R v Pham [2008] VSCA 41

40 The applicant still refused, so Mr Rodda 'grabbed hold of him by his jumper, by his left sleeve.' The applicant still refused to come back to the store and said to Mr Rodda that he was 'going to go straight over to the police station'. They crossed Church Street, Richmond, together and as they did so the applicant:**

removed the items with his left hand from under his jumper and placed them into one of the shopping bags he was carrying. We got across the road and he started to struggle with me and ... I restrained him by holding his arm behind his back ...

When they arrived at the police station, the applicant was placed under arrest.

**41 The applicant cross-examined Mr Rodda about whether there was video surveillance in operation at the supermarket at the time. Mr Rodda was unaware of how many cameras were in the store. He said, 'I don't work the cameras, I work the actual floor. The cameras are there for backup evidence.' Mr Rodda explained that he had gone back to check the video footage but the aisles in question were not covered by cameras, so there was no footage to be obtained.

42 When it was suggested to Mr Rodda in cross-examination that, if the applicant put five blank CDs under his jumper he would 'look like a pregnant woman', Mr Rodda answered, 'I don't think so. The jumper was quite bulky ... It concealed them quite easily.' He went on:**

I don't know whether you tucked your jumper into your pants a bit. That's generally how it's done. But that's a common way of concealing items with people that are shoplifting. They quite often conceal them just into their clothing, tuck it into their pants, in behind a shirt, a jacket, even just tucked underneath their arm.

When asked by the applicant whether he had checked the video, Mr Rodda said:

I didn't need to check the video. I watched you stick them under your jumper from the end of the aisle where I was observing. You were only metres away from me at the time.

**43 The second witness on count 3 was Senior Constable Rebecca Barrett. She was on duty at the police station when Mr Rodda and the applicant arrived. She gave evidence that the applicant 'appeared to be physically abusive and verbally abusive.' The applicant cross-examined Senior Constable Barrett about video surveillance in and around the police station. Senior Constable Barrett said that the video footage of the applicant's arrival at the police station 'was unable to be saved'. Nothing turns on this, as events at the police station were irrelevant to the theft charge.

44 The final witness was Constable Robert Spillane, who came into the police station after the applicant had been arrested. After speaking to Constable Barrett and Mr Rodda, Constable Spillane conducted a tape-recorded interview with the applicant. The tape recording of the interview was played to the jury. Under cross-examination, Constable Spillane confirmed that the applicant at the time mentioned that he had been assaulted by Mr Rodda. When pressed by the applicant, Constable Spillane stated that his view was that there had been no assault. He was satisfied that Mr Rodda had been within his rights to restrain the applicant after arresting him.

45 The prosecutor then closed the Crown case. The applicant informed the judge in the absence of the jury that he pleaded not guilty and did not propose to give evidence or call any witnesses. It was then agreed that the case should be adjourned until the following day, to enable both sides to prepare their final arguments.**

46 The applicant submits that the guilty verdict returned by the jury was not open on the evidence. Under cover of that general submission, he raises a number of particular complaints, many of which have already been dealt with. In addition, he contends that:

• the judge failed to give the jury the correct instructions;
• the judge continuously 'changed the goalpost (sic)';
• failed to instruct the jury to consider 'the high standards of beyond a reasonable doubt';
• should have allowed the police 'to reveal to the jury the police procedures and protocol'.

47 These contentions are without foundation. The judge's charge to the jury was clear and accurate and entirely fair. As to the standard of proof required, his Honour said:

In criminal trials such as this the onus or obligation is not on the accused person to prove or establish his innocence; he does not have to prove or disprove anything. Before you are entitled to convict the accused of these charges, the Crown must prove each element - and I underline the word 'element' - of any such charge to your satisfaction beyond reasonable doubt. Those words mean what they say. If after giving the matter careful consideration you feel you have a reasonable doubt about his guilt in respect of one or other or even both of the charges, then it is your duty to find him not guilty. However, if after careful consideration you feel you have no reasonable doubt about his guilt in respect of the charges or one or other of them, it is your duty to convict.

The direction could not have been clearer. Further, his Honour on several occasions gave the jury the requisite 'separate consideration' direction. For reasons already given, his Honour was entirely correct to limit the scope of the trial to the charges against the applicant and the evidence brought in support of those charges. Neither the applicant's apparent aggression when apprehended nor the extent of the force used to apprehend him was in issue.

48 One particular complaint now advanced concerns a topic raised by the applicant himself in his final address to the jury, when he said:

As you know when you walk into a supermarket, there are cameras, which means there is a contract between the shop and yourself, that you will be viewed and those cameras are there and available for you to have a look at, should any incidences be alleged. That is a contract between yourself and any supermarket that you walk into.

As I have said before, every time you go into Coles, there is a contract between yourself and the proprietor, that you do the right thing and that the cameras are there to protect them and to protect yourself.

49 The relevant part of his Honour's charge was in these terms:

Mr Pham suggested to you that there had been a total lack of care in the investigation of these matters, and he put it to you that there was a lack of evidence and in effect said to you, "Well, where are the items rather than the actual photographs?" He said to you on two occasions that there was some contract between people who go into a store and the store owner apparently to the effect that both you, as the customer, and they, as the store owner, have some pact whereby you are entitled to look at it. I think the clear inference that Mr Pham would have you make is that because there is no video, you could not be satisfied in either instance that the events took place, or certainly that the Crown could prove their case on each of the elements beyond reasonable doubt.

I must say here that I know of no such pact, as it were, between a customer and the store owner. Surveillance is installed by, I would have thought, a store owner to prevent shoplifting, deter it, and sometimes catch them, and people enter the store knowing that that is the case, but I do not know that it is any such contract or pact. But, anyway, it is a matter ultimately for you, but I should reiterate that the evidence is that there was no surveillance of any of these particular areas where the incidents took place.

**50 The applicant complains that in this passage the judge tried 'to influence the jury with his opinions of contracts between shoppers and storeowners'. The complaint is without substance. The judge was endeavouring - in fairness to the applicant - to identify the nature of the forensic assistance the applicant was seeking - or would have sought - to derive from video surveillance of the incidents. Nothing turned on the assertion by the applicant that the surveillance cameras were there to protect the customer. Doubtless, footage from a surveillance camera can operate in that way, for example, where it contradicts the eyewitness account of a store detective and thereby exculpates the person under suspicion. (In his first record of interview, the applicant expressed confidence that 'the video surveillance will get me out'.) But that was not the case here. There simply was no video record of the shoplifting incidents which gave rise to the charges. The applicant by his cross-examination clearly exposed that issue for the jury's consideration. By their verdict, the jury indicated that they did not consider that there was ambiguity in the evidence, as the applicant had contended.

51 The applicant also complains that the judge, having directed the jury more than once that the applicant did not have to prove anything, permitted the prosecutor to submit to the jury that he did have to prove his innocence. I have reviewed the transcript of the prosecutor's final address and the applicant's contention is based on a misunderstanding of what the prosecutor said. The only reference in the prosecutor's final address to steps which the applicant might have taken was a reference to the non-production of a receipt for the Playstation game the subject of count 1. As the prosecutor pointed out, the applicant had given the police, in the record of interview, a rather confused explanation of how he had come to have the game in his possession. He first said that he had himself bought it from a shop called Electronic Boutique. A little later in the interview, however, he said he thought that 'one of the family members' had bought it but that he had 'no idea' where it had been bought. He then went on to say that it was bought 'as a family gift. My task was to go to get some wrapping papers and wrap it up.' He declined to say which member of his family had given it to him. When asked whether the person who bought it was likely to have a receipt for it, the applicant answered, '[d]efinitely'.

52 In final address the prosecutor pointed out that, on the evidence, the applicant had produced no such receipt in the two and a half years between the incident and the trial:**

You would think that if you had access to [the receipt], it would be a simple matter ... You would think that if you could have disposed of this by producing the receipt for the articles that you had legitimately purchased, you would do so and you would do it at the first opportunity. But that opportunity never happened ...

This was the foundation of a submission that the jury should regard what the applicant had said in his interview as a fabrication. This was an entirely proper submission to make. It was a matter for the jury what view they formed of the account given by the applicant in the record of interview.

**53 In my opinion, the application for leave to appeal must be refused. None of the grounds has been made out. There was no miscarriage of justice. The trial was conducted fairly and without any sign of bias.

54 The case against the applicant on both counts was straightforward, and the eyewitness evidence was powerful. Indeed, the applicant's cross-examination of the Crown witnesses made little direct challenge to that evidence, being instead preoccupied with the issue of video surveillance. He was, of course, entitled to remain silent himself, but the effect of so doing was that the jury had only the**

**records of interview from which to discern his version of events.

55 Nor, contrary to the position which the applicant has maintained, does any question arise under the Commonwealth Constitution. There was no occasion for the service of notices under s 78B of the Judiciary Act 1903 (Cth).**

**57 I agree that the application for leave to appeal against the convictions should be dismissed for the reasons given by the President.

[1] Crimes Act 1958 s 353.

[2] See R v Basha (1989) 39 A Crim R 337.