C v Police HC Wellington CRI 2007-485-100

[2008] NZHC 2258

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-485-100

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 February and 8 April 2008

Counsel:         R Gould for Appellant

M Snape for Respondent

Judgment:      8 April 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      The appellant appeals against her conviction for theft of a packet of tampons from a Wellington supermarket.   The appeal came before me in February of this year.  I adjourned the hearing to have the Crown file an affidavit from their primary witness, a security guard, relating to his evidence as to the content of a CD-Rom produced at the District Court hearing.  The content of that affidavit now allows a straight-forward resolution on this appeal.  These remarks should usefully be read in conjunction with my previous decision of 5 February 2008.

[2]      The prosecution evidence in this case was primarily from a security guard, Mr Oxadi.  His job at a supermarket, where these events occurred, was to look at a

C V NEW ZEALAND POLICE HC WN CRI 2007-485-100 8 April 2008

video screen (or screens) which show the view of various security cameras around the supermarket.

[3]      On 21 November 2006, he gave evidence in the prosecution of the appellant. He said he could see, from a video screen, the appellant take a small red packet from a particular shelf in the supermarket, open the packet, take out at least some of the contents, which he said the appellant put in her pocket, and dispose of the packet in another part of the supermarket.   The evidence was, when the appellant left, or attempted to leave the supermarket, that she did not offer payment for what the prosecution said were tampons she had taken.   She was not searched at any time, either initially by the security guard or by the police officer, and so there was no evidence whether she had, or did not have, these items in her pocket.  The appellant told the security guard that she had not taken the items.  An empty packet of tampons was subsequently found near where the security guard said he had observed the appellant had put the packet.

[4]      A CD-Rom was made of the security footage viewed by Mr Oxadi.   This CD-Rom was produced in Court.   It was neither played in Court nor seen by the Judge  at  the  time  of  the  prosecution,  apparently  because  of  some  equipment limitation in the courtroom.

[5]      The defence case at summary trial was to attack the claim by the security guard alleging he could not have seen what he claimed to have seen on the security cameras.  It was suggested he was mistaken in his observations alleging that he could see, or had seen, the appellant take the items and put them in her pocket, and that he was mistaken about the appellant leaving an empty packet in another shelf of the supermarket.  It was put to him that he was mistaken in his observations of what he said he could see on the video cameras.

[6]      The Judge in his decision concluded the security guard, who was apparently experienced in viewing such footage, was a credible and reliable witness.  As a result he convicted the appellant.

[7]      When  the  matter  came  before  me  at  the  first  hearing  of  this  appeal,  I indicated my concern that what appeared to be a vital piece of evidence, the security camera tape, had not been played to the Court.  I adjourned the appeal to allow the Crown  to  obtain  an  affidavit  from  the  security guard  as  to  whether  or  not  the CD-Rom actually showed what the security guard had observed of the appellant’s activities in the supermarket that day.  The security guard, Mr Oxadi, in his affidavit, says that the CD-Rom does produce exactly what he saw that day of the appellant’s activities.

[8]      Given there was a direct challenge at trial by counsel for the appellant as to what the security guard could see on the screen, the Judge, in my view, was obliged to view the CD-Rom.   Such a viewing would presumably go a significant way to resolving the essential dispute in this case: whether in fact the security guard could or could not see what he claimed to, namely the appellant’s activities in the supermarket that day.  Given the Judge would presumably be in a similar position to Mr Oxadi as far as observations of the appellant’s conduct that day, it was essential for the Judge to see the security camera footage to resolve the challenge by counsel for the appellant.  His failure to do so, in my view, was a fundamental error.

[9]      The Crown (I think properly) have not attempted to argue otherwise.  In those circumstances, the proper course is to allow the appeal, set aside the conviction and remit the case back to the District Court for rehearing.

“Ronald Young J”

Solicitors:

Crown Solicitor, Wellington