R v Tabbah; R v Tiriaki

Relevance 8Only relevant evidence is admissible under the Evidence Act (see s 55 and s 56). That is evidence that, "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". 9The time that Mathew Hedges was shot is not precisely known. On the evidence received thus far, it was during the night on 31 December 2011, shortly before a 000 call was made at about 1.47 am. 10Later that day police attended the National Archive and with the assistance of Mr Stevens, the National Archive's facility manager, viewed the relevant CCTV footage. They were provided with a copy of part of the footage. More extensive footage was provided a few days later. The Crown sought to tender that part of the footage which shows two people running past the National Archive, coming from the direction of Mathew Hedges' home, on its case, a short time after he was shot. 11Detective Sergeant Browne's evidence on the voir dire was that he noticed that the monitor on which the footage was displayed had its own clock, which was different to the time displayed on his phone. He explained that: "It's generally one of the first things we do is to try and check the time on the recording device against our own clocks. It's quite common for there to be time drift with all digital clocks, and we try to correct that as soon as we can." 12Mr Stevens confirmed that he, too, had noticed that the time was inaccurate and that this had been briefly discussed, but he could not remember if it was running fast or slow. It was part of Chubb's three monthly service of the CCTV system to check the clock; that it had been serviced within three months; that before 31 December he had not noticed that the time was off; he only noticed it when Detective Sergeant Browne drew it to his attention that night. 13Detective Sergeant Browne's evidence as to the amount of the time difference was that it was: "Approximately four minutes. But we never had the ability to accurately work out what that time difference was. But somewhere in the order of four minutes. I can't say exactly what the seconds were on the monitor, or the seconds on my own phone, for that matter. But there was a four-minute difference." 14Detective Sergeant Browne recorded in his notes that the time was four minutes faster than the actual time. He had calculated this from the time taken from his telephone. His evidence was that he understood that his iPhone is subscribed to Telstra and its clock is continually updated to be accurate with Greenwich Mean Time; that he generally relied on this during investigations; but that he did not know for a fact that the time displayed on his phone was accurate, as he believed it to be. 15Detective Sergeant Browne's evidence was that Mr Stevens had some difficulty operating the system and from his observation, he understood that as he was navigating himself through that system, Mr Stevens had inadvertently reset the time. Mr Stevens' evidence was that he had not reset the time; he only had administrative access to the system, not access to reset the time. 16The case advanced for the accused was that the footage was inadmissible because the Crown was unable to prove the time at which the recording had taken place. In order to establish relevance, it had to establish that the images depicted in the CCTV footage were taken at a time which was soon after the events in question. The Crown could not do that because while the persons depicted were seen running at approximately 1.51am in the morning, on Detective Sergeant Browne's evidence that time was between 3 to 5 minutes out, as measured by his phone. When that was considered with his evidence that he could not say that what was displayed on his phone was accurate, it was apparent that the footage was not admissible. In the result the Crown could not establish that the footage depicted the perpetrators and so the footage was inadmissible. 17Those submissions could not be accepted. The CCTV footage was relevant and admissible. If accepted, the footage could rationally affect the assessment of the probability of the existence of a fact in issue. 18There is evidence that a neighbour heard someone running in the direction of the National Archive, shortly after the shooting. While the evidence is incapable of establishing exactly when the footage showing two people running past the National Archive was recorded, it is capable of establishing that the images were recorded at a time in close proximity to Mathew Hedges being shot. 19The footage is one of the pieces of circumstantial evidence on which the Crown seeks to rely to establish its case. The reliability of the evidence and whether it should be accepted, is in issue. That is a matter for the jury. 20Whether, given the difficulty of establishing the precise time that the footage recorded two people running past the National Archive, the jury will accept that the Crown has established, on the balance of probabilities, that it is the perpetrators who are there to be seen, as the Crown contends, is for the jury to determine.

Section 137 of the Evidence Act 1995 21The section provides: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 22Probative value is defined in the Dictionary to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 23The section requires consideration to be given to whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. It is not the Court's task to determine whether the jury would in fact find the evidence to be probative. The focus must be on what is open to the jury to conclude (see R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [59] - [67].) 24The section requires the Court to engage in a balancing exercise, weighing the probative value of the evidence against its prejudicial effect. It is only when the probative value of the evidence is outweighed by the "danger of unfair prejudice" that its admission must be refused. 25It is not all evidence prejudicial to an accused which must be excluded under the section. That receipt of particular evidence makes it more likely that an accused will be convicted does not of itself establish unfair prejudice (see R v Yates [2002] NSWCCA 520). As discussed in R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317: "30 Section 137 requires the exclusion in criminal proceedings of evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The key term is "unfair prejudice" in the sense of evidence creating "a real risk that the evidence will be misused by the jury in some unfair way" (R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL. See also Papakosmas v The Queen (1999) 196 CLR 297 at 325-6, Ordukaya v Hicks [2000] NSWCA 180, R v Lisoff [1999] NSWCCA 364 at [52], Toki (2000) 116 A Crim R 536 at 548). Merely because evidence points overwhelmingly to guilt does not make it unfair to adduce it. And even if evidence carries a prejudicial overlay its genuine probative value must be put in the scales." 26The case advanced for the accused was that not only could evidence not establish when the events depicted in the footage occurred, the footage was of poor quality and not capable of providing any identifying information, such as the height of the persons running by, their sex, or even the colours of their garments. All that it displayed, at best, was that one garment was lighter than another. Given those problems and the problem as to timing of the recording, its probative value was greatly diminished. 27In my assessment, despite these issues, the footage did have probative value. If accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue. 28There was already evidence that a neighbour heard someone running by from Mathew Hedges' home in the direction of the National Archive, shortly after the shots were fired. The footage shows two people running past the National Archive, having come from the direction of Mathew Hedges' home. On the evidence it would be open to the jury to conclude that this footage was recorded shortly after the shooting and that it depicted the assailants. 29The footage is one of the pieces of circumstantial evidence on which the Crown seeks to rely to prove its case. On its own it is incapable of establishing the guilt of either accused. In that sense, its probative value is not high, but nor is the prejudicial effect of its receipt. The footage takes greater significance, given the part which it plays in the case which the Crown advances on the basis of that and other circumstantial evidence, which together, it submits, establishes its case. That also heightens the potential prejudicial effect of its receipt. 30In order for the footage to be excluded, it must be shown that there is a danger of unfair prejudice in its receipt, which outweighs its probative value. That was not established. 31To establish unfair prejudice the accused relied on the same matters on which it submitted that the evidence was not admissible and of limited probative value. The unfair prejudice was submitted to be the possibility that a false issue would be raised in the minds of the jury, in circumstances where the prosecution was unable to establish that the footage was from a relevant point in time. The false issue was submitted to be that the footage did not in fact depict a relevant time period, but the jury might nevertheless take it into account and conclude that there were two assailants who ran from that direction. 32It is a matter for the jury to assess the reliability of the evidence and whether or not it supports the Crown's circumstantial case. Issues as to the quality and timing of the footage are matters about which the jury can be addressed by the parties. The jury will receive directions as to how the evidence should be assessed and the submissions it receives should be considered. There is no reason to suppose that in this case the jury will not adhere to those directions, or give this evidence undue weight. 33That the jury might conclude that the footage depicted the two assailants and thus is a piece of circumstantial evidence which supports the Crown case, does not lead to the conclusion that the jury would be diverted by a false issue. Nor does the possibility that the jury will conclude that the evidence is unreliable, lead to that conclusion. 34The jury will be directed that it must assess the reliability of the evidence. If it does not consider that the footage depicts the assailants, as the Crown contends, then it will be evidence which does not support the Crown case. In that event the footage will be a piece of evidence which would not be taken into account in determining whether the Crown's circumstantial case has been established against the two accused. It is only if it is concluded that the footage depicts the assailants, that it would be taken into account in deciding whether the Crown has established its circumstantial case. 35In the result it simply could not be concluded that the probative value of the footage was outweighed by the danger of unfair prejudice to the accused and so the objection to its receipt was rejected.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2014