Citation: R v Tabbah; R v Tiriaki (No 4) [2014] NSWSC 567
Court: Supreme Court of NSW
Date: 23 April 2014
Judge(s): Schmidt J
Background
The two accused faced trial for the murder of a man shot through his lounge room window in the early hours of 31 December 2011. The Crown's case was entirely circumstantial. A neighbour had heard someone running from the direction of the deceased's home shortly after the shooting, and a 000 call was made at approximately 1.47 am.
Police attended the National Archives, located nearby, and obtained CCTV footage showing two people running past the building in the direction consistent with flight from the scene. The footage clock was found to be approximately four minutes faster than actual time, based on a comparison with a detective's iPhone. There was also uncertainty about whether the system clock had been inadvertently reset during the review.
The Crown sought to tender the footage as a piece of circumstantial evidence placing two people near the scene at the relevant time. Both accused objected, arguing the Crown could not establish that the footage was recorded at a time close enough to the shooting to be relevant.
Legal Issues
- Whether the CCTV footage was relevant under ss 55 and 56 of the Evidence Act 1995 (NSW), given the uncertainty about the accuracy of its timestamp
- Whether the footage should be excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Issue 1: Relevance
Schmidt J rejected the accused's submission that the footage was inadmissible for lack of proven timing. The test for relevance under s 55 of the Evidence Act asks only whether the evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue. The footage did not need to carry a verified timestamp to meet that threshold.
The combination of the approximate clock discrepancy evidence and the neighbour's account of hearing runners was sufficient to allow the jury to conclude that the two figures captured on the footage were running past at a time closely connected to the shooting. Uncertainty about the precise timing went to the reliability and weight of the evidence, not its admissibility. Those were questions for the jury.
Issue 2: Section 137 exclusion
Schmidt J applied the approach confirmed in R v Shamouil (2006) 66 NSWLR 228, which requires a court assessing probative value under s 137 to focus on what is open to the jury to conclude, not on whether the jury would in fact find the evidence probative. The court must then weigh that probative value against the danger of "unfair" prejudice, not prejudice in the ordinary sense of damaging an accused's case.
The accused argued that the footage created a false issue: the jury might treat it as depicting the perpetrators even though the Crown could not prove the relevant time. Schmidt J rejected this. The jury would receive directions on how to assess the evidence's reliability, and there was no basis to conclude the jury would give it undue weight or be diverted by a false issue. The court found the footage's probative value was not outweighed by the danger of unfair prejudice, and the objection was dismissed.
Orders Made
- Evidence admissible.
Key Takeaways
- Under s 55 of the Evidence Act 1995, evidence does not need to carry a verified or precise timestamp to be relevant; uncertainty about timing goes to weight and reliability, which are matters for the jury to assess.
- Not all evidence that is prejudicial to an accused falls within s 137. The section targets "unfair" prejudice, and the mere fact that evidence increases the likelihood of conviction does not satisfy that criterion (following R v Yates [2002] NSWCCA 520).
- Applying R v Shamouil (2006) 66 NSWLR 228, the court's task under s 137 is to assess what the jury is open to conclude from the evidence, not to predict whether the jury will actually find it probative.
- A risk that the jury might find evidence unreliable or inconclusive does not, without more, establish the kind of unfair prejudice that requires exclusion under s 137.
- Where concerns about evidence quality can be addressed through jury directions and submissions from the parties, those mechanisms are treated as sufficient safeguards against unfair prejudice.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- 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