AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 17 March 2022

Huynh v R

[2022] NSWCCA 60

Assault & violencePublic order & justice offences
APPEAL CCTV FOOTAGE ASSESSMENT OF RELEVANCE NO QUESTION OF PRINCIPLE

Citation: Huynh v R [2022] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 17 March 2022
Judges: Beech-Jones CJ at CL; Bellew J; Ierace J

Background

The respondent stood trial in the District Court at Parramatta on four counts, including wounding with intent to cause murder, possession of an offensive weapon, and assault occasioning actual bodily harm. The charges arose from two separate incidents in August 2018 at Canley Vale. The Crown alleged the respondent stabbed one man in a residential unit and, three nights later, confronted and assaulted another man at a nearby restaurant.

The Crown's identification case rested on a combination of witness evidence and circumstantial physical evidence. Two witnesses had provided police statements identifying the respondent, but both had since withdrawn or were expected to withdraw those identifications in court. The remaining circumstantial evidence included a distinctive bicycle seized from the respondent's premises and a cap found at the crime scene bearing the respondent's DNA.

The third item of circumstantial evidence was a compilation of CCTV footage from cameras along Canley Vale Road and Railway Parade on the evening of the stabbing. Following a two-day voir dire, the trial judge excluded that footage under sections 56, 135, and 137 of the Evidence Act 1995. The Crown appealed that ruling under section 5F(3A) of the Criminal Appeal Act 1912, seeking urgent determination as the trial was still running.

  • Whether the CCTV footage compilation was relevant under section 56 of the Evidence Act 1995
  • Whether the trial judge erred in exercising discretion to exclude the footage under section 135 (general discretion to exclude unfairly prejudicial evidence) and section 137 (mandatory exclusion where probative value is outweighed by unfair prejudice to the defendant)
  • Whether the threshold requirement under section 5F(3A) of the Criminal Appeal Act 1912 was satisfied, permitting the Crown to bring the interlocutory appeal at all

Decision

The Court of Criminal Appeal, delivering judgment ex tempore at the conclusion of argument, allowed the Crown's appeal and set aside all three exclusion rulings. Beech-Jones CJ at CL (with Bellew J and Ierace J agreeing) found the trial judge had erred in excluding the CCTV compilation.

The CCTV footage depicted a person riding a bicycle along streets in Canley Vale on the evening of 28 August 2018. It appeared to show that person entering the property where the stabbing occurred at around the relevant time, and later leaving without what had appeared to be a hat. The bicycle shown was capable of being identified as resembling the distinctive bicycle found at the respondent's premises. Taken together with the cap bearing the respondent's DNA, the footage was capable of placing the respondent at the scene at the relevant time. That was sufficient to satisfy the relevance threshold.

On the discretionary exclusion provisions, the Chief Judge found the trial judge had not correctly assessed the probative value of the footage against any unfair prejudice. Without the CCTV footage and the bicycle evidence, the Crown case was characterised as weak, relying substantially on out-of-court statements the witnesses had disavowed. The CCTV footage, if admitted and accepted, would materially strengthen that case, even if the resulting Crown case would still not be described as strong.

The Court declined, however, to order formal admission of the footage at this stage. It held that admission should occur only after Detective Keighran provided a proper explanation of how the compilation was assembled and identified the locations depicted. The Court also noted that the detective's opinions about the cause of the time discrepancies between segments, and his interpretive observations about what the footage otherwise showed, were irrelevant and should not be led.

Orders Made

  • Appeal allowed
  • Ruling of 14 March 2022 excluding the CCTV compilation under section 56 of the Evidence Act 1995 vacated
  • Ruling of 14 March 2022 excluding the CCTV compilation under section 137 of the Evidence Act 1995 vacated
  • Ruling of 14 March 2022 excluding the CCTV compilation under section 135 of the Evidence Act 1995 vacated

Key Takeaways

  • The Court of Criminal Appeal confirmed that CCTV footage forming part of a circumstantial identification case can satisfy the relevance threshold in section 56 of the Evidence Act 1995 even where there is no direct witness identification and the footage shows only indirect links to the accused.
  • Assessing probative value under sections 135 and 137 requires the trial court to evaluate what the evidence is capable of rationally establishing when viewed alongside the other available evidence, not in isolation.
  • Where eyewitnesses have disavowed prior identification statements, the remaining circumstantial evidence carries greater relative weight in the section 137 balancing exercise.
  • Compilation CCTV evidence may be admissible while the opinion evidence of the compiling officer about interpretive matters (such as explaining time discrepancies between segments) remains inadmissible; the two questions are distinct.
  • Under section 5F(3A) of the Criminal Appeal Act 1912, the threshold for a Crown interlocutory appeal is met where the excluded evidence, if admitted and accepted, would materially strengthen an otherwise weak prosecution case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33(1)(a), 33(1)(b), 59(1)
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 38, 56, 135, 137

Cases:
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14