Gadd v Middleton [2008] NTCA 4

[1]

The appellant appeals against a judgment of the Supreme Court dismissing his appeal against a conviction in the Darwin Court of Summary Jurisdiction that on 11 September 2006 at Darwin he "did steal various bottles of alcohol and cartons of beer, valued at $1000, the property of Woolworths Supermarket", contrary to s 210 Criminal Code NT for which he was fined $2000.

[2]

The principal ground of appeal argued was that the conviction is unsafe and unsatisfactory. The learned Judge on appeal, having undertaken the exercise of reviewing the whole of the evidence, concluded that the Crown case was a strong one. He said he did not experience any reasonable doubt as to the guilt of the appellant. We have reached a contrary view. In our view it was not open to the Magistrate to be satisfied beyond reasonable doubt that the accused was guilty of the crime charged.

[3]

The prosecution case was that the appellant was working as a security guard at the Woolworths Supermarket in Darwin city. One Lovett was employed by Woolworths in the liquor store. During the evening of 11 September 2006, while both Lovett and the appellant were working there, an agreement was made between them to steal a quantity of alcohol.

[4]

Lovett said in evidence that the alcohol was removed from the store in two lots. He said that pursuant to the agreement he put three bottles of alcohol into each of two green shopping bags and passed the bags over to the appellant who removed them from the store. The bottles were not scanned at the cash register. The alcohol was not paid for by Lovett or by the appellant.

[5]

Lovett said the appellant returned later and he and the appellant loaded more alcohol into a shopping trolley. Lovett said there were two cartons, one of beer and one of mixed alcoholic drinks with "just a few bottles on top" and "Another 12 bottles of spirits". Lovett said he then went to the back of the store, leaving the trolley in the possession of the appellant. When Lovett returned to the counter the trolley had gone. Lovett thereafter went about his business until closing time at 10 pm. Having completed his duties Lovett met the appellant outside the store as prearranged between them. The appellant drove Lovett home in the appellant's car. When they arrived at Lovett's residence Lovett took his share of alcohol out of the boot of the car and the appellant drove off with the rest.

[6]

On 15 September 2006 Police attended Lovett's residence and located 13 bottles of alcohol. None were located at the appellant's residence.

[7]

Unbeknown to either Lovett or the appellant the events that evening were recorded on a security camera which had recently been installed without their knowledge.

[8]

The prosecution case stood or fell entirely on the evidence of Lovett and the security video footage of the counter area of the Woolworths liquor store that evening.

[9]

Prior to the appellant's trial Lovett had pleaded guilty to stealing $800 worth of alcohol from Woolworths and was sentenced after undertaking to give evidence against the appellant for which he was given credit.

[10]

The learned Magistrate had reservations about Lovett's veracity as a witness. She found Lovett had not been truthful in at least two material parts of his evidence. First, she said his evidence that he did not recall whose idea it was to steal, whether his or that of the appellant, was not credible. She said "given his fairly young age" it was not believable that anyone in his situation could not remember whose idea it was. Other "of his evidence that beggars belief" was that it was Woolworths policy to allow him to leave the counter unattended for up to ten minutes at a time to deal with stock out the back of the store and to man the counter only when a customer was waiting to be served. "However, those issues", said the Magistrate "in my mind, do not detract from the fact that the video footage supports his (Lovett's) evidence, in that he packs alcohol in a bag and that the (appellant) took it out of the shop". The learned Magistrate went on to say

[11]

This Court viewed the relevant video footage at what was described as "normal" speed. It depicts events abnormally fleet. We also viewed certain sections of interest frame by frame. We were told the video was played at "normal" speed before the learned Magistrate who also viewed it privately when considering judgment. We do not know the manner of viewing of either the learned Magistrate in private or the learned Judge on appeal. It was submitted we should only consider the video footage at "normal" speed and that it would be unfair to the appellant if this Court viewed the video frame by frame such as to discover inculpatory matters. Given the way the case was conducted before the learned Magistrate we are of the opinion that our consideration of the video may be frame by frame but confined to conduct described by Lovett in evidence and not matters beyond that. The video evidence was tended as an exhibit without any qualification that it be viewed at any one particular speed only. However the Crown case as presented before the learned Magistrate was the case the appellant was required to meet and that was the evidence of Lovett and such support for it as might be had from the video footage.

[12]

In our view the video footage does not support a finding of guilt. Whilst one part of the video footage is capable of supporting Lovett's story that the appellant stole alcohol with Lovett's agreement, Lovett's evidence is tellingly contradicted by the better part of the video evidence.

[13]

The video does not show the appellant taking anything other than one green shopping bag out of the store. That bag has more than three bottles in it. Only one shopping trolley is pushed past the counter and removed from the store and that by a person other than the appellant. The video does not depict the contents of the trolley. Lovett did not suggest a third party was involved in the theft.

[14]

Lovett's evidence apart, there is no evidence of two green bags containing three bottles each leaving the premises; there is no evidence of a trolley containing alcohol leaving the premises; there is no evidence of cartons of beer leaving the premises; there is no evidence of the appellant participating in any of these activities.

[15]

Both the learned Magistrate and the learned Judge on appeal appear to have accepted the whole of Lovett's evidence inculpating the appellant. Far from Lovett's evidence being supported by the video evidence it is significantly contradicted by it. The stark contrast between Lovett's story and the video footage was not adverted to by either the learned Magistrate or the learned Judge on appeal.

[16]

As we have said, the video does show the appellant removing one bag handed to him by Lovett without paying for it. However that of itself, whilst capable of supporting Lovett's evidence of theft, in fact contradicts his account in the witness box. Evidence of the appellant's intention to steal depends on Lovett's evidence alone. Given the inconsistencies in Lovett's evidence, the lack of corroborative evidence, the contradictions of the video footage, that Lovett was an accomplice who had received an advantage for giving his evidence against the appellant, and the learned Magistrate's adverse findings as to Lovett's credit worthiness, it was in our opinion not open to the Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the crime charged.

[17]

The appeal should be allowed, the conviction and fine set aside and the information dismissed.

At a glance

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Judgment (8 paragraphs)

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