Video surveillance is pretty common these days, and video footage frequently features in forensic forums.

In Hodder v Public Transport Authority [2009] WASC 239 the West Australian Supreme Court considered an appeal from a Magistrates’ Court hearing where video footage of the offence was lost. James Hodder argued his conviction was unsafe and unsatisfactory because the video wasn’t provided to him for use at his court hearing.

In WA, one ground of appeal from a summary court under the Criminal Appeal Act 2004 s 8(1)(b) is that there was a miscarriage of justice.

Mr Hodder was charged with causing a nuisance to people in the Midland railway station contrary to the Public Transport Authority Regulations 2003 (WA) reg 13.

Transit officers gave evidence there were seven to ten people around when Hodder was swearing.

At the original hearing Hodder claimed there was no one at the station. He had asked for video footage, but the Court was told that footage was only kept for 7 days and had been destroyed after the incident, but before the hearing.

The Supreme Court considered that didn’t cause a miscarriage of justice, or grounds to stay a prosecution.

McKechnie J followed R v Edward (2009) 255 ALR 399 (we discussed that case back in May), where the High Court said:

[31] The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.

He also referred to Police v Sherlock (2009) 103 SASR 147 — what a great name for a criminal case! — where the Full Court of the South Australian Supreme Court said:

[76] …It has never been the case that a trial is fair only if all potentially relevant material is available to the parties, or at least to the accused person in criminal proceedings. Such a wide notion of fairness cannot be supported by the authorities.

I know of two other cases that deal with a similar point, though they dealt with admissibility of witnesses’ oral evidence when video footage was lost, rather than claims of a miscarriage of justice or a permanent stay of proceedings.

The first is Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479. Douglas Taylor was charged with stealing Duracell batteries worth £1.89.

A security officer watching closed-circuit televsion cameras allegedly saw Taylor pick up the batteries, put them in his jacket, turn and glance up at the camera (showing his full face) and leave the store.

That incident was video recorded. The recording was seen by the store manager, two police officers, and the defendant’s solicitor.

The tape was returned to the shop, and new security officers later recorded over the footage before the court case.

The defendant argued the witnesses could not give evidence of what they say on the recording because it was destroyed.

The High Court (Queen’s Bench division) considered the evidence of what the witnesses saw on a video recording was no different from evidence of witnesses who saw the event directly.

It was therefore not hearsay or inadmissible for that reason. (But, like all evidence, it could vary in its weight, credibility and reliability.)

Taylor was applied by the Queensland Court of Appeal in R v Sitek [1988] 2 Qd R 284. Sitek was playing blackjack at Jupiters Casino on the Goldcoast. He handed the croupier $3000 cash; she mistakenly thought it was $6000, and gave Sitek $6000-worth of chips, and was accused of dishonestly keeping them, knowing they were worth double what he was entitled to.

The transaction was viewed by a camera-surveillance operator, Miss Estreich, over a live video-feed. She was able to give evidence of what she saw over the video-feed, as eyewitness evidence. It didn’t matter if a witness saw a transaction directly, or through a telescope or heard it over a telephone. Applying Taylor, nor would it matter if the transaction was recorded or not. Though of course that might affect its weight, credibility or reliability.