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District Court 28 August 2020

Moffitt v R

[2020] NSWDC 486

Fraud & dishonestyTheft & property
APPEALS DISTRICT COURT NATURE OF APPEAL APPEAL BY REHEARING ERROR OF LAW ADMISSIBILITY OF EVIDENCE CRIME

Citation: Moffitt v R [2020] NSWDC 486
Court: District Court of New South Wales
Date: 28 August 2020
Judge: Haesler SC DCJ

Background

The appellant was convicted in Wollongong Local Court of dishonestly obtaining a benefit by deception under s 192E(1)(a) of the Crimes Act 1900, arising from an incident on 28 July 2018. On that date, a woman exited a car at a Caltex service station in Gerringong, pumped approximately 46.5 litres of petrol worth $73.44, re-entered the vehicle, and left without paying.

The car's registration was traced to the appellant. About a week later, police stopped her driving the same vehicle, arrested her on an unrelated drug matter, and took her to Lake Illawarra Police Station. There, officers questioned her about the petrol incident, administered a formal notice of demand under s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), and obtained verbal and written admissions. None of this questioning was audio or video recorded.

At the Local Court defended hearing, the defence objected to the admissions on the basis that s 281 of the Criminal Procedure Act 1986 (CPA) required them to be electronically recorded. The Magistrate rejected that objection, admitted the evidence, and convicted the appellant. The appellant then appealed to the District Court.

  • Whether the District Court, on rehearing, was required to find error before conducting its own review, or could simply re-examine the evidence afresh.
  • Whether the oral admissions made at the police station were admissible, given s 281 CPA requires audio (or audio-visual) recording of admissions relating to certain indictable offences.
  • Whether the LEPRA s 14 notice of demand, and the appellant's responses to it, were also subject to the s 281 CPA recording requirement and thus inadmissible.
  • Whether, absent the admissions, the remaining evidence (primarily CCTV footage) was sufficient to prove the charge beyond reasonable doubt.
  • Whether the CCTV footage provided reliable visual identification of the appellant as the woman at the bowser.

Decision

Nature of the appeal and the rehearing. Haesler SC DCJ confirmed the District Court's power on appeal is to rehear the matter on the evidence given in the Local Court proceedings. The Court drew its own inferences from that evidence, including making its own assessment of admissibility, and noted it was not necessary to resolve the question of whether error must be identified before conducting the rehearing, given both parties agreed all material before the Magistrate should be put to the District Court.

Exclusion of the admissions under s 281 CPA. Section 281 CPA requires that admissions relating to indictable offences (other than those that can be dealt with summarily without the accused's consent) be audio, or audio and visually, recorded. The offence under s 192E(1)(a) falls within Schedule 1, Table 1 of the CPA, meaning it is an offence tried summarily only with the accused's consent. The Court found that all questioning of the appellant following the caution constituted admissions, and those admissions were neither audio nor visually recorded. No reasonable excuse was offered for the failure to record. Accordingly, the oral admissions were excluded.

The LEPRA Form of Demand. The Court held that the written Form of Demand and the answers recorded on it were also inadmissible. While s 85 of the Evidence Act 1995 might otherwise be satisfied because the admissions were recorded in writing, the document nonetheless fell foul of s 281 CPA. Section 85 did not save the evidence.

Identification and the remaining CCTV evidence. The Court viewed the CCTV footage and also observed the appellant in court, as permitted under the principles in Smith v The Queen (2001) 206 CLR 650. It found it could not conclude that the woman on the CCTV was the appellant. In the absence of admissible admissions, the CCTV footage alone did not exclude hypotheses consistent with innocence. The Court noted that nothing in the woman's conduct at the bowser was obviously furtive, and a person could honestly pump petrol only to have a driver depart before payment was possible. There was also no admissible evidence establishing that the appellant owned or drove the vehicle on the day in question.

Orders Made

  • The appeal was upheld.
  • The conviction and all other orders made by the Magistrate were set aside.

Key Takeaways

  • Under s 281 of the Criminal Procedure Act 1986, admissions relating to Table 1 indictable offences (those requiring the accused's consent for summary determination) must be audio or audio-visually recorded; where they are not, and no reasonable excuse exists, they are inadmissible.
  • A LEPRA s 14 notice of demand and the responses recorded on it are not shielded from s 281 CPA by s 85 of the Evidence Act 1995: the recording requirement applies regardless of whether admissions were committed to writing.
  • Visual identification from CCTV footage, assessed by comparison with the accused in court, requires appropriate caution; the District Court here declined to make a positive identification where the footage did not clearly establish the accused as the person depicted.
  • Absent admissible admissions, circumstantial evidence of a drive-off petrol theft must exclude all hypotheses consistent with innocence; conduct that is consistent with honest mistake does not meet that standard.
  • The District Court confirmed it may draw its own inferences from Local Court evidence on rehearing, and its assessment of admissibility and fact may differ from the Magistrate's findings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19, 20
- Criminal Procedure Act 1986 (NSW), s 281; Schedule 1, Table 1
- Evidence Act 1995 (NSW), s 85
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14, 15

Cases:
- Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
- Charara v The Queen (2006) 164 A Crim R 39
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
- Gianoutis v Glykis (2006) 65 NSWLR 539
- Dyason v Butterworth [2015] NSWCA 52
- Director of Public Prosecutions v AG [2015] NSWCA 218
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32
- Kelly v The Queen [2004] HCA 12; (2004) 219 CLR 216
- NSW v Robinson [2019] HCA 46
- Edwards v Ddin (1976) Crim App R 218