Citation: R v Tabbah; R v Tiriaki (No 5) [2014] NSWSC 568
Court: Supreme Court of NSW
Date: 28 April 2014
Judge(s): Schmidt J
Background
Two accused faced a criminal trial arising from the shooting of a named victim. As part of the Crown's case, CCTV footage from cameras located near the victim's home was tendered, showing two individuals running past the location shortly after the shooting. This footage became exhibits 30 and 31.
The admissibility of the footage had already been contested and resolved in an earlier ruling (No 4 in this series). After viewing more extensive CCTV footage (exhibit V7), the accused renewed their challenge, arguing that the Crown could not establish the footage's relevance on the balance of probabilities.
The renewed challenge centred on a discrepancy in the timestamps recorded by the CCTV system. Exhibit V7, recorded by the same camera in daylight hours after the shooting, showed the system's clock changing dramatically, raising doubt about whether the time recorded on exhibits 30 and 31 accurately reflected when the footage was captured.
Legal Issues
- Whether the Crown could establish, on the balance of probabilities under s 142 of the Evidence Act 1995 (NSW), that exhibits 30 and 31 were relevant to the time of the offence.
- Whether the presumption in s 146 of the Evidence Act 1995 (that a device or process produces a particular outcome if it ordinarily does so when properly used) had been displaced by the evidence of the time change shown in exhibit V7.
- Whether exhibits 30 and 31 remained admissible notwithstanding the demonstrated inaccuracy of the CCTV system's clock.
Decision
Issue 1: Displacement of the s 146 presumption
Schmidt J accepted that the presumption under s 146, as to the accuracy of the time recorded by the CCTV system, had been displaced. Three witnesses, two detectives and a Mr Stevens from the National Archive, gave evidence that when they inspected the system shortly after the shooting, they found the recorded time was approximately four minutes out. The detectives established this by checking against their mobile phones, and Mr Stevens corroborated their account.
Issue 2: Accuracy of the mobile phones as time-checking devices
The Court noted that s 146 also raises a presumption in favour of the mobile phones used to check the CCTV time, since mobile phones are devices that, if properly used, ordinarily display accurate time. No evidence was adduced sufficient to displace that presumption.
Issue 3: Effect of the exhibit V7 time change
The dramatic time change visible in exhibit V7 demonstrated that the CCTV system's clock was unreliable. However, Schmidt J held this did not render the earlier footage (exhibits 30 and 31) irrelevant or inadmissible. The evidence from the three witnesses established that, at the time the relevant footage was captured, the clock was only about four minutes out. The footage was therefore recorded in close proximity to the time of the shooting, making it relevant under s 55 of the Act.
Issue 4: Renewed admissibility application
The renewed application to exclude exhibits 30 and 31 as irrelevant was refused. The established four-minute discrepancy did not undermine the footage's connection to the period immediately following the shooting, and the evidence supported the Crown's case that the footage captured the two alleged assailants.
Orders Made
- Evidence admissible.
Key Takeaways
- Under s 146 of the Evidence Act 1995 (NSW), the presumption that a device produces a particular outcome can be displaced by evidence raising sufficient doubt, including witness testimony about observed malfunctions or inaccuracies.
- Where the s 146 presumption is displaced for one device (a CCTV system), a separate and independent s 146 presumption may still apply to other devices used to verify the first device's output, such as mobile phones used to check a CCTV timestamp.
- A demonstrated inaccuracy in a CCTV system's clock does not automatically render earlier footage from that system irrelevant or inadmissible; the question is whether, on the evidence as a whole, the footage was captured at a time relevant to the proceedings.
- Corroborating witness evidence from multiple observers, established through cross-reference to independent devices, can be sufficient to resolve uncertainty about device-generated timestamps and satisfy the relevance threshold under s 55 of the Evidence Act 1995.
- Renewed applications to exclude evidence already admitted will be assessed against the full evidentiary picture, including any new material adduced after the initial ruling.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Tabbah; R v Tiriaki (No 4)