Mr Bodor, of Queen's Counsel, is cross-examining the plaintiff about the incident when the plaintiff says he was assaulted by Senior Constable Mildenhall. I have already received in evidence, as exhibits A and B, two versions, one enhanced, of CCTV footage that recorded the events occurring.
In the course of the cross-examination, Mr Bodor has shown the plaintiff two stills taken from the series of images which together constitute the CCTV footage and has put to him that the first one, captioned "Frame Two", shows the first point of contact between the plaintiff and Constable Mildenhall. The second one, entitled "Frame Three Enhanced", is said to show the plaintiff "squaring up" to the police officer with his right arm elevated below shoulder height in the action of commencing to throw a punch at the police officer.
I must say, looking at "Frame Three Enhanced", the right arm is barely discernible to me and, if anything, is somewhat blurred. I note that from what I can make out the police officer has got Mr Hamilton by his left arm which is flexed at the elbow somewhat above waist height.
Mr Steirn has objected to the tender. He argues that it has not been proved how these stills were produced; from what version of the CCTV footage; whether they have undergone any enhancement process; and if they have, what that process consists of. I understood this to be a point about authenticity.
In reply, Mr Bodor says that the plaintiff has agreed that these images depict him and Mr Mildenhall at the time the central events occurred. I am informed that Mr Mildenhall will certainly be called as a witness in the defendant's case, and I anticipate that he will be asked to say what he says these stills show. Naturally, that evidence will have to be assessed by me looking at the whole footage and deciding for myself, in the light of the evidence of the witnesses, what it records.
There cannot be any serious question that the stills form part of the records belonging to or kept by a business, being the security company I have heard evidence of, that provides security services at the building known as Grosvenor Place. There is no doubt that this business record contains a previous representation recorded in the document so that the hearsay rule does not apply to these documents, so far as they contain representations prepared by, I suppose, whoever set the camera in motion.
There is a certain artificiality in talking about preparation by a person who might be supposed to have had personal knowledge of the asserted fact as required by s 69 (2) Evidence Act 1995, given that this is an automatic process, but I think nonetheless that s 69 applies, and the document is prima facie admissible.
Section 48 (1)(e) permits a party to adduce evidence of the contents of a document in question by tendering the document by a number of different methods, one of which is tendering a document that forms part of the records kept by a business, and purports to be inter alia an extract from the document in question.
The touchstone of admissibility in a civil case is, of course, the question of relevance, and it seems to me that this material is relevant in the sense that, if it were accepted in due course that the photographs depict what the defendant says they depict, the photographs could rationally effect the assessment of the probability of the existence of a fact in issue in the proceedings.
That fact in issue in these proceedings is whether, in assaulting the plaintiff, as Constable Mildenhall seems to according to the evidence I have viewed so far, he was acting in self-defence in accordance with the provisions of s 52 of the Civil Liability Act 2002.
Accordingly, I admit the photographs as exhibit 10.1 and 10.2.
After I made the ruling I have just pronounced, Mr Steirn SC sought leave to make further submissions about why I should reject the tender. I granted that leave.
He said two things. First, that I was in error in admitting the two stills as a business record because these particular stills were prepared for the purpose of conducting an Australian proceeding in accordance with the provision of section 69(3)(a) Evidence Act. The particular Australian proceeding involved criminal prosecutions arising from the events of 12th December 2009, the subject of this civil case. I did not understand Mr Bodor to demur in that regard.
Secondly, Mr Steirn relied upon the provisions of s 135 Evidence Act relating to the general discretion of the Court to exclude evidence if its probative value, in this case, is substantially outweighed by the danger that the evidence might be misleading. The gravamen of that submission is that the CCTV footage of the events provide a continuous record within its technical limitations of what occurred and that printing-out a still, perhaps photo-shopping it, as I understand many people are adept at these days, might be misleading as to the true content of what the still depicts.
It is a feature of this case that both Mr Hamilton, from his evidence, and, Senior Constable Mildenhall, by what I apprehend he will say in his, have viewed this CCTV footage, probably understandably in human terms, over and over, and over again. It seems to me almost inevitable that in due course I will hear submissions from both contradicting counsel that the evidence of the other is substantially marred, if you like, by the element of reconstruction.
All witnesses, to some extent, reconstruct their evidence. It is a function of the trial process. So much was observed, I think, in R v Edwards & Anor [2009] HCA 20; 255 ALR 399 at [31]. That evidence consists of reconstruction does not make it inadmissible; but it may, or is generally taken to, affect its reliability. The provisions of s 108(3) of the Evidence Act 1995, I think, may be taken to be a statutory acknowledgment of that consideration.
It is very common in this Court, in both its criminal and civil jurisdictions, to receive evidence by way of CCTV footage. Almost everything which happens in public, or which occurs in places to which the public are admitted, in our major cities is recorded by closed circuit television cameras. On an almost daily basis, when the Courts in this State are dealing with events which have occurred in such places, CCTV footage, and sometimes a compilation of CCTV footage, is tendered. Often it provides the most persuasive evidence of what happened. It is also very common for a series of stills taken from that CCTV footage to be tendered. Very often the tender of the footage and the stills occurs without objection from opposing counsel.
This case is different because Mr Steirn has objected to the tender of the stills.
Given that it is common ground that these particular stills were selected as part of the process of Senior Constable Mildenhall preparing himself to give evidence in the prior criminal proceedings or, perhaps, for the purpose of giving evidence in these proceedings, I think I was wrong to rule that the documents were business records within the meaning of s 69 of the Act.
Now no doubt frequently documents are tendered in courts in the form of photocopies which have been made of original documents solely for the purpose of the litigation, and it might be thought that the business of litigation would grind to a halt if the best evidence rule, which has been abolished by s 51 Evidence Act, was indirectly resuscitated by objection being taken to the production of such photocopies. However that may be, when objection is taken it has to be ruled upon according to its legal merits, and I am of the view that what I had previously marked as exhibit 10 is not a business record because it represents stills created for the purpose of the case. That ruling means that the underlying hearsay objection is not overcome by the tender of the documents in this form.
Having said that, I in no way foreshadow what my ruling might be once Senior Constable Mildenhall is called to give oral testimony. I can see a number of ways in which the hearsay objection can readily be overcome once he is in the witness box giving evidence, but I in no way anticipate what my decision will be at that time if these documents are tendered again.
That being so, I think it is unnecessary to make a ruling on the objections so far as based on s 135. I only observe that s 135 might have limited utility in judge alone trials when any misuse of evidence is readily detectable and easily cured on appeal.
I revoke the ruling I previously made and I reject the tender of frame 2 and frame 3 enhanced. I direct that those documents be marked MFI 12.
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Decision last updated: 16 February 2015