Warren v Police - [2024] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
WARREN v POLICE
[2024] SASC 61
Judgment of the Honourable Auxiliary Justice Nicholson
10 May 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE
Appeal from a decision of a Magistrate that the appellant was guilty of committing a prohibited act with human biological material by spitting on the complainant – where appellant's defence was that the act was an involuntary sneeze – where prosecution did not disclose unedited video footage of the offending – where edited video footage was tendered at trial – whether failure to disclose unedited footage is a miscarriage of justice – whether unedited video footage may have supported the appellant's defence of an involuntary sneeze – whether the appellant committed a prohibited act with human biological material by spitting or whether it was reasonably possible that it was a sneeze.
Held: Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 20AB, 20AB(1)(b), s 20AB(2)(a); Magistrates Court Act 1991 (SA) s 42; Criminal Procedure Act 1921 (SA) s 158, referred to.
Jones v Dunkel (1959) 101 CLR 298; Brawn v The King (2022) 141 SASR 465; R v Forrest (2016) 125 SASR 319; C, GM v Police [2007] SASC 310; Tazroo v Police [2002] SASC 155; Taylor v Hayes (1990) 53 SASR 282, considered.

WARREN v POLICE
[2024] SASC 61
Magistrates Appeal: Criminal
NICHOLSON AJ.
Introduction

Russell Warren (the appellant) was charged and tried before a Magistrate with the offence of committing a prohibited act involving human biological material causing no harm, contrary to subsection 20AB(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The Magistrate found the charge to have been proved beyond reasonable doubt.[1] The matter was adjourned for submissions and sentencing. Mr Warren has appealed the finding. The appeal lies to a single Judge of this Court pursuant to section 42 of the Magistrates Court Act 1991 (SA) and is in the nature of a rehearing. As such, I am required to arrive at my own decision after having regard to and making my own assessment of the evidence. I am to have regard to the findings of the Magistrate and, where questions of credibility arise, keep strongly in mind the advantage enjoyed by the Magistrate having heard and seen the witnesses give their evidence.[2]
[1] Police v Warren (Magistrates Court of South Australia, Magistrate Fisher, 24 November 2023) (“Magistrate’s reasons”).
[2] C, GM v Police [2007] SASC 310 at [40]-[41]; Tazroo v Police [2002] SASC 155 at [19]; Taylor v Hayes (1990) 53 SASR 282 at 291.
During an, essentially verbal, altercation in the street close to the complainant’s house frontage, the appellant is alleged to have spat at and on the complainant. The appellant had been deploying a leaf blower in the street just down from and moving towards the complainant’s house. The complainant for some, not readily apparent, reason was aggravated by this seemingly innocuous behaviour.[3] He confronted the appellant just before the appellant reached that part of the street in front of the complainant’s house; an argument ensued. On the prosecution case, the argument concluded and both parties retreated when the appellant intentionally caused human biological material to come into contact with the complainant.
[3] Not surprisingly, the evidence of the appellant and the complainant disclosed that there had been some “history” between the two.
Section 20AB provides as follows:
20AB—Further offence involving use of human biological material
(1)A person who commits a prohibited act involving human biological material against another person is guilty of an offence.
Maximum penalty:
(a)     if harm is caused to the victim—imprisonment for 3 years;
(b)     in any other case—imprisonment for 2 years.
(2)For the purposes of subsection (1), a person commits a prohibited act involving human biological material against another person (the victim) if—
(a)     the person intentionally causes human biological material to come into contact with the victim; or
(b)     the person threatens (by words or conduct) to cause human biological material to come into contact with the victim.
(3)For the purposes of this section, a person causes human biological material to come into contact with a victim if the person performs any act (including, without limiting the generality of this subsection, by spitting or throwing human biological material at the victim) intended or likely to cause human biological material to come into contact with the victim.
(4)In this section—
harm has the same meaning as in Division 7A;
human biological material means—
(a)     blood, saliva, semen, faeces, urine or vomit; or
(b)     any other material prescribed by the regulations.
The complainant’s evidence was to the effect that the appellant, whilst in close proximity, drew back from the complainant and spat saliva in the complainant’s face, including his eye. Spit also landed on the lens of a handheld camera then being operated by the complainant. The complainant said he did not immediately wipe his face; he instead walked back to his house where he wiped his face. The appellant gave evidence. He maintained that he involuntarily sneezed in the direction of, but did not intentionally spit at, the complainant. The contest at trial concerned intention; did the appellant intentionally spit or was he beset with an involuntary sneeze.
The prosecution tendered, as exhibit P2, an edited video recording of the protagonists’ confrontation taken from a CCTV camera, mounted at the front of the complainant’s property a short distance away from the action. The original CCTV recording had no sound. Unfortunately, the complainant engaged in a little post-production work. He arranged for a friend (who did not give evidence) purportedly to overlay and synchronise the CCTV visual recording with an ostensible sound recording of the altercation. According to the complainant, the ostensible sound recording was taken from a handheld camera that the complainant carried with him in order to record the confrontation. For reasons given by the Magistrate during the trial and in his judgment, his Honour declined to have any regard to the audio overlayed as part of exhibit P2. This decision has not been challenged.
The original unedited video recording from the CCTV camera was tendered by the defence as exhibit D1. According to the complainant, as at the time of trial, he did not have possession of the handheld camera recording (visual and sound) having provided it to his friend to do the post-production work for exhibit P2.
Thus, at trial, the Magistrate had before him the evidence of the complainant and of the appellant, the inconsequential (at least insofar as the appeal is concerned) evidence by affidavit of a police officer and two CCTV recordings[4] without sound, each of which recorded the altercation from a distance of some metres.
[4] Exhibits P2 and D1.
The Magistrate’s reasons
The Magistrate reviewed and summarised the evidence of the two protagonists[5] and then recorded, quite adequately, certain directions of law that his Honour was required to observe in determining whether or not the prosecution had proved the charge.[6]
[5] Magistrate’s reasons at [7]-[13], [15]-[18].
[6] Magistrate’s reasons at [19]-[20], [24].
His Honour found the complainant to be a “good witness” whose answers were “clear and responsive”. The complainant did not resile from his account during cross-examination. His Honour did find that the complainant “was clearly not a dispassionate or independent witness [who] was ill disposed toward the appellant”. The Magistrate also made the following findings concerning the complainant and the handheld camera footage.[7]
It is also of concern that the footage taken by the camera the complainant was holding has not been produced. No explanation has been provided. Apparently it was operating as the audio recorded on that camera was dubbed onto P2. It is something clearly that should have been disclosed. The defendant submitted that an inference that this footage would not have assisted the complainant should be drawn in these circumstances. I agree.
[7] Magistrate’s reasons at [23].
The Magistrate found the appellant also to have given his evidence “well” and not to have been swayed during cross-examination from his defence of having involuntarily sneezed.[8]
[8] Magistrate’s reasons at [24].
His Honour provided a detailed description of what he could see on viewing exhibit D1. I have also viewed exhibit D1 and I am in agreement with the following description given by his Honour.[9]
I have had regard to the CCTV footage D1. This is the original footage from the complainant’s CCTV. That footage records the complainant leaving the drive of his home and approaching the defendant who is some distance away. At that time the defendant appears absorbed using the leaf blower. He was about 35 metres away from the boundary of the complainant’s home. Leaves were being blown along the street in the direction of the complainant’s home, but the leaves were about 30 metres from the complainant’s premises. The complainant walked about 25 metres in the direction of the defendant and stopped. The complainant remained on his side of the street. The defendant at this stage was about 10 metres away on the other side of the street. The defendant saw the complainant and walked straight in the complainant’s direction, quickly covering the 10 metres between them. The defendant appeared annoyed and aggressive. He stopped very close in front of the complainant and looked down on the complainant in a confronting way. The complainant backed back a step. The defendant moved forward, closing the space. Words appeared to be exchanged and then the defendant, with his right arm held straight down, elbowed the complainant in the left arm. The complainant stepped back again and again the defendant moved beside him, closing the gap. Then, from a distance of about 60 cm, the defendant drew his head back then sharply moved it forward in the direction of the complainant’s face. The complainant immediately jerked his head back. The defendant then turned his back on the complainant and walked back to continue with his leaf blowing. The complainant turned his back on the defendant and walked back to his house. At the time the complainant walked back up the driveway, he can be seen holding a handheld camera in his right hand.
[9] Magistrate’s reasons at [25].
The Magistrate was satisfied that exhibit D1 contradicted the appellant’s evidence.[10]
In my view the footage in D1 contradicts the defendant’s evidence. The complainant had stopped about 10m from the defendant. It was the defendant who, in an aggressive fashion, walked up and stopped very close to the complainant, and not the complainant who was ‘invading’ the defendant’s ‘personal space’. He displayed a hostile demeanour and the movement of his head back, then sharply forward clearly depicted him as having deliberately spat on the complainant and is, in my view, entirely inconsistent with him having involuntarily sneezed at the time.
Having regard to the evidence of the complainant and the firm corroboration that D1 provides, I find beyond reasonable doubt that the defendant deliberately spat on the complainant, and I reject the defendant’s evidence that he sneezed involuntarily. I regard the complainant’s conduct in walking towards the defendant and filming his [scil: him] as unnecessary and provocative but that is not a defence to the charge.
[10] Magistrate’s reasons at [26]-[28].
The appeal
The appellant raised a number of grounds of appeal. However, the appellant pressed during the hearing, only the following two complaints. The first is that it was not open to the Magistrate to draw the conclusions he did from exhibit D1 and that this Court, on appeal after reviewing the evidence and coming to its own conclusion, should find that the vision on exhibit D1 was also consistent with the appellant’s case of an involuntary sneeze. In short, that the appellant sneezed on and did not intentionally spit at the complainant was, at the least, a reasonable possibility having regard to the evidence of exhibit D1. The second complaint is that the failure by the prosecution to disclose to the defence the recording (vision and sound) taken on the handheld camera has given rise to a miscarriage of justice and an unfair trial.
If the first complaint were to be upheld, the finding that the charge had been proved would be set aside and an order for acquittal entered. If only the second complaint were to be upheld, the Magistrate’s finding would be set aside and, ordinarily, a retrial in the Court below ordered. However, any such retrial would be nugatory in the absence of disclosure of the handheld camera recording. The question would arise whether to: order an acquittal; give consideration in this Court to the granting of a conditional stay (prosecution stayed unless and until the recording is disclosed); or remit the matter to the Court below for retrial, leaving the question of a stay, conditional or final, to be determined in that Court if and when the prosecution were to prosecute in the absence of the disclosure or a suitable excuse for non-disclosure. I do not need to explore these possibilities further because, for the following reasons, I am satisfied that both complaints should be rejected and the appeal dismissed.
The Magistrate appeared to approach the prosecution’s failure to disclose the handheld camera recording by having regard to the law stated in Jones v Dunkel.[11] I will put to one side the questions of when, if at all, or the extent to which the Jones v Dunkel approach might apply with respect to the prosecution case during a criminal trial. In this case, the appellant’s complaint is to be determined by having regard to the law governing the prosecution obligation of disclosure and whether any unjustifiable failure of disclosure gave rise to a miscarriage of justice. The law in this respect has recently been canvassed by the Court of Appeal in Brawn v The King.[12]
[11] [1959] HCA 8; (1959) 101 CLR 298.
[12] [2022] SASCA 96; (2022) 141 SASR 465.
Brawn concerned an appeal pursuant to the common form appeal provisions in section 158 of the Criminal Procedure Act 1921 (SA). Subsection 158(1)(c) expressly empowers the Court of Appeal to allow an appeal on any ground giving rise to a “miscarriage of justice”. The common form appeal provisions do not apply to an appeal from a Magistrate to a single Judge of this Court. As earlier noted, such an appeal is governed by section 42 of the Magistrates Court Act 1991 (SA). Subsection (5) provides as follows.
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the case for hearing or further hearing before the Magistrates Court;
(c)     it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.
The powers available to the Court on appeal necessarily allow for, inter alia, any enquiry into whether there has been a miscarriage of justice in the conduct of the trial.
The Court[13] in Brawn referred to a number of the relevant authorities before providing the following summary of the prosecution’s obligation of disclosure.[14]
As can be seen, the obligation to make disclosure is framed as a duty owed to the court, which requires that the prosecutor disclose as soon as practicable all material available to the prosecutor, or of which the prosecutor becomes aware, which could constitute evidence relevant to the guilt or innocence of the accused.
The prosecution duty to make disclosure extends to the disclosure of material that may undermine the prosecution case, which has been described as direct exculpatory evidence, as well as material that may cast doubt on the credibility or reliability of prosecution witnesses, which has been described as indirect exculpatory evidence.
The prosecutor’s duty to the court also extends to the disclosure of material which is even possibly relevant to an issue, as well as to material which is capable of raising a new issue, even where the possibility of that new issue may not be apparent from the evidence that the prosecution proposes to lead. The duty usually extends to what has been described as “unused material” available to the prosecution.
(Citations omitted)
[13] Livesey P, Bleby and David JJA.
[14] Brawn at [36]-[38].
There was some uncertainty arising from the evidence before the Magistrate as to whether or not the handheld camera recorded vision as well as sound and as to whether or not the prosecuting police had been aware of the existence of the handheld camera recording, prior to and as at the time the trial commenced. The prosecution certainly became so aware during the trial. Counsel for the respondent during the appeal conceded that the handheld camera recorded vision and sound and that such should have been disclosed by the prosecution. Having reviewed the evidence of the complainant and notwithstanding that some aspects dealing with the issue were ambiguous, I am satisfied that the handheld camera did record both vision and sound. I am unable to make a finding as to what happened to this recording after the complainant provided it to his friend for him to do the post-production work on the CCTV footage that ultimately became exhibit P2. As such, the respondent’s concession might be seen as generous to the appellant. In any event, I will proceed on the assumption that the prosecution’s failure to produce the handheld camera recording constituted a breach of its obligation of disclosure.
The appellant submitted that this recording was potentially relevant and supportive of the defence case for two reasons. First, it recorded the confrontation from a closer position than did exhibits D1 and P2. Second, the sound might have assisted the trier of fact to distinguish between a sneeze (“ah-choo” etc) or a spit, and to accept the respondent’s evidence that an involuntary sneeze was at least a reasonable possibility consistent with innocence.
This is not a case where had there been disclosure of the handheld camera recording the defence case may have been conducted differently.[15] The appellant’s concern is that he has been deprived of evidence that may have assisted the Magistrate in his task of evaluating the complainant’s and the appellant’s respective evidentiary accounts of what occurred. The content of the non-disclosed evidence cannot be known; speculation is to be avoided. Ordinarily, the consideration by a trier of fact is restricted to the evidence adduced. Often there will be witnesses who might have given relevant evidence who for a known or unknown reason are not called. Juries routinely are directed to ignore such matters and not to speculate. Judicial officers who serve as triers of fact also will adopt this position.
[15] See the discussion in Brawn v The King [2022] SASCA 96; (2022) 141 SASR 465 at [57]-[72].

However, where the evidence is not adduced as a result of a prosecution wrongful failure to disclose it, the position will be different. The question becomes one of whether the non-disclosure itself has deprived the appellant of a fair trial. In R v Forrest,[16] Kourakis CJ, with whom Kelly and Lovell JJ agreed, enjoined courts to observe caution in this type of case.
When there is a failure to comply with the prosecutorial duty to disclose material which might reasonably be expected to assist the defence, the question to be determined is whether it has resulted in a miscarriage of justice. Plainly the failure to disclose trivial or insignificant information will not of itself show that there has been a miscarriage of justice. Beyond cases of that kind, care must be taken before finding that the material could not have changed the result. The reasoning of the jury is inscrutable. Many factors individually or in combination may leave a jury in doubt about a witness’s testimony. A substantial long-standing involvement in criminal activity may quite properly be viewed by a jury as a reason to reject or at least cast doubt on a witness’s testimony. Moreover it does not lie comfortably in the mouth of a prosecuting authority, who has breached a duty calculated to avoid a miscarriage of justice, to contend that the withholding of the material was of no consequence.
These observations apply equally to a Judge sitting without a jury, save for the factor of inscrutability.
[16] [2016] SASCFC 76; (2016) 125 SASR 319 at [67].
Notwithstanding and having adopted this need for caution, I am not satisfied that the appellant has been deprived of a fair trial. The fact that the appellant spat and did not sneeze at the critical moment as found by the Magistrate, is clearly established by the vision in exhibit D1. The Magistrate was correct in finding beyond reasonable doubt, with the assistance of exhibit D1, that the complainant’s account was truthful and reliable. The respondent has provided the following summary description of the relevant CCTV footage in exhibit D1 which accords with my understanding having viewed the footage a number of times.
15:09:10 –appellant is seen in the top left-hand corner of footage wearing a yellow hi-vis vest and holding a leaf blower. He walks along the road, in the direction of the complainant’s property.
15:09:18 –complainant appears at the bottom left-hand corner of the footage, walks along his driveway, and picks up the black handheld recording device off the top of an orange cone.
15:09:31–complainant steps onto verge/footpath, and walks along the verge, in the direction of the appellant. He has the handheld device in his right hand and holds it up towards the appellant. The complainant stops walking and is apparently still holding the handheld camera up at the appellant.
15:10:26 –appellant turns off the leaf blower and walks up towards the complainant. He is holding the leaf blower in his left hand.
15:10:35 –appellant bumps his chest into the complainant, causing the complainant to take a step backwards. The appellant is ‘standing over’ / close to the complainant. The complainant takes another step backwards. The pair appear to be talking.
15:10:40 –the appellant stands to the lefthand side of the complainant.
15:10:46 –the appellant uses his right arm to bump or push to [scil: the] complainant. The appellant appears to make contact with the complainant’s left arm.
15:10:49 –the appellant uses his right arm to bump or push the complainant’s left arm a second time, causing the complainant to stumble and move to the side. The pair continue to appear to keep talking.
15:10:57 –the complainant leans down / bends over.
15:11:04 –the appellant draws back his head and neck, and then moves it forwards sharply in the direction of the complainant’s face. The pair continue to be side on, so the appellant has his neck / head turned in the direction of the complainant. The complainant jerks his head backwards.
15:11:07 –the appellant turns away and continues with his leaf blowing. The complainant walks back to his house and appears to look down at his handheld camera.
In my view, the action of the appellant spitting and not sneezing is so clear as to satisfy me that a closer view, particularly by way of a device handheld during the altercation as compared with a static, stable CCTV camera, would not have assisted the enquiry. I also do not accept that any recording of the sound made by the appellant which, at best, would have to be analysed against background noise and suffer from a level of ambiguity, could assist to undermine the clear vision of the appellant spitting. As a consequence, the Magistrate was correct to conclude as his Honour did, on the evidence before him. I have come to the same conclusion. Further, there has been no miscarriage of justice by reason of the non-disclosure by the prosecution of the handheld camera footage; the appellant was not deprived of a fair trial.
The foregoing disposes of the appellant’s complaints pressed at the hearing of the appeal. However, even if the appellant had sneezed, I still would dismiss the appeal. The gravamen of the offence charged is the intentional causing of human biological material (in this case, sputum) to come into contact with the person (in this case, the face) of the complainant.[17] I will accept, for present purposes, that a sneeze is an involuntary act. However, the direction in which a sneeze is projected rarely, perhaps never, will be an involuntary act. The appellant, as the sneeze approached (shortly prior to and at the time of the apparent intake of breath shown on exhibit D1) had a choice. On the one hand he could have at least attempted to cover his face by hand or inner elbow (the “Dracula” sneeze) or at least attempted to turn his head away from the complainant. With adults, these types of protective behaviours are almost automatic or instinctive. The appellant made no attempt to do any such thing. Instead, he held his ground and the expulsion of sputum by sneeze or spit was aimed directly at the complainant.
[17] Section 20AB(2)(a).
As to the failure to cover his face, the appellant who said he was recovering from a significant right shoulder injury, gave this evidence-in-chief.[18]
[18] Trial transcript (TT) 27.
A.He said something … me, “You’re a waste of space. You’re a big girl. I’ll do whatever I want” and I said, “I still can’t understand 10 years of this – achoo” and I sneezed.
Q.When you sneezed did you cover your face.
A.No, I can’t raise my right arm above my shoulder height.
Q.What happened after you sneezed.
A.I turned to walk away. …
At all material times, the appellant was holding the leaf blower in his left hand. However, he also gave this evidence during cross-examination.[19]
[19] TT29-30.
Q.Unfortunately as is the case, we don’t have the audio with the video, so we can only go on what we saw; and you would agree that the videos that have been played – would you agree that you elbowed [the complainant].
A.When his arm touched my arm, I just extended my arm out and said, “Stand back”. That’s all I done. I didn’t push him; I didn’t try to push him.
Q.You just gestured there with your left arm sorry – which – you’re not saying which arm it was, but you’re saying that you did what, shoved him back with your arm.
A.Just moved my arm out slightly to get my own personal space. I didn’t push him in anyway. I just fanned my arm out.
Q.[The complainant] gave evidence that he stumbled or lost his footing as a result of that. Did you push him hard enough to make him stumble.
A.No. [The complainant] exaggerates and magnifies every possible thing.
Q.When you gave your evidence just now you made no mention of this contact – I say – I put it to you as shirtfronting, you say that didn’t happen. I put it to you as saying you elbowed him; you’re saying you were simply fending him off. You made no mention in your evidence. Why was that.
A.Very minimal to me. I just asked – gestured with my arm to give me space. It’s very minimal little thing from me.
I make the following observations. The video recordings show the appellant deploying his right arm, albeit with relatively confined movements, during the altercation as described in the earlier extract from the respondent’s submissions. When covering one’s face with one’s hand, it does not require the arm to be raised above shoulder height; indeed it requires virtually no movement of the shoulder and upper arm at all. In any event, the appellant made no attempt to turn his head. On my review of the footage on exhibit D1, and assuming an involuntary sneeze, the appellant made no attempt whatsoever at a protective measure when he could have done so. He deliberately directed any such sneeze at the complainant. Even accepting the appellant’s sneeze case, he intentionally caused human biological material to come into contact with the complainant.
The appeal is dismissed.