REGINA v BEATTIE [2001] NSWCCA 502

Reported Decision : 127 A Crim R 250

New South Wales Court of Criminal Appeal

CITATION : REGINA v BEATTIE [2001] NSWCCA 502 FILE NUMBER(S) : CCA 60372/00 HEARING DATE(S) : 3 December 2001 JUDGMENT DATE : 7 December 2001

PARTIES : REGINA v John BEATTIE JUDGMENT OF : Mason P at 1; Sully J at 26; Levine J at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0312 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : Appellant: C Waterstreet Crown: R Hulme SOLICITORS : Appellant: Patricia White & Assoc Crown: S E O'Connor CATCHWORDS : Attempted escape - appeal against conviction - circumstantial evidence - whether appellant was prisoner who attempted to escape - Crown relied on evidence of three prison officers identifying appellant from security video - Mundarra Doolan Smith v The Queen [2001] HCA 50 - police witnesses in no better position than jurors to make relevant comparison - video tape missing since trial - Court unable to inform itself as to critical issue - new trial ordered. (ND) CASES CITED: Mundarra Doolan Smith v The Queen [2001] HCA 50 R v Gardner [2001] NSWCCA 381 DECISION : Appeal allowed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 60372/00 MASON P SULLY J LEVINE J

Friday 7 December 2001 REGINA v John BEATTIE

JUDGMENT 1 MASON P: The appellant was convicted after trial in the District Court before Judge Luland QC and a jury on the charge of attempted escape from Tamworth Correctional Centre on the morning of 22 March 1999. 2 At about 7am on that day prison officers discovered a rope over the eastern perimeter wall of the gaol. It was entangled in the razor wire and there was an electrical flex cord on the ground beneath the rope. On the far side of the wall on the outside of the gaol there was an old extension ladder tied to the other end of the rope. There was also a pair of heavy gloves on the ground as well as some oranges. 3 The Crown relied on circumstantial evidence that it was the appellant attempting to escape. The Crown also relied on the evidence of three prison officers who had known the appellant for a period of time and who recognised him as the person captured on the security video in the sterile zone of the gaol attempting to escape. The case went to the jury on the basis that they could convict on either or both bases of the Crown case. 4 The security video was not a moving picture. Rather it represented a series of photographs taken four seconds apart. The video showed a figure throwing something over the fence from the long yard at 5:40am According to the Crown, this was fruit and it was a signal to someone on the outside. The video also records a figure in the sterile zone in the area of the attempted escape between 6:13am and 6:19am. In each case the figure was dressed as a prisoner, not an officer. 5 It was the Crown case that the only two prisoners out of their cells at the relevant time were the appellant and a prisoner named McCreath. Officers gave evidence to the effect that all prisoners were locked into their cells the previous evening and that the appellant and McCreath were the only two who had been released during the relevant period. They had been released at about 5:30am to perform their duties as breakfast sweepers, ie the persons responsible for preparing breakfast for the prisoners and delivering it to their individual cells. 6 McCreath gave evidence for the Crown that he had not attempted escape. There was also evidence from prison officers to the effect that the man appearing in the video was definitely not McCreath. 7 The Crown also relied on evidence that the appellant had made telephone calls to his fiancée at 5.30 and 5:42am. The calls were very short but it was suggested that they were signals. 8 It was the Crown case that the flex cord found on the ground and beneath the rope came from an electric fan that belonged to the appellant. The suggestion was that the cord had been used in an attempt to dislodge the tangled rope attached to the ladder. The fan (minus the flex) was handed to officers by the appellant's cell-mate on the day after the attempted escape. 9 The issue at trial was whether the appellant was the prisoner who attempted to escape. 10 The particular grounds of appeal all relate in various ways to the evidence of three prison officers (officers Bennett, Norton and Solomons) which was broadly to the effect that they had identified the appellant in the surveillance video which they played back to themselves at the prison on the morning of the attempted escape and not long after the tell-tale signs of it had been discovered. They had used a video cassette recorder (VCR) capable of freezing a particular frame. 11 Very shortly after the jury were empanelled on the first day of the trial each officer was examined on the voir dire as to the circumstances of his identification of the appellant. There was some evidence to suggest that the tape's quality (which was not very good) differed from what the officers had viewed on the morning of the attempted escape. This may have been due to a different quality of VCR available at trial and at the prison. The addresses of counsel that day have not been recorded. 12 The following day a new VCR was obtained, being one which allowed the film to be wound through frame by frame in the way it had been when the three witnesses originally made their identification of the appellant. At that stage counsel for the appellant made the observation that this would serve to underline a difficulty to which he had been alluding the previous day, to the effect that the jury would be likely to think that the image that had been seen out of court by the officers must have been better than the one available to the jury. Counsel continued: