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: (a) For reasons which have not been explained, the clothing worn by Detective Harden in the "reconstruction" is not the same as the items which were seized by the police. Moreover, there are a number of differences between them in style, cut and colour. Indeed Detective Harden is seen to wear two different T-shirts, one of which is navy blue whilst the other is grey. Nor are the logos on the different items the same. They also differ in size, shape and design. The logo on the shirt provided by the accused is very much smaller than those which appear on the shirts worn by Detective Harden whilst the logo on the shorts provided by the accused is considerably larger than the one on the shorts worn by Detective Harden . (b) Detective Harden has a quite different physique from the accused. He is a very much larger man and that may possibly affect the way in which he wears clothes. (c) Nor are the accused's movements in any real sense, replicated. Detective Harden, for much of the time, remained in the one position. Moreover, he was there for some minutes. The accused, by contrast, was, but for a very brief period of time, continuously in motion. He is visible for a very much shorter period of time than Detective Harden. Unlike the accused, Detective Harden also stood "side-on" to the camera at various stages so that the left hand side of the shorts was readily observable. (d) Unlike the accused, Detective Harden was not wearing a backpack which had straps down the front, and a helmet by his side, which may have partially obscured any logo that might have been present. It may be, as the Crown pointed out, that this feature has more significance in relation to the shirt than the shorts. (e) Detective Harden's reconstruction took place on 15 August 2005 at 3:20pm. Not only did it cccur 4½ years after the original CCTV footage but it occurred at a different time of day and at a different time of year. Those factors may have affected what was recorded, including for example, the quality of the lighting. 7 Mr McGrath submitted that the Crown must fail at the outset because the accused's answers to the questions as to whether he was in fact wearing the clothes which he handed over are, at the very least, equivocal. Be that as it may, I propose to uphold the objection because the "reconstruction" itself ought not, in any event, be received into evidence. In coming to this conclusion, I have had regard to the shortcomings in the material to which I have just referred. In summary, it falls well short of being a faithful recreation of the images of the accused as they appear in the original CCTV footage. In those circumstances, it appears to me that it would be quite misleading to place it before the jury. 8 On one view of the matter, the material may not even satisfy the test of relevance within the meaning of s 55 of the Evidence Act: see generally Evans v The Queen [2007] HCA 59 per Gummow and Hayne JJ. In this context, I note that there appears to be no impediment to the jury making its own assessment about what clothes the accused was wearing on the day in question, by simply comparing the items which he handed over with what appears in the CCTV footage. Alternatively the "reconstruction" could amount to a "demonstration" within the meaning of s 53 of the Evidence Act: see generally Evans (supra) per Heydon J, with whom Crennan J agreed, at para 194. In that event it would be open to me to exclude the material as not fulfilling the requirements of s 53(3)(c) and (d). Since neither of these matters were debated before me, I am content to exclude the material pursuant to the provisions of s 135 of the Act which is in the following terms: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 9 What I have already said leads me to conclude that the probative value of the evidence, whatever it may be, would be "substantially outweighed by the danger that the evidence might … be misleading or confusing". Were it necessary to do so, I would also take the view that the material should be excluded pursuant to s 137 of the Act. 10 For those reasons I uphold the objection. ********** 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.