R v Sinai [2021] NSWSC 776

Supreme Court New South Wales

Medium Neutral Citation: R v Sinai [2021] NSWSC 776 Hearing dates: 27 April 2021 Decision date: 28 April 2021 Jurisdiction: Common Law Before: R A Hulme J Decision: The re-creation videos of the movement of vehicles and of Mr Kelekolio on 23 January 2018 are admissible Catchwords: EVIDENCE – objection to evidence of police videos re-creating movements of vehicles and persons – where CCTV evidence difficult to understand without re-creation videos – where no real issue about the content of the re-creation videos – no unfair prejudice – re-creation videos are admissible Category: Procedural rulings Parties: Regina Abraham Sinai Representation: Counsel: Mr S Hughes (Crown) Ms C Davenport SC (Accused)

Solicitors: Solicitor for Public Prosecutions Kings Law Group File Number(s): 2019/169513

Judgment 1. HIS HONOUR: This case concerns the shooting murder of a solicitor, Mr Ho Ledinh, as he sat outside the Happy Cup Café on Bankstown City Plaza at about 3.35pm on 23 January 2018. 2. The Crown case is that Arthur Kelekolio was the shooter and Abraham Sinai was complicit because he was engaged in a joint criminal enterprise with Kelekolio to murder Mr Ledinh. 3. For present purposes it is only necessary to refer to those events which occurred on 23 January 2018 in the central business district of Bankstown just before and just after Mr Ledinh was shot. 4. The Crown alleges that Messrs Kelekolio and Sinai came to Bankstown in a Mitsubishi Lancer and Nissan Elgrand motor vehicle respectively. This was at about 2.45pm. Mr Sinai does not dispute that he was in the Elgrand. 5. The Elgrand was driven around the streets of Bankstown for quite some time. At one point it drove past the Happy Cup Café in Bankstown City Plaza. The Crown alleges this was a form of surveillance, to determine if Mr Ledinh was there, but Mr Sinai denies that. 6. The Crown alleges that at about 3.15pm, Messrs Kelekolio and Sinai met up in the vicinity of the intersection of Stanley and Leonard Streets. This is several blocks to the south-east of the Happy Cup Café. Mr Sinai gave things to Mr Kelekolio including a green jacket and a water bottle. 7. Mr Kelekolio proceeded on foot to Bankstown City Plaza and the vicinity of the Happy Cup Café. He put the green jacket on over his high-vis shirt along the way. In the meantime, Mr Sinai went in the Elgrand to East Terrace, which appears to be about 750m from the café to the east. The Elgrand was parked facing south against the eastern kerb and remained there. 8. Mr Kelekolio approached Mr Ledinh and shot him with a handgun at about 3.35pm. He then ran off, taking a route through various streets, laneways and arcades until he arrived in East Terrace. He was last seen there having crossed over to the eastern side and turned to the north. The Elgrand was parked what would appear to have been less than 50m ahead of him at the point he was last picked up by a CCTV camera. 9. The Crown Prosecutor informed me that the CCTV footage does not show Mr Kelekolio proceeding north past the point where the Elgrand was parked. (There was a camera outside a St Vincent de Paul shop that would have depicted that if it occurred.) The Elgrand departed its parked position at around this time. The Crown contends that the inescapable inference is that Mr Kelekolio met up with Mr Sinai and was driven away in the Elgrand. 10. The Crown case is that later that evening Mr Sinai got a person to drive him in the person's Holden Commodore to pick up Mr Kelekolio and take him back to Bankstown. The purpose of this was to enable Mr Kelekolio to collect his Lancer that remained parked somewhere near the intersection of Stanley and Leonard Streets. 11. In a busy city centre like Bankstown it is hardly surprising there was a proliferation of CCTV cameras. Police attended to the task of gathering the available footage of relevant events. The Crown proposes to tender the following (collectively, the CCTV material): A compilation of all of the relevant CCTV footage in chronological order ("the CCTV compilation"). A large bundle of still printouts from the CCTV footage ("the CCTV stills"). A summary of the CCTV footage with selected small still photographs and a text summary of times, location, what is depicted, and its relevance ("the CCTV summary"). A very large map showing the streets of Bankstown and the location of the various CCTV cameras ("the map") 1. None of this material is controversial. However, in September 2019 police recorded some videos that amount to re-creations of the routes taken by each of the three cars, the Lancer, the Elgrand and the Commodore, as well as by Mr Kelekolio. There is something like a dash cam video in a police car recording the routes of the vehicles and a police officer on foot with something like a body camera or GoPro style of camera recording the path taken by Mr Kelekolio. 2. Ms Davenport SC on behalf of Mr Sinai objected to the re-creation material being admitted into evidence. The essence of the objection was that the material did not add anything useful to what the jury would otherwise be receiving, and that the material was misleading in certain respects. For one thing, the re-creations were an attempt by police to "join the dots"; in other words, making assumptions about the movement of vehicles and Mr Kelekolio in between the points where they were detected by CCTV cameras. 3. The other aspect of the objection was that there had been a significant time lapse between the events in question and the re-creation videos being recorded. The scenes depicted may have undergone changes in the intervening period which would result in the jury being misled as to the prevailing conditions on the day in question. 4. Yesterday I received all of this material on the voir dire and, at the suggestion of the parties, adjourned to enable me to digest it in chambers. It took considerable time to do it carefully and methodically. Given the nature of the objection I first approached the task by attempting to assimilate the material in the way the jury might if it only received what was not the subject of objection. 5. That was a very laborious task. To work out where the images were recorded and the direction in which vehicles or Mr Kelekolio were moving required constantly pausing the CCTV compilation recording to look at the CCTV stills and then the map. Marrying up the compilation with the stills enables one to determine the camera number and then it is necessary to look at the map to see where that camera is. Referring to the CCTV summary was more helpful in one respect, but it still required reference to the map to understand the location. Whether using the CCTV stills or the CCTV summary, it sometimes remained difficult to understand the direction of movement of the vehicle/person. 6. The CCTV summary includes information as to the direction the relevant camera is facing, using points of the compass. If, for example, the footage shows a car travelling in Stanley Street, referring to the summary will indicate whether this was captured by a camera pointing north or south. The direction in which the car was travelling can then be deduced from whether it was travelling towards or away from the camera. The problem is it is still necessary to pause the CCTV compilation in order to refer to other material. 7. Another difficulty is that when a camera detects a car or person near an intersection it is difficult to determine whether the street the car or person is on is one or another of the streets that intersect. And if the car or person turns a corner, which street did they turn from and into? 8. The re-creation material takes the viewer through the movement of the vehicles and Mr Kelekolio throughout the period in question. Whilst the CCTV compilation material combines all of that material and presents it chronologically, the re-creation videos show the movements of each of the vehicles and Mr Kelekolio individually. 9. One aspect that is useful with the re-creation videos is that it has overlaid on the left side of the screen a map which shows the viewer the location and direction of travel of the car or person. This saves the viewer having constantly to pause and refer to the other material to understand these things. It makes abundantly clear what street the car or person is on and, if they make a turn at an intersection, what street they turned from and into. 10. Another way in which the re-creation videos will assist the jury is that they sometimes have overlaid on the right side of the screen relevant extracts from the CCTV compilation. 11. When the CCTV material is first shown to the jury in court there is expected to be a police officer assisting the jury's understanding by explaining what they are seeing. However, I expect the jury would likely want to see it for themselves in the jury room and they may find it as cumbersome and laborious as I found it. 12. One aspect of the objection is whether there has been any material change between 23 January 2018 and September 2019 when the recordings were made. There may be some changes in terms of street signage or lane markings or speed zones. There will be changes in terms of vegetation because the actual events occurred in the mid-summer and the re-creation recordings are made in early spring. In addition, it is apparent from the CCTV compilation that there were some buildings under construction in January 2018 but 20 months later they are further advanced in construction or had been completed. 13. It does not appear that any of those matters will impede the jury gaining a correct appreciation of what it is the material is intended to convey. The time it took a car or Mr Kelekolio to travel from one point to another is not in issue. It is where people and cars were at particular times in relation to the shooting of Mr Ledinh that is the issue. For example, how long Mr Kelekolio took to flee the scene of the shooting and to arrive in East Terrace is not an issue. The point is, on the Crown case, that he arrived in East Terrace where the Elgrand and Mr Sinai had been for some little time. Almost immediately after he arrived, he (apparently) and Mr Sinai departed in the Elgrand. 14. The jury will well understand that features of the locations will have changed to some extent in the intervening period. Any such changes will not distract them from a fair and balanced appreciation of what this evidence is intended to convey. 15. Another issue is whether the assumptions made by police as to movements between points where the car or person are depicted on the CCTV is too speculative and thereby misleading. As indicated earlier, Ms Davenport referred to this as the police "joining the dots". 16. My impression from viewing the CCTV material is that there are no large gaps in time between what is shown at one CCTV camera location and the next. In other words, there is not a lot of distance or time between "the dots". In indicated during submissions that this was my impression and I was not contradicted. 17. I appreciate that it was necessary for the police to make assumptions about where something was between when it was seen at "point A" and next seen at "point B". The gaps appear to be so relatively short that it was safe to assume the car or person took the most direct route from "A" to "B". Ms Davenport did not refer to any example of where the gap was so great that assumptions made by police were so speculative as to be misleading or unreliable. 18. In any event, exactly where a person or car was between points depicted on CCTV cameras is not of any significance. An example referred to in the course of submissions was when the re-creation of a car changing direction in Stanley Street had the police car turning into a carpark, doing a full lap and re-emerging to travel in the opposite direction. Theoretically at least, the car might just as easily have made a U-turn in Stanley Street. But whether it is one or the other or some other possibility, it simply does not matter. 19. A point that was developed with vigour in submissions was that the Crown does not require the re-creation video material to make good the points in issue that it is seeking to prove. If this was a contention that the evidence would involve an undue waste of time, I reject it. The Crown may lead as much evidence as it chooses to make good the points it wishes to make with a jury, provided they are relevant, and the evidence is contained within reasonable limits. There is nothing unduly excessive about what is involved here. Moreover, this was not contended to be relevant to an assertion of unfair prejudice as I understood the submissions. 20. In summary, the process of digesting the CCTV material, as has been described earlier, involves a time-consuming task that can be obviated by the jury having available the re-creation material. They will be provided with appropriate directions as to the care with which they need to consider it. I am not satisfied that there is anything about the evidence that amounts to a danger of unfair prejudice or an undue waste of time in the jury receiving the material. 21. There was, however, one aspect of the re-creation videos that I had some misgivings about, although it was not the subject of complaint by Ms Davenport. 22. The re-creation of the path traversed by Mr Kelekolio proceeds to the point where he was last seen (just outside an entrance to St Euphemia school in East Terrace). The re-creation continues, however, with the police officer proceeding on foot in a northerly direction on the footpath on the eastern side of East Terrace and stops at the point where CCTV material shows the Elgrand was parked (waiting for him on the Crown case). That is a matter of inference or Crown theory than actual re-creation of what the CCTV material depicts. In the absence of an objection specifically directed to this, I specifically asked the Crown to look carefully at the basis of this going before the jury. I hesitated in being more definitive about this because of doubts about the quality of what I could see on a small laptop computer screen to what may be seen on a screen with better definition.