R v Lam

Supreme Court of Victoria|2005-02-01|Before: Redlich J

Evidence - Video recording - Circumstantial identification evidence relating to motor vehicle via surveillance camera - Video evidence of poor quality - Admissibility - Discretion to exclude - Likely exposure of any deficiencies in the evidence-whether risk of video evidence being given undue weight or leading to false or misleading conclusions.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 Application is made on behalf of Long Thanh Tran to exclude evidence taken from two video cameras outside the Salt Nightclub between 2.47 a.m. and 2.57 a.m. on 8 July 2002 which the Crown submits captures Long Tanh Tran's vehicle being parked outside the nightclub.

Videotape evidence and the risk of over-persuasion

2 The admission of video evidence taken from surveillance cameras is now commonplace.[1] Video evidence is highly persuasive because of the perception as to its reliability. Jurors will regard themselves as competent to interpret video evidence. Consequently there is a danger of uncritical acceptance by the jury when video evidence is employed. A jury may be persuaded that what the prosecution claims is clearly shown on the tape and give insufficient weight to contradictory evidence in more traditional forms.[2]

3 The discretion to exclude evidence will arise when it has been shown that the reception of the evidence will be unfair to the accused. In Ruling One[3] in the present trial I considered the relationship between the scope of the general discretion to exclude evidence which would be unfair to the accused and the "Christie" discretion to exclude evidence where its probative value was outweighed by its prejudicial effect. The degree of risk that the jury will attach more weight to such video evidence than is warranted in the circumstances will generally have to be assessed when reliance is placed upon the "Christie" discretion.

4 It may be accepted in the present case that the quality of the evidence is poor and does not reveal the make, model or colour of the vehicle. The video is not a continuous picture. There is some unknown interval of time which may be as much as a few seconds between each picture frame. The Crown concedes that the video does not enable any identification to be made of the vehicle or those who were using it. It is not in dispute that the video does not reveal the whole of the area in question. What the video shows is a vehicle driven to a spot adjacent to a garage roller door where it is parked. Later, persons are observable walking to the rear of the vehicle and the boot can be seen to be opened. The men are seen to return to the vicinity of the front of the nightclub and the vehicle is subsequently driven away. The time that each of these events occur is recorded on the video.

5 Mr Mullaly, on behalf of Long Thanh Tran, submits that I should exercise the discretion to exclude this evidence because it is conducive to the drawing of false or misleading conclusions. Any probative effect of the evidence is said to be outweighed by its unfair prejudicial effect. Reliance is placed upon the judgment of Ormiston J in R v Harris[4] (No. 3) and passages from the judgment of McHugh J in Festa v R[5]. In substance it is contended that the jury is likely to give greater weight to the video evidence than it deserves.

6 In Harris Ormiston J excluded evidence of voice identification because there was so much suggestive prejudicial material involved in the voice identification that could not be removed by cross-examination. It was the "means adopted" in making the voice identification which was unsatisfactory, so that the identification may have "irrationally impressed" the jury and led to a wrong conclusion.

7 The video evidence does not directly implicate the accused in the crime. It is proof of a circumstance that, with other evidence, may establish that it was Long Thanh Tran's car. This fact, in conjunction with what the two men are observed to do on the video and other circumstantial evidence, may support the conclusion that the accused was complicit in the crime charged.

8 A recent example of the proper admission of surveillance video evidence is that of R v Arden.[6] In that case the Court of Appeal rejected the contention that the trial judge ought not to have admitted surveillance video into evidence because the quality of the video was unsatisfactory and incapable of providing identification evidence upon which a jury could safely act. The Court of Appeal did not consider that the video was relied upon to prove identification of the appellant. It was one item in a range of evidence upon which the jury could reach a conclusion that the appellant must have been one of those depicted in it.

9 Some of the issues in that case are not dissimilar to those in the present one. The video provided the approximate time of the attack. The account given by the applicant to investigators meant that even if the jury could not positively identify the applicant from the video, they could, by using his account and the video, conclude that the journey he described must have been the same as the one the complainants described.

10 Eames JA delivering the judgment of the Court concluded:

"Accordingly, the video tape and photos were relevant in a number of ways in proof of the Crown case and that evidence was properly admitted by the judge. Ground 1 has no substance. Even if this was, strictly speaking, an identification case the video tape would have been admissible notwithstanding that it did not provide a positive identification and had only slight probative value. Such evidence would be admissible in an identification case where it was to be taken together with other admissible evidence, and the weight which might be given to the evidence was a matter for the jury: see Festa v R......."[7]

11 The Crown relies upon a body of circumstantial evidence, the cogency of which I cannot presently assess, which it submits establishes that the car was the accused, Long Thanh Tran's car. Mr Mullaly submits that the circumstantial evidence is weak and inconclusive. He points to aspects of the accounts of different witnesses relating to such things as the make, model and colour of the car in the video, and differences as to what the two men who went to the car were observed to do. He submits that these observations by various witnesses are not consistent with the prosecution contention that the vehicle shown in the vehicle is that of Long Thanh Tran.

12 I assume for present purposes that the evidence is not all consistent with the prosecution hypothesis and that the evidence should be characterised as weak. Such factors would not alone provide a sufficient basis for the exclusion of the evidence.[8]

13 If there are circumstances which may make the video evidence weak, unreliable or misleading, the question is whether those circumstances would be adequately exposed for the jury's consideration, bearing in mind that to exclude such probative evidence would interfere with one of the most integral of the jury's functions which, properly instructed, they are capable of performing.

14 The need to avoid usurping the function of the jury must be kept steadfastly in mind.[9] As the Court of Appeal observed in Rozenes v Beljajev:

"The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge's directions concerning the considerations, both general and particular, affecting its reliability ..."[10]

15 I am not satisfied that the admission of the evidence would create a perceptible risk of miscarriage of justice that cannot be adequately dealt with by appropriate directions.

16 The issue that will squarely be raised in this trial is whether the combination of the video and other circumstantial evidence enables the jury to find that the car was Long Thanh Tran's car. The jury will undoubtedly understand that the video does not provide a complete view of the area and will consider whether that limitation in view affects the conclusions which can be drawn from the circumstantial evidence. The events as shown in the video, the time at which various events occurred, the observations of various witnesses and the account given by Long Thanh Tran in his interview, all bear upon whether the jury may be satisfied that it was Long Thanh Tran's vehicle. Those factors upon which Mr Mullaly relies as making the video and circumstantial evidence weak and inconclusive will all be exposed before the jury who will be well placed to assess the overall effect of the evidence.

17 The vehicle is seen to be driven to a spot at a time which the jury might conclude matches the time at which and place where Long Thanh Tran claims he parked his car. No other car appears to be driven to, and parked in, that area within that same period of time. The vehicle is seen to be driven away at a time which may match the time that Long Thanh Tran claims he drove his vehicle away. The prosecution thus submits that the evidence may support the conclusion that the vehicle shown in the video is Long Thanh Tran's.

18 I am unable to detect anything in the video or the evidence that bears upon it that is likely to be misleading. The means by which the prosecution will seek to establish the identity of the car has no inherently dangerous or unreliable quality. Any deficiencies in the circumstantial evidence will be explored. There is no substance in the claim that the jury is likely to attach greater weight to the video than it deserves.

19 In my view no basis has been made out for the exclusion of the evidence.

[1] Kajola v Noble (1982) 75 Cr App R 149; R v Cook [1998] NTSC 125; (1998) 130 NTR 28; Police v Dorizzi (2002) 84 SASR 403; Mundarra Doolan Smith v R [2001] HCA 50; (2001) 206 CLR 650; R v Hassan [2004] VSC 84; R v Arden [2004] VSCA 131; R v Audsley [2004] VSCA 221.

[2] Elliott, D.W., (1998), 'Video-Tape Evidence: The Risk of Over-Persuasion', Criminal Law Review 159.

[3] [2004] VSCA 419.

[4] [1990] VicRp 28; [1990] VR 310 at 319.

[5] [2001] HCA 72; (2001) 208 CLR 593 at 609 at [48]-[51].

[6] See Footnote 1.

[7] Footnote 5 Festa v R at [49].

[8] Footnote 5 Festa v R per Gleeson CJ at [14] and McHugh J at [52].

[9] Rozenes QC and the Director of Public Prosecutions (Victoria) v Beljajev & Ors [1995] VicRp 34; [1995] 1 VR 533; R v Lobban [2000] SASC 48; (2000) 77 SASR 24 at 48.

[10] Footnote 9 Rozenes & Anor v Beljajev & Ors at 554.

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Judgment (9 paragraphs)

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Cases Cited (4)