Citation: R v Hawi & ors (No 27) [2011] NSWSC 1673
Court: Supreme Court of New South Wales
Date: 1 September 2011
Judge(s): Hulme J
Background
This decision arises from a major criminal trial concerning alleged group violence at Sydney Airport. The judgment addresses evidentiary objections raised on behalf of one accused, referred to here as the accused Kisacanin, relating to two pieces of video evidence referred to throughout the trial as the "Deng footage" and the "Watermark footage."
The Deng footage was recorded by a tourist and captured events in the airport departure hall, including what the Crown contended was the accused carrying and using a bollard during the fighting. The Watermark footage, from a security camera, allegedly showed the accused pursuing another man in company with others from the Comanchero motorcycle group.
The accused's counsel raised a series of objections to both pieces of footage, arguing variously that the evidence should be excluded or its use by the jury limited under provisions of the Evidence Act 1995. The court heard these submissions after evidence in the trial had closed but before closing addresses.
Legal Issues
- Whether the Deng footage should have its use limited under s 136 of the Evidence Act 1995 on the ground of unfair prejudice to the accused
- Whether the late disclosure by the Crown of its intended reliance on the Deng footage caused actual, demonstrable prejudice to the conduct of the defence
- Whether the Deng footage should be excluded under s 135 or s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by unfair prejudice, or that it was misleading or confusing
- Whether the Watermark footage was unfairly prejudicial, misleading, or confusing, given the risk of the jury confusing the accused with another person who was also wearing a white hat
Decision
On the Deng footage and the late notice complaint: The court accepted that the Crown had not flagged its reliance on the Deng footage in the case against Kisacanin until 15 August 2011. However, Hulme J found that no real prejudice flowed from this timing. Evidence from two experts established that the footage quality was so poor that further enhancement was virtually impossible and would not have achieved anything useful. Fourteen days had elapsed between the Crown raising the issue and the defence case closing, yet no attempt appeared to have been made to obtain expert assistance, and no adjournment was sought.
On probative value and the risk of confusion: The court acknowledged the footage was of poor quality but concluded it was sufficient for the matter to be left to the jury. Still images taken approximately 2.56 seconds into the Deng footage disclosed a figure wearing a white cap, grey singlet and dark shoes, consistent with what Kisacanin was wearing. Hulme J was satisfied the jury could distinguish that figure from another person depicted, who wore no shirt and light-coloured shoes.
On the Watermark footage: The court rejected the argument that the jury might confuse Kisacanin with the other man who was also wearing a white hat. The footage clearly showed the pursued man being chased by another individual. Because the pursued man must have been Mr Padovan, the man in the white hat running behind the pursuer could not also be Mr Padovan. Hulme J found no basis to exclude or limit the jury's consideration of that footage.
On jury directions: The court confirmed that it would give the jury careful directions about the approach to be taken in viewing, analysing, and drawing conclusions from all video footage in evidence.
Orders Made
No orders were made in this decision.
Key Takeaways
- Hulme J declined to exclude or limit the jury's use of either the Deng footage or the Watermark footage under ss 135, 136, or 137 of the Evidence Act 1995, finding that neither piece of evidence was misleading, confusing, or unfairly prejudicial in the relevant sense.
- A complaint about late Crown disclosure of reliance on video evidence did not establish unfair prejudice where the defence had adequate time to seek expert assistance, took no steps to do so, and made no application for an adjournment.
- Where expert evidence establishes that enhancement of footage of poor quality is virtually impossible and would not be productive, the theoretical availability of that avenue does not give rise to actual prejudice in the absence of any attempt to pursue it.
- The risk of jury confusion between two individuals who share a common feature in footage (here, a white hat) may be adequately addressed by the visual logic of the footage itself, rather than by exclusion or limitation of the evidence.
- Under s 136 of the Evidence Act 1995, a court may limit the use of evidence where its use would be unfairly prejudicial or misleading, but that threshold was not met on the facts here, particularly given the court's intention to give careful jury directions about the evaluation of video evidence.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 135, 136, 137
Cases:
- R v Hawi & ors (No 19) [2011] NSWSC (referenced at [44]–[45] and [52] regarding the no-case-to-answer ruling and assessment of the video imagery)