Citation: [2023] NSWSC 167
Court: Supreme Court of New South Wales
Date: 1 March 2023
Judge(s): Harrison J
Background
The accused stands trial for the fatal shooting of a man at a unit block in Dunmore Street on the evening of 30 October 2013. Before trial, the Crown sought to tender CCTV footage from the unit block, but Harrison J excluded it. The Crown was told at that time that it remained free to revisit the question if later events made a renewed tender important.
During the trial, a key Crown witness gave evidence about the positions of herself and the deceased at the time of the shooting, as well as the direction from which shots came. Her account was described as arguably consistent with movements visible in the excluded CCTV footage, though she also gave other versions of events that may be inconsistent with her original account.
The Crown applied mid-trial for leave to re-tender the CCTV footage, primarily to support the witness's first version of events. The accused opposed the tender itself, though not the application for leave to revisit the earlier ruling.
Legal Issues
- Whether the Crown should be granted leave to re-tender CCTV footage that had been excluded in a pre-trial ruling.
- Whether the reasons that led to the original exclusion of the footage remained determinative.
- Whether admitting the footage at the mid-trial stage would cause irreparable forensic prejudice to the accused, given the cross-examination already conducted in its absence.
Decision
Issue 1: Whether original reasons for exclusion remained determinative
Harrison J confirmed that the reasons for the pre-trial exclusion of the footage remained applicable and were still determinative on their own (at [4]). The judgment does not elaborate on those reasons, noting they had been set out in the earlier decision, R v Haile [2023] NSWSC 42.
Issue 2: Forensic prejudice arising from mid-trial tender
The court identified a more fundamental reason to refuse the application. Defence counsel had cross-examined the Crown witness over several days in a manner that was careful and methodical, and had made no reference to the CCTV footage because it had not been part of the Crown case (at [4]). Harrison J accepted that the cross-examination would have been structured differently, and possibly have covered different content, had the footage been in evidence. In particular, the witness's depictions of the relative positions of herself and the deceased would have provided fertile ground for comparison with the accused's movements on the footage (at [4]).
The court found that requiring defence counsel to revisit cross-examination of that witness, after the Crown was permitted to tender the footage, would cause the accused irreparable forensic disadvantage (at [4]). The forensic choices already made by defence counsel were described as reasonable and understandable.
Issue 3: Criticism of the Crown
Harrison J expressly stated that no criticism attached to the Crown for making the renewed application. The court had previously invited the Crown to do so if later events suggested it was warranted, and the witness's various, possibly irreconcilable accounts reasonably revived the Crown's interest in the footage (at [5]).
Orders Made
- The Crown's further application to tender CCTV footage from 30 October 2013 is refused.
Key Takeaways
- Even where a trial judge has invited the Crown to revisit an evidentiary ruling, a mid-trial application to tender previously excluded evidence may be refused on grounds of forensic prejudice where the defence has already structured and substantially completed its cross-examination in the absence of that evidence (at [4]).
- The original reasons for a pre-trial exclusion ruling do not become irrelevant merely because new circumstances arise that prompt a renewed tender; those reasons may remain independently determinative (at [4]).
- Irreparable forensic disadvantage to the accused can arise not only from what evidence is admitted, but from the timing of admission relative to the forensic choices the defence has already made and acted upon (at [4]).
- No adverse inference or criticism attached to the Crown for making the renewed application, where the court had expressly left open the possibility of such an application and the witness's evidence gave reasonable grounds to pursue it (at [5]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- R v Haile [2023] NSWSC 42