R v Ainsworth[2011] QSC 418

SUPREME COURT OF QUEENSLAND

ANN LYONS J:

This application

1. This is an application by Justin Ainsworth to exclude the evidence of Senior Constable Jack Maddock as to his observations of over-written or deleted video footage about one period of time on 2 June and four periods of time on 5 June 2009.

The police operation and the video evidence

2. Mr Ainsworth is charged with trafficking in heroin over a two and a half year period, possession of heroin in excess of 200 grams on 10 June 2009 and possession of a pill press on 10 June 2009. Mr Ainsworth was charged as a result of a covert police operation which commenced on 28 May 2009. That operation utilised static camera recordings of two areas near bushland at Summit Place, Mt Ommaney during the period from 31 May to 10 June 2009.  Police operatives (SERT) were put in place on 4 June 2009 and they can give direct evidence about their observations during the period from 4 June to 10 June 2009. There are also some video recordings made by those police operatives on 5 June 2009.

3. In relation to the video surveillance by way of the static video camera from 31 May 2009 to 10 June 2009, the tapes usually recorded a day and a half to two days of evidence before they needed to be replaced. After the tapes were changed the footage was reviewed by Detective Senior Constable Maddock. Accordingly, Detective Maddock did not view the footage contemporaneously with the recording but usually a day or so after the incidents were recorded.

4. Detective Maddock made notes of what he saw at the time he viewed the tapes in relation to ten periods of time as follows;

1. 31 May 2009 from 19:22:23 to 19:37:35

2. 1 June 2009 from 16:16:59 to 17:11:35

3. 2 June 2009 from 18:15:07 to 18:31:30

4. 2 June 2009 from 20:55:32 to 21:07:47

5. 3 June 2009 from 7:12:07 to 7:26:30

6. 4 June2009 from 7:05:20 to 7:15:22

7. 5 June 2009 from 00:30:00 to 00:48:07

8. 5 June 2009 from 7:23:00 to 7:34:25

1. 5 June 2009 from 16:15:00 to 16:22:35

10. 5 June 2009 from 20:04:00 to 20:41:00

5. As well as making notes about what he observed during those ten periods of time Detective Maddock downloaded 33 digital still images about five of the periods of time namely (a), (b), (c), (e), and (f). In relation to period (j) there is a video recording made by the SERT team. Detective Maddock therefore made a deliberate decision not to download still images for five of the ten incidents namely (d), (g), (h), (i) and (j).

6. All the static video footage taken between 31 May and 10 June is unavailable either because the tapes were reused or technical issues meant that some periods of time were not actually recorded. The application for the exclusion of Detective Maddock’s evidence relates to his observations about the five periods of time for which there are no video recordings and no downloaded still images.

7. A summary of the relevant documentation collated by Detective Maddock is as follows;

1. 31 May 2009 - 5 images were generated from the footage and contemporaneous notes made of what was viewed.

2. 1 June 2009 - 6 images were generated from the footage and contemporaneous notes were made of what was viewed.

3. 2 June 2009 - 2 images were generated from the footage and contemporaneous notes were made of what was viewed.

4. 2 June 2009 -  footage was reviewed, no images were generated.

5. 3 June 2009 - 10 images were generated from the footage and contemporaneous notes were made of what was viewed.

6. 4 June 2009 - 10 images were generated from the footage and contemporaneous notes were made of what was viewed.

7. 5 June 2009 - No images were generated but contemporaneous notes were made of what was viewed.

8. 5 June 2009 - No images were generated but contemporaneous notes were made of what was viewed

1. 5 June 2009 - No images were generated but contemporaneous notes were made of what was viewed

10. 5 June 2009 - No images were generated but contemporaneous notes were made of what was viewed

8. Detective Maddock states that a decision was made to reuse the tapes after the first 13 digital images were downloaded for 31 May to 2 June. He also states that whilst he made notes about a second observation on 2 June, which commenced at 20.55pm, he made a conscious decision not to download a digital still image from that video footage.

9. He subsequently reviewed the later tapes for 3 and 4 June 2009 and 20 digital images were downloaded in respect of those two days. Accordingly 33 digital images are available in relation to observations between 31 May and 4 June. Whilst a static video recording of 5 June 2009 was made a decision was taken by investigating police at the time not to download images of observations at four different times between 12.30 am and 8.41 pm on 5 June 2009 as SERT operatives were put in place by that date and they were making visual observations and video recordings.

10. Detective Maddock however states that he viewed those videos of 5 June and made notes. Those tapes were then also reused and accordingly there are no downloaded digital images, nor any video surveillance for 5 June. The static camera subsequently malfunctioned and there were no further images captured by static video between 5 June and 10 June 2009.

The evidence of Detective Maddock

11. The Crown seeks to lead evidence from Detective Maddock about the footage which was overridden between 31 May and 5 June 2009. His evidence will relate to the ten periods of time on those dates. The Crown will tender the 33 digital still images which were downloaded in relation to five of those occasions. The Crown also wishes to lead evidence from Detective Maddock of his observations when he reviewed the video recordings of all ten recorded periods between 31 May and 5 June. It is clear that the Crown does not wish to lead evidence of Detective Maddock for the purpose of purportedly identifying the applicant as the person depicted in the images but rather he will give evidence only as to what he observed.

12. The applicant seeks to exclude from evidence Detective Maddock’s observations about what he reviewed from the video footage on those occasions where no digital still image was downloaded. They accordingly seek to exclude Detective Maddock’s observations on five of those ten occasions namely four occasions on 5 June and one occasion on 2 June.

13. Detective Maddock is one of the investigating officers and the admissibility of those 33 digital images is not in dispute. They will be tendered and relied on by the Crown.

The Crown submission

14. The Crown submits that all of the video footage of all ten occasions is a ‘document’ as defined in the Evidence Act 1977 (Qld) and that Detective Maddock is entitled to give direct observations of the document which is the ‘best evidence’ in light of its destruction.  It is submitted that his direct observations are secondary evidence of the documents content and are supported by the 33 digital images for the period up to 4 June and the visual observations and video recordings of the SERT operatives for 5 June.

15. Essentially the Crown seeks to have Detective Maddock give a general description of what he saw on the videos. Essentially his evidence will be that he saw a similar vehicle to that owned by the applicant and a man of similar appearance to the applicant on the ten occasions. The 33 digital stills correspond to the video footage for five of the ten occasions. There are no stills for the other five occasions, one on 2 June and four on 5 June 2009.

16. Should Detective Maddock be allowed to give evidence of what he observed on those five occasions on the basis of his notes of his observations of the videos when a deliberate decision was made override the original video and not to download digital stills?

17. It is accepted by the applicant that a police officer can give secondary evidence of the contents of a document that no longer exists where there is an explanation for its absence. The applicant essentially argues however that in this case there has been no satisfactory explanation and that if the evidence is admitted it would result in unfairness because it deprives the applicant of the possibility of testing the evidence.

Should the secondary evidence be admitted?

18. The law in relation to admissibility of the secondary evidence of the contents of electronic recordings was summarised by the High Court in Butera v DPP^[1]where Mason CJ, Brennan and Deane JJ stated:

“If the tape is not available and its absence has been accounted for satisfactorily, the evidence of its contents given by a witness who heard it played over may be received as secondary evidence.  That evidence is not open to the same objection as the evidence of a witness who repeats what he was told out of Court by another person who is not called as a witness.  In the latter case the credibility of the other person cannot be tested; in the former case, assuming the providence of the tape is satisfactorily proved, no question of its credibility can arise.  Nevertheless, when the tape is available or its absence is not accounted for satisfactorily there can be no reason to admit the evidence of an out of court listener to the tape recording to prove what the tape recorded: it should be proved by the playing over of the tape.  Prudence and convenience combine to support the application of the best evidence rule in such a case.”

19. Has there been a satisfactory explanation? The video tapes of what occurred between 31 May and 5 June have not been provided because a considered decision was made that the videos were of no further use and would not be required. Whilst it would seem that the tape was reused to conserve resources, essentially the videos were deemed to be of no further use because police used the images for the purpose of gathering preliminary intelligence and there was no initial intention to rely on that video material for any other purpose. It is clear therefore that a deliberate decision was made to delete the video and reuse the tape. I do not consider that to be a satisfactory explanation. Having made a deliberate decision that the evidence was no longer required I do not consider that it can be resurrected in the way sought by merely saying that the wrong forensic decision was made. Why should secondary evidence be admitted when a deliberate decision was made to discard the best evidence?

20. Even if there was a satisfactory explanation I consider that the evidence should be excluded in fairness to the applicant. The Crown seeks to lead evidence of what Detective Maddock observed on the occasions for which the original video evidence is not available and for which no digital stills have been downloaded.

21. It is significant in my view that Detective Maddock did not contemporaneously observe the subject live and did not contemporaneously observe the subject through the medium of the video camera. He did not watch events unfold as they occurred live. The only time he observed the person of interest was via his viewing of the videotape. That viewing was never contemporaneous and was often a day or two after the events in question. It is also clear that he scanned the whole tape and came to conclusions about what he saw. The notes he took were notes taken at the time he viewed the tapes not at the time the tapes were made.

22. The tapes no longer exist but 33 downloaded digital stills exist. Having viewed those 33 images it is clear that the quality of the digital stills is very poor and that identification of a particular person or vehicle would be very difficult. Without the video it cannot be assumed that the video tape was any clearer than the digital stills. Detective Maddock is in essence giving evidence as to his conclusions from what must be concluded to be poor quality videos. Furthermore of the ten incidents videotaped, five of those incidents occurred at night. Three of the contentious periods of evidence are Detective Maddock’s observations of videos recorded at night. Accordingly there are no digital images and no videos of these incidents but only notes made at the time the tapes were viewed some days after the events in fact occurred.

23. In my view the factual situation here is very different from that in R v LM^[2] where the defendant had been filmed by surveillance cameras and evidence was allowed of what the police officers, who were constantly monitoring those cameras, observed.  Those officers had all taken contemporaneous notes of what they observed through the camera at the very time the incident was occurring. That is not the position in the present case.  In LM some of that video footage was also missing.   McMurdo P discussed those issues as follows;

“[84] The remaining evidence to which objection is taken falls into three categories. The first category is Triggs’ evidence of his live observations of              the appellant and D on the monitor which was not recorded. This evidence was effectively an eyewitness account of the appellant's actions viewed through the              video monitor, no different from witnesses describing what they saw through a window, key hole or one way mirror. There was no video recording to which the jury could refer; Triggs’ evidence about these matters was the only evidence of the appellant's actions at the time. The principles relied on in Smith have no application.

[85] The second category is the evidence of those witnesses describing what they saw live through the video monitors. Like Triggs, they are effectively giving eyewitness evidence of what they viewed through the monitor and this evidence is admissible: see R v Sitek. The jury had the additional benefit of a              tape recording of exactly what these witnesses saw. The jury were required to view the tape to make up their own mind as to the accuracy of the eye witness              account, if in dispute. This category of evidence is quite different from the inadmissible identification evidence in Smith as it is evidence of what the witness observed live through the monitor. Witnesses are entitled to give              evidence of their live observations through a monitor and are entitled to look at contemporaneous notes or at the recorded video tapes to refresh their memories. They are also entitled to explain or clarify what is depicted in the tapes, especially where, as here, the tapes are not clear and the witnesses were generally more familiar than the jury with the environment, the protagonists              and the items depicted. If there is any dispute at trial as to the witness's description of events, the jury should be instructed that the tapes are the best               evidence and that if the tapes depict something which differs from the eye witness's account, in the absence of any satisfactory explanation, they must act on what they observe in the recorded tape.

[86] The last category is interpretative evidence from witnesses who, like the               jury, have merely viewed the recording and then given evidence of what they              saw on the tape which is before the jury. This category of evidence will not ordinarily be admissible unless the witnesses have some special knowledge to explain or clarify something in the tape recording or to assist the jury in understanding it. If the witnesses merely describe their own perceptions of               what is depicted on the tape, their evidence is not admissible because they jury could observe the tape and decide for themselves whether the appellant was committing acts to harm D: see Smith v The Queen. (footnotes omitted)

24. Detective Maddock was clearly not an eye witness to any of the events between 31 May and 5 June 2009. Neither was he describing what he was viewing live through a video recorder. In my view what he saw is really more in the category of interpretative evidence because he merely viewed the recording after the event and came to some conclusions.  If the video had been kept the jury could have viewed it as he had and come to its own conclusion.  If the images had been downloaded for those other five periods the jury could have come to its own conclusions. Significantly in my view the jury has been deprived of the opportunity to have Detective Maddock’s observations tested in any real way in cross examination because of a deliberate decision which was made to either delete or not utilise evidence which was in fact available.  

25. I consider that pursuant to s.130 of the Evidence Act the evidence should be excluded on the basis that it would be unfair to admit the evidence.  In R v Curran v Torney^[3] McGarvie J examined some of the principles relevant to the exercise of the discretion to exclude evidence and referred to the importance of weighing the competing requirements of public policy and ensuring fairness to an accused.  A factor he took into account was the fact that even if the evidence in that case was excluded the Crown was still able to present a strong case against the accused. Given the evidence which can be given by the police operatives and the 33 digital images it would seem that arguably the Crown still have a strong case.

26. I therefore exclude Detective Maddock’s evidence in relation to his observations of the videotaped material on five occasions namely;

(d)   2 June 2009 from 20:55:32 to 21:07:47

(g)   5 June 2009 from 00:30:00 to 00:48:07

(h)   5 June 2009 from 7:23:00 to 7:34:25

(i)   5 June 2009 from 6:15:00 to 16:22:35

(j)   5 June 2009 from 20:04:00 to 20:42:00