R v Beattie (No 3) [2015] NSWSC 396

Supreme Court New South Wales

Medium Neutral Citation: R v Beattie (No 3) [2015] NSWSC 396 Hearing dates: 10 March 2015 Decision date: 10 March 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: Clip 1 will be admitted into evidence, but clip 2 will be excluded from evidence. Catchwords: CRIMINAL LAW – evidence – whether CCTV footage should be excluded under s 137 Evidence Act 1995 (NSW) – whether probative value is outweighed by danger of unfair prejudice Legislation Cited: Evidence Act 1995 (NSW), s 137 Category: Procedural and other rulings Parties: Regina Matthew Beattie Representation: Counsel: M Barr (Crown) J Trevallion (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Robert Kaufmann Criminal Lawyer (Accused) File Number(s): 2013/205981

EX TEMPORE Judgment 1. Objection has been taken by defence counsel to the first two clips contained in the CCTV footage from Nelson Bay RSL at about 1 AM on 30 June 2013 that became voir dire exhibit G. The objection is based upon s 137 of the Evidence Act 1995 (NSW). The other clips contained in voir dire exhibit G are not controversial. I have watched the clips twice, once in Chambers and once in court with the assistance of counsel. 2. It is the Crown case that, in assessing whether the accused had an intention to inflict really serious physical injury upon the deceased at approximately 3 AM, one can look to the accused's state of functioning, and bearing in mind his level of intoxication, about two hours before at the RSL Club. 3. Clip 1 shows the accused leaving the screen quickly and returning to the table some minutes later. It does not show the accused inflicting any violence, or indeed verbal aggression, upon any person. It is possible, as defence counsel submits, that the jury could infer that something disruptive or even violent is happening off screen and involving the accused, in light of the movements of the accused and the reactions of other patrons, but I think that that possibility is reasonably low. In any event, the application for exclusion must be seen in the context of the jury having heard evidence read to them today, and reflected in the statement which became MFI 8 and which remains on the Court file, that the accused and deceased were asked to leave the licensed premises after an "altercation". 4. I consider that the probative value of the evidence of how the accused moved away from, and back to, the table is quite high. I also consider that the danger of unfair prejudice is quite remote. I do not consider that, with regard to clip 1, s 137 is engaged. It follows that clip 1 will be admitted into evidence. 5. Clip 2 is in a rather different category. Amongst other things, it shows the accused on screen engaged in some sort of pushing and shoving match with at least one other person. The Crown has made it clear that acts of force or violence (other than, of course, those towards the deceased) of the accused that evening are not relied upon as tendency evidence, or on any other basis. I repeat: the Crown Prosecutor has made it clear that the presentation and conduct of the accused at about 1 AM is being led only in order to shed light upon his state of intoxication and state of mind at about 3 AM. 6. Images of the accused engaging in the use of force at about 1 AM have a real potential, in my view, to deflect the jury from a focus on the state of mind of the accused at approximately 3 AM. That is especially the case bearing in mind that the CCTV footage will go into the jury room and could be played, if the members of the jury wish to do so, multiple times. 7. Evidence of the accused engaging in pushing and shoving, combined with the preceding and subsequent reactions of not only other patrons but also of security staff, depicted on clip 2 gives rise to a real danger of unfair prejudice. In my opinion, clip 2 fulfils the test contained in s 137 of the Evidence Act and, therefore, the statute mandates that it must be excluded. 8. In short, clip 1 will be admitted into evidence, but clip 2 will be excluded from evidence.