did not object to the admission of the interviews at the time when she was appearing for the appellant. The magistrate stated in his reasons that he admitted the objects into evidence. It appears that he did so without calling the matter on again. The admission of the exhibits was carried out without a formal hearing and in the absence of the appellant.
It is a fundamental right of an accused person to be present at all stages of his or her trial: R v Jones (2002) 2 Cr App R 128 and Gazepis v Police (1997) 70 SASR 121. The right extends to all stages of the trial including procedures which might be regarded as “formal”. However, in the light of my view as to the first issue I have discussed, it is unnecessary to consider the consequences of this breach.
The notice of appeal was filed out of time but the respondent does not object to an extension of time.
I extend the time within which to appeal to the date upon which the notice of appeal was filed.
The appeal is allowed, the conviction set aside and a retrial ordered. The matter will be remitted to the Adelaide Magistrates Court for retrial before another magistrate.