Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huynh v R [2022] NSWCCA 60 Hearing dates: 17 March 2022 Date of orders: 17 March 2022 Decision date: 17 March 2022 Before: Beech-Jones CJ at CL at [1] Bellew J at [42] Ierace J at [43] Decision: (1) Appeal allowed; (2) Vacate the ruling made by the trial judge on 14 March 2022 excluding the compilation of the CCTV footage pursuant to s 56 of the Evidence Act; (3) Vacate the ruling made by the trial judge on 14 March 2022 excluding the compilation of the CCTV footage pursuant to s 137 of the Evidence Act; and (4) Vacate the ruling made by the trial judge on 14 March 2022 excluding the compilation of the CCTV footage pursuant to s 135 of the Evidence Act. Catchwords: APPEAL – interlocutory ruling rejecting Crown evidence – CCTV footage – assessment of relevance – no question of principle Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Category: Principal judgment Parties: Regina (Applicant) Cong Huy Huynh (Respondent) Representation: Counsel: Ms M Kumar; Ms E Curran (Applicant) I Wallach (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant) Karim and Nicol Lawyers (Respondent) File Number(s): 2018/268774 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 14 March 2022 Before: Coleman SC DCJ File Number(s): 2018/268774 EX TEMPORE Judgment (Revised from transcript) 1. BEECH-JONES CJ at CL: This is an appeal under s 5F(3A) of the Criminal Appeal Act 1912 by the Crown against a ruling by his Honour, Coleman SC DCJ rejecting the tender of certain CCTV evidence in a criminal trial currently proceeding in the District Court at Parramatta. 2. The respondent was arraigned before a jury panel on 7 March 2022. The trial commenced. On 9 and 10 March 2022, his Honour conducted a two‑day voir dire concerning the admissibility of the CCTV footage. At the conclusion of the voir dire his Honour rejected its tender. On 14 March 2022, his Honour delivered reasons for the ruling. 3. As the trial is ongoing, this appeal has been listed urgently. These reasons are being delivered at the conclusion of argument with the great assistance of counsel. For that reason, this judgment is perhaps less expansive on the issues than it might otherwise have been. The Crown Case on the CCTV Footage 1. There are four counts on the indictment. The first count charges that on 28 August 2018 the respondent wounded Brusy Lay with intent to cause murder contrary to s 27 of the Crimes Act 1900 and the second count charges that, in the alternative, he wounded Mr Lay with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act. The third count charges that on 31 August 2018 the respondent possessed an offensive weapon with intent to intimidate contrary to s 33(1)(b) of the Crimes Act. The fourth count charges that, on the same day, he assaulted John Dinh thereby occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. 2. The Crown alleges that on the evening of 28 August 2018 the respondent stabbed Mr Lay in the head, neck and stomach and thigh in Unit 16/135 Railway Parade, Canley Vale and also occasioned traumatic brain injuries. According to the Crown, at the time the respondent entered the unit Mr Dinh and Tanh Le were present in the unit. The Crown contends that upon seeing the respondent holding a knife Mr Dinh jumped over the balcony and ran. 3. According to the Crown, three nights later on 31 August 2018, the respondent confronted Mr Dinh and chased him into a restaurant at Canley Vale. Whilst in the restaurant it is alleged the respondent armed himself with a knife and then threw chairs and punched Mr Dinh causing him grazes and bruising to his body. The events of 31 August 2018 give rise to counts 3 and 4 on the indictment. 4. In this Court, the Crown submissions described the evidence identifying the respondent as the person who stabbed Mr Lay as a combination of the evidence of Mr Dinh, Mr Le and the CCTV footage which is the subject of this application. 5. Mr Le was called at the trial. In his evidence‑in‑chief he asserted that he was in the bedroom of the unit when Mr Lay was stabbed and did not see the perpetrator. Apparently, the Crown was granted leave under s 38 of the Evidence Act 1995 to cross-examine him. The Crown put to him the contents of the second statement he made to police in which he identified the respondent as the perpetrator. In the first statement he made to police he stated that the perpetrator was unknown. Despite these matters being put to him Mr Le has maintained his denial of the knowledge of the perpetrator. 6. Mr Dinh has not yet been called at the trial. Both parties' submissions in this Court state that it is anticipated he will not give oral evidence identifying the respondent as the perpetrator of the stabbing. During the hearing of the application the Court was advised that Mr Dinh also provided a statement to the police identifying the respondent as the person who stabbed Mr Le. In these circumstances it seems likely that the Crown will be able to cross-examine him and adduce evidence that he made that statement. 7. The circumstantial evidence sought to be relied upon by the Crown is essentially three-fold. The first item of circumstantial evidence is a reasonably distinctive bicycle which was seized during the execution of a search warrant at the respondent's premises some days after the attack on Mr Lay. Having viewed television footage of that search warrant including the bicycle it is sufficient to note that the bicycle appears to have a distinctive rack at the back. 8. The second item of circumstantial evidence is a black hat with a white motif which was found at the crime scene specifically in a room in the apartment near where Mr Lay was said to be stabbed. The hat was the subject of DNA testing. The respondent's DNA was found on the hat along with the DNA from a number of other contributors. Apparently, a similar hat was found at the respondent's premises during the execution of the search warrant. 9. The third item of circumstantial evidence is the compilation of CCTV footage that is the subject of this application. During the voir dire that preceded his Honour's ruling the Crown led evidence from the officer in charge, Detective Keighran, to support the admission of the CCTV footage into evidence. We have viewed the CCTV footage. It consists of a series of segments of footage taken from different CCTV cameras, each bearing time markings indicating that they were taken on the evening of 28 August 2018. It appears that there are 20 such segments of which 13 of them were taken from CCTV cameras maintained by Fairfield Council. As noted, each of the segments bears a recorded time which indicates that it is footage taken on the evening of 28 August 2018 although it appears that there are discrepancies in the recorded times. According to the Crown, the discrepancies in the recorded time are between the footage taken from the cameras maintained by Fairfield Council and those taken by private businesses. 10. Detective Keighran told his Honour that the compilation contains a sequence of clips of footage taken along Canley Vale Road and Railway Parade. It seems that Detective Keighran was able to identify the areas depicted in the footage. Detective Keighran told his Honour that he compiled the different sequences of footage believing that they were in fact sequential notwithstanding the discrepancies in the recorded times. It seems that he assumed or deduced that those time discrepancies were related to some of the CCTV cameras being adjusted for daylight saving. However, under cross-examination he also agreed there were differences of some 20 minutes or 10 minutes between the various segments which would not appear to be able to be explained on that basis. 11. Each of the segments of footage depict a person riding a bike mainly on the footpath through the streets of Canley Vale. The manner of the compilation of the footage suggests that what is being shown is the journey of the same rider. 12. At a point which the time markings appear to indicate to be around 10.22pm the rider can be seen to enter a property through a gate in what appears to be a wooden fence. Detective Keighran identified that location as the entry of the property that contains the apartment where Mr Lay was stabbed. The CCTV footage also appears to show that some minutes later a person leaves the premises and then they are followed by another person who leaves the premises and starts a return journey on the bicycle. 13. At least some of the CCTV footage appears to show or is at least capable of showing that when the bicycle was travelling to the property where Mr Lay was stabbed, that the rider was wearing something on his head which at least to my viewing is capable of appearing to be a hat. The CCTV footage also at times shows a reasonably clear view of the bicycle. It is capable of being viewed as showing a bicycle with a distinctive rack at its back. 14. Overall, it is open to someone viewing the footage to conclude that the person seen on the bicycle when it is travelling to the area where Mr Lay was stabbed was wearing a hat and that the person who leaves on the bicycle was not wearing a hat. It is also open to someone viewing the footage to conclude that the bicycle that is being depicted in at least some of the segments is very similar to the bicycle found at the respondent's premises. 15. Overall, the Crown contends the combination of the circumstantial evidence that I have described is capable of demonstrating that it was the respondent travelling on the bicycle that he rode to Mr Lay's premises, that he entered the property at which the apartment was located at or around the time Mr Lay was stabbed, he left his cap behind in the apartment and then departed again on the bicycle. If that evidence was accepted as having that effect, then it would place the respondent in the apartment where Mr Lay was stabbed at or around the time of the offence and have him leaving immediately afterwards. His Honour's Reasons 1. As noted, his Honour gave reasons for the ruling on 14 March 2022. His Honour set out the background to the application and the course of the voir dire. In that regard his Honour noted seven aspects of the CCTV footage as was said to be revealed by the evidence given by Detective Keighran on the voir dire. 2. First, his Honour noted that the time shown on the cameras for the "journey" of the bike rider was not sequential and that Detective Keighran could not give any direct evidence as to the reasons for those time differences. 3. Second, his Honour noted that Detective Keighran accepted that he could not give evidence that the positions of the cameras shown on a map that was produced on the voir dire accurately showed the positions of any of the cameras as at 28 August 2018. At this point, I note that it was nevertheless clear from Detective Keighran's evidence that he could locate the general location within Canley Vale from which the footage appears to have been taken. 4. Third, his Honour noted that the footage was not clear enough to enable the face of the person on the bike to be depicted nor to identify the bike rider's face. 5. Fourth his Honour noted that Detective Keighran accepted in several of the sequences the clothing seen on the bike rider did not appear to match the description of the clothes worn by the offender given by Mr Le. 6. Fifth, his Honour noted that none of the witnesses to the event the subject of the stabbing of Mr Lay have given or are likely to give evidence that, to their knowledge, the attacker rode a bike to and from the scene of the stabbing on the night of 28 August 2018. 7. Sixth, his Honour recorded that it was apparent that at least some of the segments showed the rider wearing a cap but noted that sometimes it appears the rider is not wearing a cap and sometimes one cannot tell. 8. Seventh, his Honour noted Detective Keighran's evidence about the location where the bike rider appears to leave the bike and enter through the gap in the fence, that is at 135 Railway Parade Canley Vale. His Honour added that from the footage "no buildings could be seen and the footage does not show where the person who enters the gap in the 'fence' goes". 9. Having noted these matters and then set out the party's submissions his Honour concluded that the evidence was not relevant. The critical reasoning supporting that finding was as follows: "The Crown case is that the jury will be asked to consider all of the circumstantial material and infer that the person on the bike was the accused. The jury will be asked to make this inference in support of the Crown case that it was the accused at the premises on the night of 28 August 2018 who committed the offence. The fundamental difficulty with the Crown position, even taking the evidence at its highest in my opinion, is that no rational inference can be drawn of the sort suggested by the Crown from the CCTV footage. That is because of the glaring absence of evidence with respect to the time differences of the CCTV footage taken from the Fairfield Council cameras and the private business cameras. Detective Sgt Keighran accepted that he had assumed that the times on the private business cameras were wrong. He made this assumption, as I have set out above, because of his belief that the CCTV footage showed the same person on the same bike for the whole of the duration of the footage. However, absent evidence as to the reason for the time differences and, if the times are wrong what the actual time was, such as assumption can never be made good. Accordingly, in my opinion, it would not be rational to make such an assumption absent that evidence." 1. His Honour said, that he reached "that conclusion without any additional consideration of all the other fundamental difficulties that were highlighted during the evidence of Detective Keighran". That said his Honour addressed the alleged relevance of the finding of the cap at the scene as follows: "In respect to the Crown's submission that the footage showed the bike rider wearing a cap on the way to the scene of the offence but no cap on the way back, and that a cap was found at the scene bearing (amongst others) the DNA of the accused, I note that the offender as described by Mr Le was not said to be wearing a cap when he entered the premises. Additionally, with respect to the DNA evidence as set out above, multiple contributors to the DNA trace were found on the cap, not only that of the accused. Further, the evidence of Mr Le was that the accused had been at the unit earlier that day to "score" drugs. I also note that another person who could not be excluded as having contributed to the DNA on the cap, had been at the unit the day of the attack. I therefore do not accept the Crown submission that the only rational inference is that the cap was left at the unit after the attack." 1. Having rejected the evidence as not relevant, his Honour nevertheless addressed whether, if the evidence had been admissible, it would nevertheless have been rejected under ss 135 and 137 of the Evidence Act. His Honour concluded that it would have been rejected. In particular, his Honour addressed the relevant prejudice that was said to be occasioned to the respondent from the admission of the CCTV footage as follows: "Even if the CCTV evidence in its current form was admissible, the use of that fact (together with the CCTV evidence) would be such that, in my opinion, there is a real risk that the jury would misuse the evidence in an unfair way to the accused. That is a risk of misuse by making the same assumption with respect to the timings on the CCTV footage of the private businesses that Detective Sgt Keighran had made. That is, there is a real risk that the jury would misuse the evidence by looking at the CCTV evidence in the manner in which it has been compiled and forming the view that it is the same bike rider making one journey at or about the time of the attack to the premises where the attack took place and then leaving the premises on the bike. There is a real risk the jury would then assume that the times which did not marry in with the council times (which do place a bike rider at or near the scene of the attack at about the time it took place) with simply wrong. There is a real risk that the jury would conclude that the bike rider shown on all parts of the CCTV footage was the accused. There is a real risk, in my opinion, that the jury would misuse the evidence in this way despite the directions I would give them. This is all, of course, in the context of there being absolutely no evidence that the attacker rode a bike to or from the premises." The Appeal 1. A threshold issue that arises on appeal under s 5F(3A) is that the relevant ruling "eliminates or substantially weakens the prosecution's case". I will return to address this issue shortly but at this point I note that I consider it to be satisfied. 2. The various arguments of the Crown and the careful arguments on behalf of the respondent in the end all reduced to considering his Honour's approach to the assessment of the relevance and, in turn the probative value, of the CCTV footage in light of the limitations on that footage as disclosed in the evidence of Detective Keighran. 3. With respect to his Honour, I consider that his Honour erred both as a matter of principle and in making his findings in assessing the probative value of the evidence. In particular, I considered his Honour approached the assessment of probative value by reference to what his Honour considered the evidence did prove rather than considering whether the evidence was capable of proving what the Crown contended. 4. Section 55 of the Evidence Act defines evidence as relevant evidence which "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 proceedings." This assessment is to be undertaken on the assumption that the evidence is reliable and credible (see IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [39]). Further, the assessment is to be undertaken having regard to the other evidence to be adduced. 5. The admissibility of the compilation of the CCTV footage did not in this case turn, as his Honour appeared to assume, on Detective Keighran's assumption or surmise that there were errors in the recorded times of the CCTV footage. Instead, it turned upon whether the footage "could" rationally have affected the assessment of a probability of a fact in issue, specifically, whether the respondent travelled to, and then entered, and then departed from, 16/135 Railway Parade, Canley Vale, at or around the time Mr Lay was stabbed. 6. The capacity of the evidence to do so had to be determined by reference to all the evidence including the evidence of the finding of the hat at the scene with the respondent's DNA, the seizure of the bicycle at his home with its distinctive rack, such evidence as there was from Mr Dinh and Mr Le and the contents of the CCTV footage itself. Having reviewed the CCTV footage, I consider it did have the capacity to affect the assessment of the probability of a fact in issue, namely, the attendance of the respondent at the scene of the stabbing at around the time it occurred and then his departure afterwards. It is open to conclude that the CCTV footage depicts a continuing journey of the same person on a relatively distinctive bicycle. 7. There is no doubt that the discrepancies in the recorded times between the council footage and the footage taken by private businesses has the capacity to undermine the probative force of that evidence, but it does not destroy it. A jury could conclude, like Detective Kieghran concluded, that the evidence does depict a single journey by some person, namely the respondent, and that the time discrepancies are explicable by reference to errors in the recorded times of the CCTV footage maintained by particular businesses. The fact that the jury might not conclude, or that his Honour might not so conclude, does not mean that they could not do so. This is determinative of whether the evidence was relevant. 8. The same reasoning applies in relation to his Honour's assessment of the evidence concerning the cap. The fact that there might be other explanations as to how a cap with the respondent's DNA came to be at the apartment does not mean that the evidence of it being found, when considered with the CCTV footage, is not capable of proving the respondent attended there on the evening at around the time of the stabbing. Similarly, the fact that either Mr Dinh or Mr Le did not describe the perpetrator as having worn a cap at the time of the stabbing does not deny that either. It will be a matter for the jury to assess the credibility and reliability of any description of the perpetrator given by Mr Dinh or Mr Le. 9. These conclusions also invalidate his Honour's considerations of ss 135 and 137 of the Evidence Act. In light of my conclusions, the "risk[s]" that his Honour has identified are not a form of prejudice but instead a legitimate form of reasoning that the jury might but not necessarily will or must engage in. It follows that I consider his Honour erred in the assessment of the lack of probative value of the CCTV footage. This error affected both his Honour's assessment of the relevance to the evidence and the application of ss 135 and 137. 10. Two further matters remain to be considered. First, there is the threshold question in s 5F(3A). Absent the CCTV footage, and the evidence of the finding of the relatively distinctive bicycle at the respondent's premises, the Crown case appears to be limited to the out-of-court statements made by Mr Dinh and Mr Le to the police which they have or will disavow on oath and what might be inferred from the finding of the cap. Such a case can be fairly described as weak. If the CCTV footage and the evidence of the finding of the bicycle were to be admitted and if the jury accepted what the Crown contends the evidence demonstrates, then the Crown case would be very much strengthened although I would still not describe it as a strong one. Nevertheless, given it has that effect, s 5F(3A) is satisfied. 11. Second, in terms of appropriate orders, I propose that the Court set aside his Honour's rulings. However, I do not propose that the Court order that the CCTV footage be admitted into evidence at this stage. In my view, the CCTV footage is admissible and should be admitted but that should only occur with an explanation of how it was compiled and an explanation by Detective Keighran of the areas depicted in the footage. Further, it follows that Detective Keighran's opinion about the cause of the time discrepancies or whether they even are discrepancies and what the footage otherwise depicts is irrelevant. Ultimately, it will be a matter for the parties and then his Honour to take steps to ensure that such an explanation is given and those limitations are observed. 12. Accordingly, I propose the following orders: (1) Appeal allowed; (2) Vacate the ruling made by the trial judge on 14 March 2022 excluding the compilation of the CCTV footage pursuant to s 56 of the Evidence Act; (3) Vacate the ruling made by the trial judge on 14 March 2022 excluding the compilation of the CCTV footage pursuant to s 137 of the Evidence Act; (4) Vacate the ruling made by the trial judge on 14 March 2022 excluding the compilation of the CCTV footage pursuant to s 135 of the Evidence Act. 1. BELLEW J: I agree with the orders proposed by the Chief Judge at Common Law for the reasons that his Honour has given. 2. IERACE J: I also agree with the judgment of the Chief Judge at Common Law. ********** Amendments 09 May 2022 - Name of Counsel on Coversheet - corrected to read: Ms E Curran 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: 09 May 2022