R v Tabbah; R v Tiriaki (No 5) [2014] NSWSC 568

Supreme Court New South Wales

Medium Neutral Citation: R v Tabbah; R v Tiriaki (No 5) [2014] NSWSC 568 Hearing dates: 24 April 2014 Decision date: 28 April 2014 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Evidence admissible. Catchwords: EVIDENCE - CCTV footage - relevance - whether probative value of footage outweighs danger of unfair prejudice - s 142 of the Evidence Act 1995 Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Tabbah; R v Tiriaki (No 4) 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), giving reasons in R v Tabbah; R v Tiriaki (No 4). That footage became exhibits 30 and 31. 2The application that the footage was not relevant was renewed, after the accused viewed more extensive CCTV footage, which it was submitted established that the Crown was unable to prove the relevance of the footage, on the balance of probabilities (see s 142 of the Evidence Act 1995 (NSW)). 3Reliance was placed on s 146 which provides: "146 Evidence produced by processes, machines and other devices (1) This section applies to a document or thing: (a) that is produced wholly or partly by a device or process, and (b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome. (2) If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome." 4The presumption was submitted to have been displaced by the further footage, exhibit V7. Exhibits 30 and 31 were the CCTV footage from cameras at the National Archive, located a short distance away from Mathew Hedges' home, which on the Crown's case shows the two assailants running past, shortly after he was shot. Exhibit V7 was further footage later recorded by the same camera during daylight hours. 5That continuous footage shows a date time change from 12/31/2011 at 1.31.03 (the same time as exhibits 30 and 31) to 13.52. Detective Sergeant Browne's evidence was that this time change occurred during the time that he and Detective Ritchie were with Mr Stevens at the National Archive and that it was consistent with his observation that while Mr Stevens was operating the system, the time changed. Mr Stevens' evidence had been that he did not have access to the CCTV system sufficient to permit him changing the time being recorded by the system. The footage showing the time change is not consistent with his evidence, but supports the evidence of both Detective Browne and Detective Ritchie that they observed the time change while they were with Mr Stevens. 6In the result, it was the accuseds' case that exhibits 30 and 31 were not admissible, because the Crown could not establish that the footage was of a relevant period and thus admissible under s 55 of the Evidence Act. 7I am unable to accept that submission. 8It was the evidence of the three people who attended the National Archive and inspected the footage recorded on the CCTV system which became exhibits 30 and 31, that they observed the time then being recorded was some four minutes out. Both Detective Sergeant Browne and Detective Ritchie gave evidence that they had established this by reference to their mobile phones. Mr Stevens' evidence corroborated theirs. That evidence displaced the presumption under s 146 in relation to the time recorded on the footage by the CCTV system. On the evidence the time recorded on the footage was 4 minutes out as explained in R v Tiriaki; R v Tabbah (No 4). 9It must also be considered that under s 146, there is also a presumption that the times on the mobile phones used to check the time on the CCTV system were accurate, they being devices "that, if properly used, ordinarily produces" the time. 10In the result, it is not open to conclude that the footage Mr Stevens gave to the police which became exhibits 30 and 31, as they each explained in their evidence, was not footage taken in close proximity to the time that Mathew Hedges was shot. 11Notwithstanding that further footage provided to the police some days later, shows that the time recorded by the CCTV system on footage shot by camera 9 while the police were with Mr Stevens, during daylight hours after Mathew Hedges was shot, was clearly wrong, that does not make the earlier footage recorded by the system which was some 4 minutes out, either irrelevant or inadmissible. 12Accordingly, the renewed application in relation to the admission of exhibits 30 and 31 as irrelevant, must be refused.