Goldberg v Howells [2003] VSC 414

"1. Why the Defendant has been prevented to introduce the video evidence by the Court. 2. Why Her Honour Judge Cohen allowed the Plaintiff witness to remain in the Court during the hearing of the Defendant appeal and therefore denied the appellant natural justice by refusing his application for all witnesses to be removed from the courtroom during the hearing. 3. Why Her Honour Judge Cohen failed to give the Defendant benefit of the doubt on the evidence presented before the Court and dismissed the charge."

3 The first matter raised is that the plaintiff was refused permission to tender video evidence which he claimed would prove that what the two police officers were saying against him was incorrect.

4 While this issue was raised in the originating motion when it was filed, it was not then supported by any affidavit material. The absence of such material was addressed by the plaintiff in an affidavit sworn by him on 26 June 2003. He stated in that affidavit that he had intended to present video evidence that would show that what the two officers were saying was not correct. He further stated that security staff prevented him taking the video camera into the courtroom. He then deposed as follows;

"5. I told them that I am due for the court appearance and I need the video evidence in order to proceed with my appeal. They contacted the person who I believed was an Associate of the Judge hearing my appeal on that day. After a lengthy discussion with that lady and her contacting I believe the Judge on and off, I was told by her that the Judge hearing my appeal has decided that she will not allow me to introduce my video evidence before her. 6. It was clear to me that the Judge is not interested to see all of my evidence in this case I will have no chance of receiving a fair hearing and I did not receive such hearing. It was obvious to me that such decision for the hearing made by the Judge denied my right and privilege to Natural Justice. How on earth the Defendant can defend himself against accusation if he is not allowed to present all evidence in his defence for the court?"

5 The plaintiff did not exhibit the video evidence to his affidavit. The affidavit also did not explain how that evidence would have been relied upon by him to challenge the evidence of the two police officers. These issues were raised with him in the present hearing. He was given the opportunity to tender the videotape and the proceeding was adjourned for that purpose.

6 As to its relevance, he initially submitted on the first day of this hearing that it revealed that

* the police were incorrect in their assertion that they travelled only a short distance and for a short time before stopping the plaintiff in his vehicle, and

* that the police could not have observed him fail to stop if they were positioned where they claimed they were.

7 As I understand his argument, the relevance of the first point was that he claimed that the delay and distance travelled supported his case that the police stopped him, not because he had failed to stop, but because they obtained information while following him, which was incorrect, that he was not licensed.

8 In the course of his oral submissions on the first day of hearing in this Court, he repeated the above affidavit account. But he added to that account in further submissions on that day. He stated that he was in fact allowed to take the video and the camera into the courtroom and specifically discussed the issue of its use with Her Honour before the case started. He asserted that once it was established that the Court did not have the equipment needed to show the video tape, it being a Video 8 tape, "that was the end of the story". He also stated that the question of an adjournment was discussed and he was warned of possible cost implications. He also submitted that from what Her Honour said, she gave the impression that she would not have let in evidence of the video in any event. Thus the case on the issue was significantly changed.

9 At the resumed hearing, he produced a videotape and gave evidence. He said that most of the original videotape had been erased by being reused and that he had attempted, during the adjournment, to recreate what was contained in the original videotape. He said further that the original videotape had filmed the view from the passenger seat as the car drove north in Ulupna Street, crossed Liela Street (where the alleged offence occurred) and continued on to Oakleigh Street where he turned right and drove on to the point where he was stopped. He stated that the original videotape did not show the view of the intersection from the place where the police claimed to have observed him. He also stated that the video he wished to tender recreated what was on the original videotape but also included videotape of the view of the intersection from the place where the police claimed to have observed him.

10 He also gave evidence that there was discussion with the Judge about the videotape. He was vague and evasive about where the matter was left in that discussion. He tried to suggest that in some way Her Honour had effectively prevented him using the videotape but was not able to be specific about it. At the same time, he said in evidence that when the matter was discussed he had the video camera in court and that it was possible using the camera to view what was on the videotape.

11 Due allowance must be made for the fact that the plaintiff is not a lawyer. But the plaintiff has shown in his conduct of his defence, his appeal and this application that he is not someone easily intimidated by the legal system and that he has the ability to understand the issues in the case and the role of evidence in the proceedings. In the course of his evidence it also emerged that he had had extensive experience of both civil and criminal proceedings prior to the hearing of the charge in this matter.

12 The history of the changing allegations relating to the attempts to use the videotape and what was on it and the unsatisfactory evidence about those matters destroys his credibility on the issue. I note also that there is no satisfactory explanation for his failure to exhibit the videotape to his affidavit or his initial failure to seek to tender it at this hearing. There is also no satisfactory explanation offered for his failure to depose in his affidavit to the above alleged discussion with the Judge about the videotape. He was vague and evasive in his evidence about it. That evidence should be rejected as should his evidence about the alleged discussions with Her Honour's Associate.

13 But the plaintiff faces a further difficulty. In his evidence before me he conceded that the original videotape was relevant only to the issue of the distance and time travelled from the intersection of Ulupna Street and Liela Street to where he and his car was stopped. Having viewed the videotape, it does no more than confirm the evidence given about the route and distances and shows that they travelled for a time that could be described as short. It would not have added in any material way to consideration of that evidence and the issues in the case. I note also that the footage on the newly created videotape which shows a view of the intersection from where the plaintiff claims the police were watching the intersection clearly shows that the police had an excellent view of the intersection and the white line at which the plaintiff should have stopped his vehicle. If it had been included in the original videotape, as the plaintiff appeared initially and inaccurately to allege, it would only have damaged his case.

14 For the foregoing reasons, I am not persuaded that the plaintiff was denied the opportunity to present video evidence or that, if he was, it could have had any material impact on the result.

15 I turn to the second allegation that plaintiff was denied natural Justice because Her Honour allowed prosecution witnesses to remain in the Court during the hearing of the complaint. It is necessary to consider what occurred before the County Court.

16 The prosecutor at the outset of the proceeding indicated that he would call two witnesses - the informant, Mr Howells, and the corroborator, Mr Shaw. When Mr Shaw was called to give evidence, he stated that he had sat in Court and heard the evidence of Mr Howells. At that point, the plaintiff in effect objected, complaining that he did not know that Mr Shaw was going to give evidence or that he was listening to the evidence and cross-examination of Mr Howells. He argued that Mr Shaw should have been outside the Court until called upon to give his evidence.

17 Her Honour stated that the prosecutor had indicated that he was going to call the informant and a corroborator and referred to the practice of having the corroborator sit in Court to hear what is said in evidence so that it does not have to be repeated in every detail if the corroborator agrees with it. She said to him that it was up to him to indicate that he did not want other witnesses in Court at the time. The plaintiff said that from his memory of previous experience, witnesses sat outside the courtroom and were called into Court to give their evidence when needed. Her Honour responded saying that the situation was that this witness was in Court and had heard the evidence. She stated that she was aware of that and could make what she did of it. The plaintiff then responded "Okay, thank you." Mr Shaw then gave his evidence.

18 I am satisfied that the plaintiff was aware that two witnesses were to be called. He had an opportunity to ask that the second witness remain outside the courtroom but failed to do so before it was too late. His objection revealed that it was an issue he had in his mind. It was an issue for him to raise and not an issue for the informant or the judge to anticipate. It having arisen when it did, Her Honour properly indicated to the plaintiff that she would take into account in assessing Mr Shaw's evidence the fact that he was present when the informant gave evidence and was cross-examined. At that point, the plaintiff indicated his acceptance of that solution. I am not persuaded in all the circumstances that there was a denial of natural justice on this aspect. Rather, a fair hearing was given.

19 The nature of proceedings for judicial review imposes constraints on the scope of the plaintiff's arguments in relation to the third issue. In challenging Her Honour's decision on the stated basis the plaintiff must argue that there was an error of law on the face of the record. The record, however, is the order made and the transcript of the reasons of Her Honour. They reveal no error. The plaintiff seeks to rely on the transcript of the evidence and argument before Her Honour but that is not part of the record. If that analysis is incorrect and the whole of the transcript should be regarded as part of the record, I am not persuaded, in any event, that any error was shown. It was plainly open to Her Honour, on the evidence before her, to have no reasonable doubt about the guilt of the plaintiff on the charge in question.

20 For the foregoing reasons, the plaintiff has failed to make out his case. His application should be dismissed.