Citation: R v Hawi & ors (No 12) [2011] NSWSC 1658
Court: Supreme Court of New South Wales
Date: 6 July 2011
Judge(s): Hulme J
Background
The accused were standing trial in connection with events at Melbourne Airport and the T3 Qantas Sydney domestic terminal on 22 March 2009. The Crown proposed to tender CCTV footage from security cameras at both locations, together with a PowerPoint compilation that arranged selected footage from those cameras in chronological order.
The compilation had been known to all parties for at least a year, and the Crown's intention to tender it had been flagged for at least two to three months before trial. The Crown Prosecutor had used it during her opening at the committal hearing twelve months earlier, and had played it to the jury during her opening address on 25 May 2011. During that period, defence counsel had raised only limited objections to discrete labelling within the compilation, all of which the Crown had accommodated.
On 5 July 2011, the day before the compilation was to be tendered, counsel for one of the accused raised a broader objection to its admissibility for the first time. The trial judge heard argument and indicated his ruling that afternoon; these were his written reasons.
Legal Issues
- Whether a chronological PowerPoint compilation of CCTV footage was admissible as evidence, or whether it amounted to nothing more than a tool for the Crown's closing speech.
- Whether the compilation was so misleading or incomplete as to render it inadmissible.
- Whether a late-stage objection to admissibility, raised without prior disclosure under the Criminal Procedure Act 1986, affected the outcome.
Decision
Hulme J dismissed each of the grounds of objection. His Honour accepted the Crown's submission that a chronological compilation served a genuine forensic purpose: it would assist the jury in comprehending a substantial and otherwise unwieldy body of footage from multiple individual cameras. Restricting the jury to the raw footage alone would impose a convoluted and time-consuming task of piecing together material in logical order.
On the submission that the compilation was merely an opening address placed into evidence, his Honour rejected that characterisation. The compilation was a structured presentation of actual footage. The jury would also have access to the underlying CCTV footage itself, so no material was being withheld.
On the claims that the compilation was "misleading" and "incomplete," his Honour noted that counsel did not identify a single item of footage that should have been included but was not. No counsel for any of the other accused joined in those submissions or suggested the compilation was unfair to their client.
His Honour also observed that pre-trial disclosure obligations under ss 141, 143(d) and 147 of the Criminal Procedure Act 1986 required the accused to disclose any objections to the admissibility of Crown evidence. That obligation had not been met in relation to this compilation. While his Honour did not determine the objection by reference to the sanction provisions, he noted the lateness of the objection carried potential unfairness to the orderly presentation of the Crown's case.
Orders Made
No orders were made in this decision.
Key Takeaways
- A chronological compilation of CCTV footage from multiple cameras can be admissible as evidence in its own right, rather than being characterised as a form of Crown submission or advocacy, where it serves to assist jury comprehension of a large body of material.
- An objection to admissibility framed in terms of a compilation being "misleading" or "incomplete" carries little weight where counsel does not identify specific content that is missing or that distorts the evidence.
- Under ss 141, 143(d) and 147 of the Criminal Procedure Act 1986, defence representatives are subject to ongoing pre-trial disclosure obligations requiring them to identify objections to Crown evidence; failure to comply in a timely way was noted as a concern, even though the late objection was not resolved solely on that basis.
- Fairness in the administration of justice, Hulme J observed, applies to the Crown as much as to the accused, and a last-minute objection to long-disclosed material can itself create procedural unfairness.
- The admission of a compilation does not preclude the jury from also receiving the underlying primary footage; providing both was described as the appropriate course.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 141, 143(d), 147, and Chapter 3, Part 3, Division 3
Cases cited:
No cases were cited in the judgment.