R v Tabbah; R v Tiriaki (No 4) [2014] NSWSC 567

Supreme Court New South Wales

Medium Neutral Citation: R v Tabbah; R v Tiriaki (No 4) [2014] NSWSC 567 Hearing dates: 16 April 2014 Decision date: 23 April 2014 Jurisdiction: Criminal Before: Schmidt J Decision: Evidence admissible. Catchwords: EVIDENCE - CCTV footage - relevance - whether probative value of footage outweighs danger of unfair prejudice - s 137 of the Evidence Act 1995 Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v Yates [2002] NSWCCA 520 Category: Procedural and other rulings Parties: Regina Salim Tabbah Wassim Tiriaki Representation: Counsel: Mr T Hoyle SC (Crown) Mr P Lange (Tabbah) Mr C Waterstreet (Tiriaki) Solicitors: Director of Public Prosecutions (Crown) Hanna Legal (Tabbah) Elie Rahme & Associates (Tiriaki) File Number(s): 2012/73478 2012/73453 Publication restriction: No

Judgment 1Over the objections of the accused I ruled that certain CCTV footage was relevant and admissible and that it was not inadmissible under s 137 of the Evidence Act 1995 (NSW). 2The reasons for those conclusions are as follows.

The parties' cases 3Mathew Hedges died on 31 December 2011 when he was shot at close range in the chest. That shot was fired late at night, through the window of his lounge room, which was broken shortly before the shot was fired. The person who fired that shot was not seen by anyone present. 4It appears from the cases which the parties are advancing that there is no issue that someone murdered Mathew Hedges. What is in issue is whether either of the two accused had the involvement in that murder which the Crown alleges. 5The Crown's case against both accused is circumstantial. It relies on various evidence to establish its case, which includes evidence already received that shortly after the shooting, neighbours heard someone running past. It also sought to rely on CCTV footage from cameras at the National Archive, located a short distance away from Mathew Hedges' home. On the Crown's case that footage shows the two assailants running past. The accused objected to that evidence on the ground of relevance. 6The case opened for Mr Tabbah was that the technical evidence on which the Crown relied could not establish the charge brought against him. 7The case opened for Mr Tiriaki was that he denied killing Mathew Hedges, or having any involvement in the activities leading up to his death and that the technical evidence could not prove the case against him. He was not then present or even in the vicinity, but he was later used to dump the material the subject of DNA testing, including the gun. It was also submitted that the evidence would disclose that the reason that Mathew Hedges, who was a drug dealer, was killed was something to do with what had happened while he was in prison; that Mr Tiriaki was not in prison; and that he did not know Mathew Hedges, who had a number of enemies who had reason to see him out of the way.