R v Klein (No.1) [2008] NSWSC 333

New South Wales Supreme Court

CITATION : R v Klein (No.1) [2008] NSWSC 333

JUDGMENT DATE : 31 March 2008

JUDGMENT OF : Buddin J

DECISION : Objection upheld.

CATCHWORDS : Evidence of "reconstruction"

LEGISLATION CITED : Evidence Act

CATEGORY : Procedural and other rulings

CASES CITED : Evans v The Queen [2007] HCA 59

PARTIES : Regina Gaby Michael Klein

FILE NUMBER(S) : SC 2002/2281

COUNSEL : G Tabuteau (Crown) P McGrath (Accused)

SOLICITORS : S Kavanagh (Director of Public Prosecutions) Crown Andrews Solicitors (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

MONDAY 31 MARCH 2008

2002/2281 – R v GABY MICHAEL KLEIN

JUDGMENT – Objection to "reconstruction" by Detective Harden (No.1) 1 HIS HONOUR: Objection is taken by Mr McGrath, who appears on behalf of the accused, to the tender by the Crown of a video-recording of what I shall describe as a "reconstruction" of a scene which was conducted by the officer in charge of the case, Detective Sergeant Harden. 2 In order to place the present application in context it is necessary to refer to various pieces of evidence which have already been given. The accused is charged with the murder of Gary Moustafa at Gladesville on 15 February 2001. The following day police went to the accused's premises at Castle Hill and there spoke with him. Detective Harden entered the accused's bedroom and asked him what he had been wearing the previous day. The accused told him that he could not remember. Whilst looking around the bedroom, Detective Harden observed, in a dirty clothes pile, a dark coloured T-shirt and shorts. He asked the accused if they could be the clothes, to which the accused replied "Might be, yeah". The accused indicated that he had no objection to the clothes being taken for examination. 3 Some time later that evening the accused was interviewed by police by way of an ERISP (Exhibit AY). During the course of that interview the following exchanges took place: Q And do you remember what you were wearing? A …. Q A pair of black shorts? A Yeah. Honestly, you'll have to tell me. Q Well, is this what you wore yesterday from memory? A Was it blue shirt and black --- Q It, is just appears to us dark clothing but I need you to tell me basically what you wore to the best of your memory? A Probably that, probably would've worn that. … Q The clothes that we have on the desk in front of us, it's a black pair of shorts I believe. A Yeah. Q What, what, what can you tell me about those? A I was wearing them yesterday. Q So, are they, they're your shorts? A Yes. Q O.K. And where were they tonight? A Behind my door ready to be washed. Q O.K. A I'm lazy. Q And there is a blue T-shirt here. A Yeah. Q Is that right? A Yeah. Q O.K. What can you tell me about that blue T-shirt? A The same again. Q O.K. So when you say, same again --- A Sorry, ready to be washed. Q … Were you wearing 'em all yesterday? A Yeah, I think I was. Q And did you give the police permission to take those -- A Yes. (Q175-178, 447-457) 4 There is already in evidence before the jury CCTV footage of the accused, who at the time is in a Caltex Service station, which is located a short distance away from the premises in which the deceased was killed (Ex AH). The footage is taken a short time before the fatal incident occurred and it shows the accused wearing a dark T-shirt and shorts. He is also wearing a backpack and carrying a helmet down by his left side. The clearest image of him is as he approaches a counter with his face towards the camera. That image, and other images of him whilst he is at the counter and then leaving it, occupy a period of less than 20 seconds. The police seized the clothes which were found in the deceased's bedroom and they are in evidence (Exhibits AAA and AAB). 5 In the "reconstruction" which is recorded on CCTV footage in the service station, Detective Harden is depicted wearing similar clothing to that worn by the accused. The Crown contends that the items which the accused told police that he was wearing on the day in question have fairly prominent logos displayed upon them. It places particular emphasis upon the one which appears on the front left hand side of the shorts. It submits that no such logo is apparent upon an examination of the accused's clothing as shown in the CCTV footage of 15 February, whereas the logos on the clothing worn by Detective Harden during the reconstruction are clearly visible. That being so, the Crown submits that the clear inference is that the accused was not wearing the clothing which he suggested to police that he was. That is a fact, it is submitted, which not only reflects adversely upon his credibility but it would also explain why no gun shot residue was located upon those items of clothing when they were tested. 6 I have had the opportunity of viewing both the CCTV footage of the "reconstruction" by Detective Harden and the CCTV footage of the accused. I will content myself with the observation that the contrast between them is very apparent. Some of the most obvious points of contrast are listed below: