R v Hawi & ors (No 27) [2011] NSWSC 1673

Supreme Court New South Wales

Medium Neutral Citation: R v Hawi & ors (No 27) [2011] NSWSC 1673 Hearing dates: 29 - 30 August 2011 Decision date: 01 September 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Application to exclude or limit the use of certain video evidence in the case concerning the accused Kisacanin refused Catchwords: CRIMINAL LAW - evidence - judicial discretion to exclude or limit use of evidence - mandatory exclusion of prejudicial evidence - video footage - evidence is not misleading or confusing and does not give rise to unfair prejudice Legislation Cited: Evidence Act 1995 Cases Cited: R v Hawi & ors (No 19) Category: Procedural and other rulings Parties: Regina Zoran Kisacanin Representation: Counsel: Ms N Adams with Ms H Roberts (Crown) Mr J Gordon (Accused) Solicitors: Solicitor for Public Prosecutions Elie Rahme & Associates File Number(s): 2009/75184; 2009/127777

Judgment 1HIS HONOUR: This judgment is concerned with a number of issues raised on behalf of the accused Kisacanin relating to certain video evidence. It concerns what has been referred to in the trial as the "Deng footage" and the "Watermark footage".

Submissions re the Deng footage on 15 August 2011 2On 15 August 2011 Mr Gordon of counsel made submissions to the effect that there was no case to answer in respect of his client, the accused Kisacanin. In the course of dealing with that issue the Crown Prosecutor outlined the evidence upon which the Crown relied in support of its contention that there was a case to answer. 3Reference was made by the Crown Prosecutor to the evidence of a Qantas staff member (Redford) who claimed to have seen a man pick up a bollard and swing it (T948.8). She said that this man was wearing a grey singlet and that he had tattoos. In cross-examination by Mr Gordon, the witness said that there were tattoos on both arms (T956.37). Mr Kisacanin was wearing such a singlet but he did not have tattoos. The Crown Prosecutor indicated that she proposed to submit to the jury that the witness may have been mistaken about the tattoos but correct about the singlet. It is possible that the jury might accept such a submission: as to this issue, see R v Hawi & ors (No 19) at [44] - [45]. 4There is other evidence which could support the proposition that Mr Kisacanin used a bollard in the course of the fighting in the departure hall. Footage from security camera 404 shows him coming into view from the left side of the screen carrying a bollard and putting it down. 5It was in the context of referring to this evidence on 15 August 2011 that the Crown Prosecutor also submitted that there was support for the proposition that Mr Kisacanin used a bollard. This was said to be found in the video footage recorded by a tourist (Deng). This is what I referred to earlier as "the Deng footage". (Exhibit FE is a disc containing the moving footage in its original and various enhanced forms; Exhibit GB contains still images from the footage). 6It was submitted that a still image recorded 2.36 seconds into the footage is capable of having discerned within it Mr Kisacanin. This is not said to be because facial or body features can be made out. Rather, it is because the figure can be seen to be wearing a white cap and dark shoes. For my part, the image at 2.36 seconds does not show a figure with such features, but an image at 2.56 seconds does (see also the images immediately before (2.52 seconds) and after (2.60 seconds)). 7In my judgment refusing an application for directed verdicts of acquittal ( R v Hawi & ors (No 19)) , I referred (at [52]) to my own perception of the still images (from 1.88 seconds to 2.88 seconds) as showing a bollard being picked up by a man who is very difficult to make out, probably because he is wearing dark clothing. That man then moves towards the front of the terminal (towards what was likely then to have been the central area of the fighting), very closely followed by the man, who the Crown asserts is Mr Kisacanin, who is also carrying a bollard. This person comes into view with the bollard already held, at an angle that is close to horizontal. 8On that occasion, Mr Gordon submitted in relation to this evidence that the person depicted was Mr Padovan. However, I was of the view that the image, whilst not very clear, was clear enough for the jury to make a distinction between a person wearing a white hat, grey singlet and dark coloured shoes (Mr Kisacanin) and a person wearing a white hat, no shirt and light coloured shoes (Mr Padovan). This is particularly so in relation to the hat and shoes.