Tims v Police - [2008] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TIMS v POLICE
[2008] SASC 141
Judgment of The Honourable Justice Gray
26 May 2008
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL
EVIDENCE - ADMISSIBILITY AND RELEVANCY
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Defendant and appellant convicted following a trial before a magistrate of common assault on a person other than a family member - prosecution tendered closed circuit television footage of the incident and called evidence from three eyewitnesses – whether defence counsel was incompetent for not objecting to evidence of eyewitnesses after the defendant expressed concerns about the prosecutor “tuning” the police witnesses – whether Magistrate erred in admitting into evidence the closed circuit television footage from the hotel where the incident occurred – whether Magistrate adequately warned herself of the dangers of relying on identification evidence.
Held, dismissing the appeal: no risk of miscarriage of justice identified with respect to the conduct of counsel - video footage was relevant and admissible evidence - the quality of the footage goes to the weight that should be given to it - Magistrate did not err in not warning herself in exactly the same terms as she would have warned a jury - Magistrate properly considered the identification of the defendant.
Criminal Law Consolidation Act 1935 (SA) s 20 and s 39; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA); Magistrates Court Act 1991 (SA) s 42, referred to.
Fox v Percy (2003) 214 CLR 118; R v Hughes (2007) 99 SASR 161; TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 214 ALR 1; Nudd v The Queen (2006) 225 ALR 161 ; Smith v The Queen (2001) 206 CLR 650; R v Maqsud Ali [1966] 1 QB 688; Staehr v Police [2007] SASC 383; Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; R v Dodson [1984] 1 WLR 971; Police v Dorizzi (2002) 84 SASR 403; Carlson v King (1947) 64 WN (NSW) 65; Pettitt v Dunkley (1971) 1 NSWLR 376; R v Keyte (2000) 78 SASR 68; R v R, R & R, LJ [2008] SASC 35; Domican v The Queen (1992) 173 CLR 555; R v Alexander (1980) 145 CLR 395; R v Festa (2001) 208 CLR 593, considered.

TIMS v POLICE
[2008] SASC 141
Magistrates Appeal
GRAY J

This is an appeal against conviction.
The Trial
The defendant and appellant, Richard Martin Tims, was charged with common assault on a person other than a family member, contrary to the former section 39(1) of the Criminal Law Consolidation Act 1935 (SA).[1] He was convicted following a trial before a magistrate.
[1] By virtue of the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA), the offence of common assault was replaced with the new offence of assault. It was enacted as section 20 of the Criminal Law Consolidation Act 1935 (SA), with effect from 15 May 2006.
The Prosecution Case
It was the prosecution case that a fight developed in the car park of a suburban hotel, adjacent to an entrance to the beer garden, on the evening of 4 June 2005. The complainant was attacked by a number of people, punches were thrown, and the complainant fell to the ground. He was kicked while on the ground. The prosecution asserted that it was defendant who kicked the complainant. The defendant was a security officer at the hotel and was one of about fourteen officers on duty at the relevant time. The uniform for the security personnel consisted of black trousers and a dark blue polo shirt. All security officers were wearing that uniform with the exception of the defendant, who was also wearing a dark grey zip-up jacket over his polo shirt. The defendant had a distinctive appearance. It was accepted that at the time he had a very short haircut and a moustache.
The prosecution tendered closed circuit television footage of the incident. This footage lacks clarity. It was said to show the defendant at the scene of the incident and at one point engaging in a kicking movement. It was not suggested that it was possible to discern whether any or what object was kicked.
The complainant identified the defendant as having ejected him from the hotel earlier in the evening. However, he was unable to say who kicked him in the assault.
Three eyewitnesses were called, Messrs Green, Marshall and Lowe. Messrs Green and Marshall were both regular attendees at the hotel, and gave evidence that they recognised the defendant as a security officer known to them, and as a person who kicked the complainant while he was on the ground. The witness Lowe had no previous contact with the defendant. However, he witnessed the incident, saw a kick being delivered to the complainant by a security officer, and later recognised the defendant as that officer from a photographic display prepared by the police. The prosecution case relied heavily on the acceptance of the evidence from the three eyewitnesses.
Mr Green gave evidence that he witnessed the assault. He was about five metres from the incident. Punches were thrown. He saw a security officer intervene in the altercation. A man was on the ground. It was common ground that this man was the complainant. Mr Green gave evidence that the security officer kicked the complainant. Mr Green described it as a “pretty hard kick”.
Mr Green described the security officer as having a shaved head and a “Merv Hughes type” moustache. He said that he had seen the defendant at the hotel before the incident. Mr Green used to regularly attend the hotel. In court, he identified the defendant as the assailant. He recalled that the assailant, on the night of the incident, was wearing a blue polo top and slacks.
In cross-examination, it was put to Mr Green that he was mistaken about who he observed kicking the complainant. Mr Green did not agree. He did not believe that he had mistaken the defendant for another security staff member working that night. He had kept his attention on what was going on throughout the incident. He said that there was no-one else working as security that night who had a moustache.
Mr Marshall gave evidence that he observed three men “beating up” another man. He then observed a security officer approach and kick the man, who by that time was on the floor. Mr Marshall was 15 to 20 metres from the incident. He paid attention to the fight because he knew two of those involved. He saw the security officer kick the complainant about three times with his right foot. The kick connected with the complainant’s head. He described the security officer as bald headed, with a “mo”, wearing a blue shirt and black trousers. He said that he had seen the security officer on earlier occasions. He gave evidence that there were no other security officers working that night of a similar description to the defendant.
In cross-examination, Mr Marshall said that he had not been drinking that evening. He had been attending the hotel on Friday nights for about 2-3 years. He said that he recognised the assailant. He said he did not know of any other bald headed males working as security officers at the hotel. He saw another security supervisor, Pietro Liseno, in the car park about 15 minutes after the incident concluded. He rejected the suggestion that Mr Liseno was with the defendant trying to break up the fight. Mr Marshall gave evidence that only one security officer was involved and that he was wearing a blue shirt. He later said that he saw “a bit of a blue shirt”. In re-examination, Mr Marshall said that no other security officer working that night had a bald head and a moustache.
Mr Lowe gave evidence that his attention was drawn to a person punching glass walls and trying to start a fight. He then saw someone approach a person who was on all fours, and “boot” him. Mr Lowe was not sure where the kick landed – he thought it may have been the chest area, but he could not be clear because of his position. He saw the one kick and that he recalled that the kick looked “pretty harsh”. He said that the person “doing the booting” was one of the security staff working at the hotel at the time. Mr Lowe undertook a police photographic identification process in August 2005. He identified a photograph of the defendant as the person who kicked the complainant.
The Defence Case
The defendant gave evidence. The defendant did not dispute that the complainant was assaulted through being punched and kicked. His case was that he was not the assailant.
The defendant described his attire that night as black shoes, black pants, a blue work shirt and a grey zip-up long jacket. He was certain that he was wearing his jacket, as it was cold where he was stationed in the beer garden.
The defendant’s account was that he had seen the complainant at the hotel on a number of earlier occasions. However, the night in question was the first occasion on which he had ejected him from the premises. He testified that he worked under the supervision of Pietro Liseno that evening and that his duties were to look after patrons, property and the well being of staff and equipment in the premises. He saw the complainant twice that evening: once when he ejected him and the next when the complainant was involved in a later altercation.
On the first occasion the defendant recalled that the complainant was intoxicated, and pushing, bumping and hitting people. The defendant was assisted by two other security officers at that time to remove the complainant.
On the second occasion the defendant said that the complainant was at the front of the hotel with a number of men. Aggressive words were exchanged. The defendant said that on this occasion the complainant and two other men were banging on windows in the vicinity of the beer garden. The altercation escalated. The complainant had his jumper pulled over his head and was being beaten repeatedly from every angle.
The defendant said that he spoke to colleagues and his supervisor. He then approached the fight. He pulled the complainant away. As earlier observed the defendant denied kicking or assaulting the complainant.
The defendant initially testified as to the presence of another security officer at the scene of the incident, but later in cross-examination admitted that he was mistaken.
Mr Liseno gave evidence. He was the security supervisor at the hotel. He claimed that he, the defendant and another security officer attempted to break up the fight. He did not see the defendant assault anyone. He recalled the person on the ground was kicked several times by a third party who then left the scene. The description he gave of the third party did not match that of the defendant.
The police arrived on the scene very soon after the incident. This was confirmed by the security footage.
The Magistrates Conclusions
The Magistrate summarised the prosecution and defence cases as follows:
The prosecution has simply argued that the defendant is identified as having kicked the victim, by three different persons, and the video helps to support what occurred.
On the other hand defence argued it was a brawl between drunken patrons. There were a number of people involved. There was no doubt the victim was assaulted but it was by more than one person and the prosecution have not established beyond reasonable doubt the assailant was the defendant. Further, they have noted there was a discrepancy as between the person identified as being the assailant and the clothes which are identified as being worn by the assailant. In each case it is noted that there was a good deal of action. It was dark and there may well have been problems seeing what was going on.
The Magistrate reviewed the closed circuit television footage and observed:
It is quite clear on the security tape of this incident that the defendant is wearing a black bomber jacket. It is not clear what he was wearing underneath but he has given evidence that the uniform was a blue polo shirt and he had a jacket on top because he was working outside.
… [Mr Lowe] did not agree that the defendant went over and pulled someone out of the group and put him to the ground although in closer examination the video seems to show that he did.
…
The defendant’s evidence is roughly consistent with the security footage. The footage is rather unclear as to exactly what happens once [the complainant] is put to the ground. At about 32.38 232-235 there is a section of the video where the defendant’s leg comes back and goes forward but it is certainly not absolutely clear what he was doing. … [H]aving considered the evidence and having watched the video numerous times I am satisfied beyond reasonable doubt that the defendant did in fact kick [the complainant] once when he was on the ground.
It is to be observed that the Magistrate rejected the evidence of Mr Liseno as unreliable:
I did not consider him to be an impressive witness. He appeared on my assessment to be surly and self-interested and was not particularly interested in giving direct evidence as to exactly what occurred on the night in any detail.
After examining each of the eyewitnesses’ accounts of the assailant’s appearance and dress, the Magistrate concluded:
I have carefully considered the evidence of each of the witnesses, in particular with regard to the clothing which was being worn by the assailant. The civilian and prosecution witnesses in my view were very careful in the manner in which they gave their evidence but were confident of what they saw. Whilst I accept witnesses can be confident but still make an error, two of them were familiar with the defendant, all were shocked by what they saw and therefore had good reason to note in their own mind the identity of the assailant. I consider there is a high likelihood that the witnesses observed the assailant was a member of the security personnel and therefore had assumed he had a polo shirt on. I note their evidence is quite clear that the witness was wearing a polo shirt. Even allowing for this having considered the evidence and having watched the video numerous times I am satisfied beyond reasonable doubt that the defendant did in fact kick the victim once when he was on the ground. I am satisfied that this action was unlawful and far in excess of any use of force which was appropriate for the defendant in the carrying out of his duties. Accordingly I am satisfied beyond reasonable doubt that the offence is made out and I find the defendant guilty as charged.
The Appeal
The Powers of the Court
The Supreme Court has wide powers when considering an appeal from a Magistrate. The appeal is in the nature of a rehearing. The appellate court has a duty to inquire and to protect an appellant against any substantial miscarriage of justice. The appellate court is required to examine for itself the Magistrate’s assessment of the evidence, bearing in mind that it does not have the advantage of seeing and hearing the witnesses.[2]
[2] Section 42 of the Magistrates Court Act 1991 (SA).
In Fox v Percy,[3] the High Court discussed the nature of an appeal by way of rehearing. Gleeson CJ, Gummow and Kirby JJ relevantly observed:[4]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.
These remarks are apposite. They confirm the broad powers that section 42 of the Magistrates Court Act 1991 (SA) confers on the Supreme Court when hearing appeals from magistrates, but also the duty that the appellate court has in reviewing and reaching its own conclusion on the evidence.
[3] Fox v Percy (2003) 214 CLR 118.
[4] Fox v Percy (2003) 214 CLR 118 at [23], [25] (footnotes omitted).
Conduct of Counsel
In an affidavit tendered on appeal, the defendant deposed:
There was a break in proceedings at about 3.45pm. I went and sat in the waiting area immediately outside the court room. …
… I saw the Prosecutor speak with [the complainant]. I could not hear what was being said as it was muffled. They spoke for about 30-40 seconds.
I then saw the Prosecutor who was holding a folder speak to two of the people who were going to be witnesses. As he started talking to them they stood up. The Prosecutor had a folder and opened the folder and said to them “you all need to be on the same page, you all need to remember what to say here and what to say about this”. It appeared to me the Prosecutor was referring to statements in his folder.
At that time I was sitting down, I was about 2 metres away. Of the two people he spoke to one was a guy with glasses who said “I understand what you mean”. The other one was a big guy who was also nodding his head.
I then saw that he went and spoke to the third witness separately. I did not hear what he said to that witness.
I then got up and went and spoke to my Barrister about what I had seen.
I told her that I believed that he was tuning up the witnesses.
My Barrister told me that she would be listening to the witnesses’ evidence and comparing it to their police statements and if any inconsistent statements occurred they would be picked up on cross examination.
On appeal, counsel for the defendant contended that defence counsel should have raised the incident with the Magistrate and should have objected to the admissibility of the evidence from the relevant witnesses. It was said that counsel’s failure to do so deprived the Magistrate of necessary assistance and that as a result the defendant did not receive a fair trial.
Allegations of professional incompetence require careful examination as they can have serious consequences for the lawyers involved.[5] In TKWJ,[6] McHugh J observed that the critical issue in examining the conduct of counsel is whether that conduct has resulted in a miscarriage of justice:
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, “whether counsel has been negligent or otherwise remiss…remains relevant as an intermediate or subsidiary issue”. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. …The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
[5] See R v Hughes (2007) 99 SASR 161 at [64].
[6] TKWJv The Queen (2002) 212 CLR 124 at [79] (footnotes omitted).

In Ali,[7] the appellant complained that a miscarriage of justice had occurred as a result of trial counsel not applying for a separate trial from the co-accused and not objecting to evidence that showed the appellant to be of bad character. Hayne J, with whom McHugh J agreed, observed:[8]
As McHugh J pointed out in TKWJ v R, “[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred”. The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ. Did counsel’s conduct result in a material irregularity in the trial? Is there a significant possibility that the irregularity affected the outcome? But the ultimate question is whether there has been a miscarriage of justice.
[7] Ali v The Queen (2005) 214 ALR 1.
[8] Ali v The Queen (2005) 214 ALR 1 at [18] (footnotes omitted).
The principles expounded in TKWJ and Ali were confirmed by the High Court in Nudd,[9] where Gummow and Hayne JJ observed:
As four members of this Court explained in TKWJ v R[10], describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Q). “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial[11], of whether there was a material irregularity in the trial[12], and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial[13].
Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused's counsel. Was what happened, or did not happen, at trial a miscarriage of justice?
Similarly, Kirby J observed:[14]
In TKWJ and in Ali, this Court emphasised the importance for appellate courts, considering complaints of incompetent representation in criminal appeals, to keep at the forefront of their attention the ambit of their jurisdiction and power contained in the applicable criminal appeal statute. Those appeals are not, as such, an inquiry into the professional competence of the legal representatives of the accused. That function, if it is to be undertaken, belongs to other bodies in a hearing in which procedural fairness is assured to the legal practitioner concerned. Of necessity, the only relevance of professional competence to a criminal appeal following conviction, is how far any proved incompetence contributed to the grounds enlivening the powers of the appellate court to quash the conviction.
…
…A focus on the consequences of the suggested incompetence has been emphasised by this Court[15], principally because of its insistence upon adherence to the statutory mandate in such cases of courts of criminal appeal. A like approach is now common in virtually all jurisdictions of which I am aware, addressing issues of incompetent legal representation.
[9] Nudd v The Queen (2006) 225 ALR 161 at [24]-[25].
[10] TKWJ v The Queen (2002) 212 CLR 124 at [31] (Gaudron J), [75], [97] (McHugh J), [101] (Gummow J), [103] (Hayne J).
[11] TKWJ v The Queen (2002) 212 CLR 124 at [31] (Gaudron J).
[12] TKWJ v The Queen (2002) 212 CLR 124 at [79] (McHugh J).
[13] TKWJ v The Queen (2002) 212 CLR 124 at [33] (Gaudron J), [79] (McHugh J), [101] (Gummow J), [104] (Hayne J).
[14] Nudd v The Queen (2006) 225 ALR 161 at [64], [68].
[15] TKWJ v The Queen (2002) 212 CLR 124 at [79] (McHugh J), [103] (Hayne J); Ali v The Queen (2005) 214 ALR 1 at [38] (Hayne J).
Gleeson CJ observed that although it is an objective inquiry that should be undertaken, it is sometimes relevant to inquire as to the reason that a particular course of conduct was taken by counsel: [16]
To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course up on the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. …
…
There will be some cases in which it is not possible to decide whether injustice has occurred without knowing why a particular course was taken at trial. To take an extreme example, if an accused person failed to give evidence because counsel wrongly advised that an accused is not entitled to give evidence, it is difficult to imagine that a court of criminal appeal would not intervene. The example shows that, although, as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective, one cannot eliminate the possibility of exceptional cases in which it is relevant to know why a certain course was or was not taken.
[16] Nudd v The Queen (2006) 225 ALR 161 at [10], [17] (footnotes omitted).
These authorities have recently been applied by the Court of Criminal Appeal in Hughes,[17] where I observed:
These authorities establish that the ultimate question to be answered is whether, viewed objectively, proven conduct gave rise to a material risk of a miscarriage of justice. …
…
There are reasons, both legal and pragmatic, which support giving latitude to counsel appearing in trials. Parties are ordinarily held to the way in which their counsel has presented the case, as the relationship between lawyer and client finds its foundations in the law relating to agency and apparent authority, and trials could not operate effectively without according deference to the mass of decisions necessarily made by a lawyer in the course of conducting a trial. The realities of the trial process influence the approach taken by appeal courts.
[17] R v Hughes (2007) 99 SASR 161 at [68], [73].
In the present case, no risk of miscarriage of justice has been identified with respect to the conduct of counsel. The only evidence of an alleged failure of counsel is the affidavit sworn by the defendant, where it is deposed that the defendant had concerns about the prosecutor “tuning” the police witnesses, and that his counsel did not act on these concerns.
A review of the transcript reveals that the witnesses’ version of events were challenged in cross-examination by the defendant’s counsel. There was no suggestion that counsel did not adequately test the witnesses’ version of events in cross-examination. It has not been demonstrated that counsel’s conduct resulted in a material irregularity in the trial. No relevant change in any witness’s account was identified. Each witness was tested in cross-examination. The advice given by counsel as to the manner in which the problem should be addressed was understandable. The defendant’s account fell short of establishing that witnesses were being inappropriately proofed. The real question was to determine whether the witnesses departed from their earlier statements. Such a departure has not been identified. There is no significant possibility that counsel’s approach led to a risk of a miscarriage of justice.
The Closed Circuit Television Footage
The Magistrate admitted into evidence closed circuit television footage from the hotel where the incident occurred.
The defendant submitted that the footage should not have been admitted into evidence. It was said that the footage was of poor quality and should not have been used to identify the defendant. The Crown submitted that the Magistrate was entitled to examine and rely on the footage, and that the footage was properly admitted as evidence in the trial.
It is through the prism of relevance to a fact in issue that a court can determine the admissibility of proposed evidence. In Smith,[18] Gleeson CJ, Gaudron, Gummow and Hayne JJ commented:
As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. … Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise.
[18] Smith v The Queen (2001) 206 CLR 650 at [6].
Video and audio recordings are frequently admitted as evidence in trials. In Maqsud Ali,[19] the Court of Criminal Appeal (UK) observed:
For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting, and recording conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.
[19] R v Maqsud Ali [1966] 1 QB 688 at 701.
As observed in Staehr,[20] video recordings have been accepted by the courts as real evidence of what is aurally and visually received on the playing of the footage. The rationale for the admissibility of this type of evidence was explained by the majority of the High Court in Butera v Director of Public Prosecutions (Vic)[21] in the following way:
The reason why a tape recording of a conversation is admitted in evidence to prove what is recorded is simply that use of the technology of sound recording and reproduction adds “to our knowledge other data not discernible by the unaided senses, or can make more accurate and more usable the data already discernible” … Those additions to our knowledge, as Wigmore points out … , are due to the use of instruments constructed on knowledge of scientific laws. A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence. The rules which govern the admission in evidence of tape recordings and the procedure to be followed by a court in ascertaining what is alleged to have been recorded on them must be moulded so as to deal with the technical and logical conditions which must be satisfied before a tape recording can furnish proof of what is recorded.
…
It is desirable to add, however, that the best evidence rule is not applicable to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved, there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversation or sounds originally recorded. There is no reason to apply the best evidence rule to copy tapes.
And as Dawson J observed:[22]
Of course, some modes of proof are better than others, but that, save in the case of written documents, goes to weight rather than admissibility. Relevance is the ordinary test of admissibility, although in criminal cases the trial judge has a discretion to exclude relevant evidence if it operates unfairly against the accused as it does when its prejudicial effect outweighs its probative value or on grounds of public policy when it has been unlawfully or unfairly obtained. The production and playing of an original tape recording remains the best means of proof of its contents, at least where it is audible, intelligible and the words used are in the English language. Where it is inaudible or unintelligible, expert evidence of its contents may be required and it has been held that an ad hoc expertise may be acquired by a witness by playing and replaying a tape so as to become more familiar with its contents than could be done by playing it only once or twice: Hopes v Her Majesty's Advocate; see also Reg v Menzies. If a tape records a conversation which is not in English, then expert evidence in the form of a translation will be required. Even in these instances, although what was said cannot be proved merely by playing the tape in court, the original tape should be produced or its absence satisfactorily explained. Failure to do so may impugn the evidence given of the tape's contents and provoke, at the least, adverse comment.
[20] Staehr v Police [2007] SASC 383 at [18]-[19].
[21] Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 184, 186-187 (Mason CJ, Brennan and Deane JJ).
[22] Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 195 (footnotes omitted).
Video footage is admissible as evidence of the appearance of the matters recorded, including any inferences fairly arising. In Dodson,[23] it was held that a photograph taken by a security camera was relevant to the identification of the assailant. The Court observed:
It is he submitted in the best interests of the administration of justice that photographs taken at the moment of an attempted robbery be admitted to evidence. They are an invaluable aid in many respects to identification. Argument about clothing worn and weapons carried is almost certainly thereby eliminated and more often than not the identify of the offender clearly revealed. He too relies upon the quotation to which we have already referred from the judgment in Reg. v Maqsud Ali [1966] 1 Q.B. 688, 701. He contends that that demonstrates beyond a peradventure that photographs of this nature are not only admissible but may be used for the purpose for which they were used in the trial of these two appellants.
We entertain no doubt that photographs taken by the process installed and operated in the branch office of the building society are admissible in evidence. They are relevant to the issues as to (a) whether an offence was committed and (b) who committed it. What is relevant is, subject to any rule of exclusion — we know of none which is applicable to this situation, prima facie admissible. As for the exercise of any discretion which a judge may have to exclude such evidence in the form of photographs, we have no hesitation in stating that we cannot see any reason why he should do so.
Moreover, we reject the attempt here made to persuade this Court to prevent a jury from looking at photographs taken by means of this technique, looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs. Photographs of the same man taken at other times we regard as permissible aids in this process, bearing in mind that some offenders after the commission of crime by one device or another change their appearances.
[23] R v Dodson [1984] 1 WLR 971 at 978. See also Police v Dorizzi (2002) 84 SASR 403 at [39].
The weight that should be afforded to videotape evidence can only be assessed after viewing the particular tape. The degree of clarity and quality of the images are factors which go toward establishing the weight which a trier of fact may properly place upon the evidence. The time of recording may or may not be significant. Even if there are only a few frames which clearly show an assailant this may be sufficient for the purposes of identification. The trier of fact is entitled to review the tape, to stop it and then study the pertinent frames and to repeat the process as needed.
I have reviewed the video footage. Although lacking clarity, the footage does provide evidence that is relevant to identification. It was on the basis of the video images that it was accepted by all that the defendant was wearing a jacket at the time of the incident.
The video footage was relevant and admissible evidence. The quality of the footage goes to the weight that should be given to it. The Magistrate did not err in making use of the video evidence in the way that she did.
The Identification Warning
The appellant contended on this appeal that the Magistrate did not adequately warn herself of the dangers of relying on identification evidence.
The position of a magistrate is comparable to that of a judge at trial presiding alone.[24] A judge presiding alone does not need to provide a warning in the same way that he or she would warn a jury. The starting point for examining warnings of which a judge must be aware of when presiding alone is the requirement that a judge give adequate reasons for the verdict. Those reasons should provide a clear explanation for the reasons for the verdict and be sufficient to allow an appellate court to review the verdict. In Pettitt v Dunkley,[25] Asprey JA observed:
In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law.
[24] Carlson v King (1947) 64 WN (NSW) 65 at 66 (Jordan CJ).
[25] Pettitt v Dunkley (1971) 1 NSWLR 376 at 382.

These observations were approved in Keyte,[26] where Doyle CJ explained the basis for the obligation of a judge presiding alone over a criminal trial to give reasons:[27]
If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the Judge has correctly applied the relevant rules of law. Absent reasons from the trial Judge, the ability to correct a verdict affected by “a wrong decision on any question of law” will be confined to errors made in the course of the trial itself, and to situations in which it can be said that, as a matter of law, it was not open to the Judge to convict. Cases in the latter category would be relatively rare. The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the Judge identified and correctly applied the relevant rules. The absence of reasons would also mean that in cases in which the circumstances call for particular care, such as cases involving identification evidence, there will be no means of knowing whether and how the Judge dealt with the matter requiring particular care. To a considerable extent, the CCA would be deprived of the ability to decide whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt was reached.
Given the basis of the duty to provide reasons, it can be seen that the necessary content of the reasons does not extend to the requirement that a trial judge speak in exactly the same terms as the judge would direct a jury.
[26] R v Keyte (2000) 78 SASR 68 at [44].
[27] R v Keyte (2000) 78 SASR 68 at [38].
This issue has most recently been considered by the Court of Criminal Appeal in R, R & R, LJ.[28] On appeal in the present case both counsel accepted that this decision correctly summarised the obligation of a magistrate. In that case I observed:[29]
It is important that a judge presiding alone in a criminal trial should give adequate reasons for the verdict. Those reasons should provide a clear explanation for the reasons for the verdict and be sufficient to allow an appellate court to review the verdict. It might be expected that the reasons would demonstrate that the trial Judge had proper regard to the relevant legal principles to be applied. The reasons should demonstrate an appropriate awareness of the burden of proof and the need for that burden to be satisfied in regard to each of the elements of an offence. The reasons should also allow the conclusion that proper regard was had to particular risks, for example, the dangers of convicting in the absence of supporting evidence, the weaknesses and the risks attaching to identification and recognition evidence and the significance of prior inconsistent out-of-court statements. These are but examples of difficulties that need to be addressed in particular circumstances. The reasons in appropriate cases should explain the way in which such issues have been addressed. There is no fixed formula for how this should be done. It is a matter for the individual judge. Some judges may choose to demonstrate their awareness in the language of a warning or direction. Other judges may choose to demonstrate their awareness by their process of reasoning.
[28] R v R, R & R, LJ [2008] SASC 35.
[29] R v R, R & R, LJ [2008] SASC 35 at [21].
The Magistrate did not err in not warning herself in exactly the same terms as she would have warned a jury.
Reliability of Identification Evidence
In criminal trials where identification evidence is admitted before a jury, the following principles, provided by the High Court in Domican,[30] guide the warning that the Judge will need to give to the jury:
[W]here evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
[30] Domican v The Queen (1992) 173 CLR 555 at 561-562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (footnotes omitted).
In the present case, the Magistrate, in her reasons for judgment, gave a detailed account of the evidence in the case. She highlighted that the identification evidence was the central factor in the case. She indicated that she was:
[A]lert to the warnings with respect to identification evidence and the errors which can be made particularly in circumstances where an incident has occurred in a very short period of time and where there is a good deal of movement, excitement and noise.
The Magistrate gave careful consideration to the evidence of Messrs Green, Marshall and Lowe and the manner in which they gave their evidence, with particular regard paid to the question of the clothing worn by the defendant. The reasons of the Magistrate adequately display that she was aware of the dangers involved in relying on identification evidence, and no risk of a miscarriage of justice can be inferred from the fact that she did not articulate in her reasons the same warning that would have been given by a judge to a jury.
Messrs Green and Marshall, were both familiar with the defendant. They had, as previous attendees at the hotel, observed the defendant working as a security officer on a number of occasions. Their evidence was evidence of recognition. They both described having recognised the defendant by his distinctive appearance. Mr Lowe’s evidence was identification evidence. He identified the defendant from a sheet of photographs shown to him by police.
On appeal, the defendant submitted that this evidence was unreliable. In particular, it was said that the fact that Mr Green and Mr Marshall both claimed that the defendant was wearing a blue polo shirt, and Mr Lowe claimed that the defendant was dressed in the uniform of a security officer, which included a blue polo shirt, demonstrated that the identification evidence was unreliable. Counsel emphasised that the footage showed that the defendant was wearing a dark jacket that was zipped up.
A trial judge always has a discretion to exclude identification evidence if its admission would result in unfair prejudice to the accused. In Alexander,[31] Gibbs CJ observed:
[A] trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.
[31] R v Alexander (1980) 145 CLR 395 at 402-403.
The discretion is not, however, to be exercised simply on the basis that the impugned evidence is weak. Weakness of evidence, by itself, is not a ground for exclusion, it is a matter that goes to the weight that the evidence should be given. As McHugh J observed in Festa:[32]
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.
[32] R v Festa (2001) 208 CLR 593 at [51].
The identification evidence, once admitted, formed part of the body of evidence to be considered by the Magistrate in its totality. In the present case, the identification evidence of the three eye witnesses all confirmed that it was the defendant who kicked the complainant.
Both before the Magistrate and on appeal, the defendant placed much emphasis on the description of the three witnesses of the assailant being a security officer wearing dark trousers and a blue polo shirt. None of the three spoke of the security officer wearing a bomber jacket. The defendant gave evidence that he was wearing such a jacket and the video evidence confirmed this to be the case. Like the Magistrate, I do not consider that this is a significant inconsistency in the evidence. One might expect that the witnesses’ attention was drawn to the incident, and that having identified the defendant (in the case of Messrs Green and Marshall) and having identified a security officer (in the case of Mr Lowe), it is not surprising that they would make only a general reference to the clothing worn by all but the defendant. It is significant that the three identified the assailant as a security officer, and the evidence was overwhelming that the defendant was the security officer to attend the incident.
Conclusion
Messrs Green and Marshall, regular attendees at the hotel, had observed the defendant at the hotel working as a security officer on earlier occasions. Both identified the defendant as having been involved in the incident, and as having kicked the complainant.
Mr Lowe, who had had no prior contact with the defendant, identified that it was a security officer who kicked the complainant, and later identified the defendant, from a photographic chart, as that security officer.
The video footage provided relevant evidence. It depicted the incident and confirmed the defendant’s presence at the scene, and something of his movements.
The only evidence that suggests that any other security officer went to the incident came from the defendant’s employer. A review of his evidence confirms that his testimony was inconsistent with that of a number of witnesses, and the Magistrate was right to reject the evidence of the defendant’s employer as lacking credibility and reliability.
The Magistrate adequately warned herself in regard to the problems associated with recognition and identification evidence. I reject the complaint concerning the conduct of defence counsel. I reject the challenge to the admissibility of the video footage.
There was ample evidence to support the Magistrate’s conclusion that the defendant was the assailant. It was plainly open on the evidence for the Magistrate to reach that verdict. Further, in my opinion, it was the correct conclusion.
For these reasons, this appeal should be dismissed.