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This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Evidence Insufficient For Property Damage Conviction (ACT)


Two different views of the one piece of CCTV footage made all the difference in the 2020 ACT Supreme Court decision of Hall v Davis. In that case, the defendant was found guilty of property damage consisting of scratching a motor car and facing a maximum penalty of a fine of $160,000 and/or 10 years imprisonment. He appealed on the ground there was insufficient evidence to support the conviction.

Evidence considered on appeal

Magistrate Glenn Theakston was satisfied beyond a reasonable doubt that the scratch had been made by the gentleman charged. However, Justice Michael Elkaim saw things very differently when the man appealed to the ACT Supreme Court.

The evidence against the appellant was made up of the following items:

  • Three recordings of CCTV footage.
  • The concessions made by the gentleman that he was the person seen in the footage.
  • The evidence of the owner of the vehicle to the effect that the damage would have occurred within the two days before the events shown in the CCTV footage.
  • The presence of a scratch on the back of the vehicle, which could be seen in a photograph.

Supreme Court findings

“I was asked to view the CCTV footage which I did, both in its “normal” configuration and with the benefit of the zoom function,” the Judge concluded. “There is no doubt that the appellant walks past the rear of the vehicle. There is no doubt that he was at one stage in a position approximate to the area of the scratch.

“However, in my view, to go further than the above observations is to make a quantum leap that cannot be derived from the CCTV footage, either on its own or in combination with any of the other evidence in the case.

“I accept that the presence of the appellant at the rear of the vehicle gives rise to a suspicion. But of course, that is not enough. I also note that there was, in terms of time, significant opportunity for the offence to have been carried out by another person, noting the notorious prevalence of random ‘keying’ of vehicles in car parks.”

As His Honour noted, “It is often said that different persons viewing the same event will reach different conclusions.” However, the fact that the judge had a different view to Magistrate Theakston did not mean that his view prevailed. “If the Magistrate’s findings were open to him the appeal would fail,” Justice Elkaim found. “However, I am of the view that the findings made by the Magistrate, in particular his conclusions about what can be derived from the CCTV footage, were not open to him, to an extent that his conclusions have led to an unsafe and unsatisfactory result.”

The appellant was awarded his costs in running the contested hearing in the Magistrates Court.

Conclusion

This decision is a reminder of the importance of good representation in contested matters and the need to thoroughly interrogate the strength of each and every piece of evidence relied on by the prosecution. It calls to mind the old proverb, “Lawyers and painters can soon change white to black.”

If you have been found guilty of a matter and wish to appeal, like the gentleman above, you need specialist assistance. The team at Armstrong Legal Canberra deal only in criminal and traffic law.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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