House v Queensland Police Service
[2010] QDC 538
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- House v Queensland Police Service[2010] QDC 538
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House v Queensland Police Service[2010] QDC 538
House v Queensland Police Service[2010] QDC 538
[2010] QDC 538
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE HARRISON
Appeal No 109 of 2010
ANDREW JOHN HOUSE | Appellant |
and |
|
QUEENSLAND POLICE SERVICE | Defendant |
CAIRNS
DATE 15/12/2010
JUDGMENT
HIS HONOUR: This is an appeal by Andrew House against a conviction in the Magistrates Court at Cairns on the 11th of May 2010 when he was convicted after a summary trial of an offence of committing public nuisance.
The grounds of appeal are as set out in his section 222 notice under the Justices Act and he made complaints of bias on the part of the Magistrate, made complaints about his inability to lead what he said was video surveillance evidence of what happened in the Night Owl store that evening and, in essence, has sought a re-trial.
As I indicated during the course of argument before me here this morning, I was very disappointed when I read how he was treated on the trial of this matter. As I said, the evidence available on any video surveillance was potentially the best evidence in terms of what happened within the store.
I have read the transcript and I have read the findings of the Magistrate, and it is clear that the Magistrate found that he had committed a public nuisance earlier in Grafton Street, again in the store, and again outside the store. To this end, he accepted the evidence of a police officer who appeared on the scene after the events in the store, the three security officers who worked for a private company under contract with the council, and also the person who was working in the store at the relevant time.
In making his findings about public nuisance in the store itself, the Magistrate said he accepted that he had behaved in an aggressive manner whilst in the store and he also accepted the evidence of the security officers. According to them and the witness who worked there, they politely asked him to leave the store; he refused and then lashed out at them and they intervened. They certainly all said that he was behaving in an aggressive manner whilst in the store.
Now, if what I have seen is footage of what happened that night, the picture painted there is totally different to that given in evidence on trial, and I do find this disturbing, although by no means the most disturbing aspect of what happened here.
He sought to lead the DVD, which he says he obtained from the manager of Night Owl, when he was giving evidence-in-chief on the trial of this matter. When he did so, the Magistrate asked the Prosecutor if he objected and, on cue, he did, and it was the way he objected that I found most disappointing. He said that the appellant had not produced the person who took the footage and then said that he had not complied with section 95(4) of the Evidence Act. The Magistrate asked him about that and said, "Has he got to disclose it? Is that what section 94 says?" Answer, "Yes. He's got to. He's got to produce or the witness has to produce the person that generated the image."
Over the page, the Magistrate accepted as the law what he had been told by the Prosecutor, when in actual fact it was not the law at all. He said the Prosecutor correctly identified it as section 95(4) which requires, for that the DVD to be admissible, there to be evidence in relation to the person who effectively generated the image, so someone would be required to be called to say, "I am the person responsible and employed by this person for supervising and controlling the CCTV camera. I am the person that produced a copy of it. This is the copy of the footage that was given."
He was then asked whether he was in a position to call any such person and he said he wasn't. He then asked for an adjournment and the application for the adjournment was refused.
Now, the first thing I did was to look at section 95(4) of the Evidence Act and it does not say any such thing. There is provision in section 95 for evidence of this type to be admissible, subject to certain conditions which are set out in section 95(2).
Section 95(4) deals with circumstances where a statement can suffice from the person responsible for providing it, and the person who is able to confirm that it was generated by the computers in question. So, the reference to section 95(4) in the transcript at the time the objection was made was completely erroneous.
Now, the issue of video footage did arise earlier in the trial. On page 9 of the transcript at line 40 the Magistrate asked the Prosecutor, "Is there any likelihood of any CCTV footage or anything like that?" Answer, "No, your Honour."
Now, the appellant told me, and it is not for me for determine the accuracy one way or the other in relation to these matters, but he told me that he did make a complaint of assault against the three security officers after this incident. That does appear in the transcript. He also told me that he'd provided the police with a copy of the DVD which he obtained from the manager of Night Owl, and that this was given to the police well before the trial.
More disturbingly, he told me that immediately before the trial he gave the DVD to the police officer who was prosecuting who took it back to the station to watch it, and came back and told him that he'd do everything he could to exclude this evidence. Now, as I said, I'm not here to determine the accuracy one way or the other of that, but if that was true, that gives rise to an incredibly serious situation. Not only was the Court misled in terms of what the law was, it may have even been misled in terms of whether or not there was any video footage of what happened in the Night Owl that evening.
When I look at the matter in its entirety I must say that I was disappointed by the overall attitude of the Police Prosecutor during the course of this trial. Time and time again he objected to questions. Like, one question was, "There was only one person in the store?" to one of the witnesses; to which back came the objection that this was comment, and it was pretty obvious that it was being put forward as a question and to take technical points like that in circumstances where someone is self-represented, to me, is quite petty.
I am disappointed that he was not given the opportunity of playing the video in the Court. Time and time again in the Courts we see, through cooperation of counsel, photographic evidence put before the Court. Very rarely do we ever see the situation that people have to go and get the technical evidence to prove that this happened or that happened, or that it was generated in a certain way. For that reason, I am disappointed that the Prosecutor took the objection, even if he never knew of the existence of it.
Then it disappoints me that he was not given an opportunity to either get the person who he got it off, or alternatively to get a statement from the person for the purposes of section 95(4) so that that evidence could have been played in Court.
As I said, when I saw the footage before, there is nothing unusual whatsoever about his behaviour in the store, until such time as he is grabbed by the first of the security officers who appears very quickly from nowhere. There wouldn't have been time for these "polite requests" that are referred to in the evidence, because they came straight in the door and grabbed him.
In short, it seems to me that because of what happened he did not receive a fair trial. Counsel for the respondent has argued that it was still open to the Magistrate to accept the evidence about what happened in the street, and I accept that there was evidence from the security officers to the effect that he behaved in a way which, if accepted, would clearly have been an offence of public nuisance.
The appellant gave evidence and denied that what happened was consistent with what those other witnesses had said. The Magistrate found that all of the witnesses called by the prosecution were credible and had no hesitation in accepting their evidence. Had, however, the evidence of the footage been admitted, then it seems to me that that would have cast very great doubts on the credibility of those same witnesses on whom he relied to convict the appellant. At the very least the Magistrate should have looked at the footage before refusing the adjournment.
In the circumstances, I have considered what I should do with this matter and it seems to me that what I should do is order a re-hearing in the Magistrates Court. I am not in a position to admit the evidence today because again I may need the certificate of the type referred to. So, it seems to me that the best thing I can do, having found that he was denied a fair trial by being denied the opportunity to present the video footage, is to refer the matter back to the Magistrates Court for a re-hearing.
...
HIS HONOUR: In the circumstances I exercise my power under section 225(2) of the Justices Act to refer the matter back to the Magistrates Court for a re-hearing, and I set aside the conviction.
I also believe that, in view of what I've been told, this matter should be referred to the Crime and Misconduct Commission. If, as he says, he gave a Police Prosecutor a tape and that Police Prosecutor stood up and told the Court there wasn't one, then that is an incredibly serious state of affairs. It is not up to me to determine that, but I believe that it should properly be investigated by the Crime and Misconduct Commission and I direct that the Registrar forward a copy of the transcript of today's proceedings and a copy of the transcript of the summary trial to the Crime and Misconduct Commission for further investigation.
Mr House, that means you get a re-trial.
APPELLANT: Yes, your Honour.
HIS HONOUR: It doesn't mean you get acquitted. You've still got to have your trial.
APPELLANT: Yes, your Honour.
HIS HONOUR: If you wish to contest this matter, it's a matter for you. But I would strongly recommend you try and get someone to represent you, because it is a very difficult thing to do on your own as you've no doubt gathered.
APPELLANT: Yes, your Honour.
HIS HONOUR: Yes, thank you.
APPELLANT: Thank you, your Honour. I appreciate it.