Director of Public Prosecutions v SA & Ors (Ruling No 1)

[2023] VSC 387

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0258
S ECR 2022 0260
S ECR 2022 0262
S ECR 2022 0264

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
SA	Accused
PM
QM
SY

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2023
DATE OF RULING:	10 July 2023
CASE MAY BE CITED AS:	DPP v SA & Ors (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2023] VSC 387

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CRIMINAL LAW – Ruling – Admissibility of numbering placed on CCTV imaging – Identity – Relevance – Opinion evidence – Smith v The Queen (2001) 206 CLR 650 – Aide memoir.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Churchill with Mr J Manning	Office of Public Prosecutions
For SA	Mr J Desmond with Ms M Brown	KPT Legal Pty Ltd
For PM	Ms S Lacy with Ms D Price	Stary Norton Halphen
For QM	Mr J Saunders	Ajak Wolan & Associates
For SY	Ms A Cannon	Chester Metcalfe & Co

HER HONOUR:

1. The accused SA, PM, QM, and SY are each charged with the murder of Declan Cutler (‘the deceased’) on 13 March 2022 at Reservoir.[1] The charge is to be the subject of a judge-alone trial before me commencing in mid-July.

   [1]Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534.

1. The fatal assault on the deceased was captured on closed-circuit television (‘CCTV’) footage from premises located at 204 Elizabeth Street, Coburg. I have viewed this footage in its unedited form. The prosecution described the CCTV footage as depicting three ‘waves’ of the assault as follows:

(a)   2:28:35am to 2:29:44am depicting eight persons in addition to the deceased (‘the first wave’);

(b)  2:30:00am to 2:30:30am depicting four persons in addition to the deceased (‘the second wave’); and

(c)   2:31:45am to 2:23:05am depicting one person in addition to the deceased (‘the third wave’).

1. The prosecution contends that the four persons depicted in the second wave are persons who were present in the first wave and that the person depicted in the third wave was present in the first and second waves.

1. The prosecution seeks to adduce into evidence the CCTV footage with numbering superimposed on or over the figures in the footage. QM and SA challenge the admissibility of the edited CCTV footage.

1. As I am the trial judge who will ultimately decide the facts at trial I have deliberately quarantined myself from having regard to any material which may be evidence in the trial, other than material that the parties have required me to have regard to. I have not viewed the numbered version of the CCTV footage. However, I was provided with and have viewed the relevant portions of the unedited version of the CCTV footage.

1. It was not in dispute that the numbering applied to the first wave follows the chronological order in which each of the persons, other than the deceased, appear in the footage and reach the deceased. Throughout the first wave, the same numbering system follows the relevant persons as they move about the scene.

1. In particular contention is the numbering of the persons in the second and third waves of the assault. After the first wave by 2:29:46am, each of those eight persons are no longer visible on screen. Between 2:30:00am and 2:30:30am four of them return to the deceased — the second wave — and, in the numbered version of the footage, are labelled with what is purported by the prosecution to be the same number allocated to them in the first wave. After each of those four persons move off screen, the third wave commences and one person on the numbered version of the CCTV footage is labelled with a number said to correlate to the number of that person in the first and second wave.

1. Relying primarily on the High Court’s decision in Smith v The Queen,[2] SA and QM contend that the numbered version of the CCTV footage is inadmissible as it is either irrelevant or opinion evidence. While SA objects to the numbered footage in its entirety, QM’s challenge extends only to the numbering applied to the second and third waves of the assault upon the deceased. Following argument, counsel for PM adopted the submissions made on behalf of QM. Counsel for SY indicated that she had nothing to add as SY — who has admitted that he participated in the assault on the deceased — does not participate beyond the first wave.

   [2](2001) 206 CLR 650.

1. In Smith v The Queen,[3] the accused was indicted on a charge of robbery of a bank and two police officers who had previously dealt with the accused gave evidence at trial that one of the individuals depicted in CCTV photographs was the accused. The High Court held that the evidence of the police officers was inadmissible. The plurality, Gleeson CJ, Gaudron, Gummow and Hayne JJ, held that the evidence of the police officers was irrelevant. Their Honours stated:[4]

The question of the relevance of the evidence of the police officers may be approached in this way. The fact in issue was, as we have earlier said, ‘Is the person standing trial the person who is depicted at the right-hand side of some of the photographs tendered in evidence?’ Is an assertion, in evidence, by a witness that he now recognises or has previously recognised, the person who is depicted in those photographs as the accused, relevant evidence? That is, in the language of s 55 of the Evidence Act, could that evidence, if accepted, rationally affect the assessment by the jury of the probability that it is the person standing trial who is depicted in the photographs?

Because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, not hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision maker permitting substitution of the view of another, for the decision-maker’s own conclusion.

In this case the evidence of the police was irrelevant and should not have been received. No question of admissibility had to be considered.

[3]Ibid.

[4]Ibid 655–6 [10]–[12].

1. Kirby J was of the view that the evidence was relevant but it was inadmissible opinion evidence.[5]

   [5]Ibid 668-9 [57].

1. The prosecution’s written submissions identify that the numbered version of the CCTV footage arose in the following circumstances described in a statement by Detective Senior Constable Jack Hubbard (‘Hubbard’):[6]

[3] On 13^th March, 2022, I was provided with CCTV footage showing the death of [the deceased]… I was tasked with extracting a portion of this footage and numbering the persons present in the CCTV to assist with enquiries. I tagged the person to be the deceased as well as 8 other persons who were present.

…

[16] On 1^st April, 2022, I was tasked with adding a longer portion of CCTV onto the original numbered CCTV footage showing the offending.

[6]Prosecution Submissions – Pre-trial – CCTV Numbering dated 26 June 2023, [5] quoting Statement of DSC Jack Hubbard, pp 692 and 694 of the Hand Up Brief. The Court has not seen this statement other than the extract set out in the prosecution’s submissions.

1. The unnumbered footage shows a chaotic scene, particularly during the first wave of the assault where eight individuals are participating in the assault and moving around the screen. Despite the chaotic nature of the events, it is possible to follow the movements of the individuals while they are visible on screen.

1. However, the CCTV footage is in greyscale and not particularly clear. While the footage clearly shows eight individuals entering the screen at the commencement of the footage, each of those individuals depart the screen at differing points. I consider the exercise of determining whether an individual who exits the screen and re-enters is a particular individual necessarily requires close analysis and an opinion about the identity of the assailants. That is, determining which of the persons who departs is the one who re-enters the screen.

1. Having viewed the unnumbered CCTV footage, I am of the view that I will be able to undertake the task of viewing the CCTV footage and determining the movements of each of the individuals who appear on the screen as well as determining whether those who re-emerge during the second and third waves of the assault are the individuals who were present during the first wave. I consider Hubbard’s view on the movement of the individuals on the footage, both as they move around the frame and off the frame, irrelevant.

1. Even if the numbering could be said to be relevant and of assistance, the numbering — and thus identification, of individuals who re-emerge onto the screen after moving out of view of the camera — requires the making of inferences, evaluations, interpretations, or beliefs. As such this aspect of the numbering in the footage is properly characterised as opinion evidence and is accordingly inadmissible under s 65 of the Evidence Act 2008 (Vic).[7]

   [7]The prosecution did not suggest that Hubbard had any qualifications or experience which would bring him into an exception to the opinion rule in relation to this evidence.

1. However, given the chaotic nature of the scene during the first wave, the numbering during the first wave, which identifies the assailants in the order they appear in frame, could provide a convenient aid for following and understanding the footage.

1. With the exception of SA, all parties agreed that the numbered footage of the first wave of the assault would assist the Court and aid in comprehension of other evidence which is to be led.

1. In relation to the use of the numbered CCTV, the prosecution contends that it can be admitted as an aide memoire and refer to the legislative basis of this use.[8]

   [8]Evidence Act 2008 (Vic) s 29(4); Criminal Procedure Act 2009 (Vic) s 223.

1. The prosecution contends that there is no unfair prejudice or inherent unfairness in the use of the numbering system as an aide memoire as:

(a)   the mode of trial is by judge alone, and the Court can properly assess the limits of the use of the aid and the overriding need to undertake an analysis of the underlying evidence relied upon by the prosecution; and

(b)  the nature of QM and SA’s defence is that they were not present at the crime scene at the time of the fatal assault, and it appears to be neither accused’s case that he is depicted in one of the waves but not another or performs a particular act but not another, nor that any level of misattribution within a wave has any relevance to their defences.

1. While the prosecution described the first wave as occurring from 2:28:35am to 2:29:44am, on viewing the footage it appears that there are still instances of identification which would be made if the numbering throughout the whole first wave was admitted as an aide memoire. In particular, during the first wave the unedited footage shows that:

(a)        between 2:28:35am and 2:28:41am, the deceased and eight assailants enter from the left of screen and thereafter the assault on the deceased commences;

(b)       at ~2:28:47am, one of the eight assailants goes out of view to the left of the screen (thus the seven assailants remain visible);

(c)        at ~2:28:56am, another of the assailants goes out of view to the left of the screen (thus six assailants remain visible);

(d)       at ~2:29:02am, an individual enters from the left of screen (thus six of the initial assailants and this individual are then visible);

(e)        at ~2:29:15am, another individual enters from the left of screen (thus six of the initial assailants and two other individuals are then visible); and

(f)        at ~2:29:26am four of the individuals go out of view on the left of screen and by 2:29:44am the remaining four individuals have all gone out of view to the left of screen leaving only the deceased visible.

1. I consider that the numbered footage of the commencement of the assault can be used by the prosecution as an aide memoire. Such numbering aids in comprehension of a chaotic scene, nothing more. The numbering of the individuals would also aid the comprehension of the evidence by providing a convenient shorthand, for counsel and the Court, by which the persons in the video can be referred to throughout the course of the trial. The numbering of the commencement of the assault simply labels the eight individuals as they enter the frame and does not itself seek to identify the identity of the individuals.

1. However, the numbering should only be applied for each individual until they first depart the screen. I will not admit any numbering applied to individuals who appear to re-emerge on screen as an aide. Thus while the individual who departs the screen at 2:28:47am can be numbered until that time, numbering should not be applied to the individuals who enter view at 2:29:02am and 2:29:15am. That would involve the task of identification which is one which I will be required to undertake myself. For example, I will be required to decide whether those individuals who enter the screen after the commencement of the first wave are appearing for the first time or are individuals who had participated in the initial stages of the assault before moving out of view.

1. I also note that throughout the period of the first wave the deceased is often obstructed. However, as his location can be readily inferred, the ‘tagging’ of the deceased described in Hubbard’s statement, although not explained to the Court, would appear to be unnecessary to aid the comprehension of the evidence.

1. Counsel for SA submitted that explanatory material of this type is only made use of by the Court when the subject matter is uncontroversial and agreed to. However, I do not accept that an aide memoire must be subject to agreement between the parties.[9] While all parties may not consent to the introduction of the numbering in the commencement of the assault as an aide memoire, I do not accept that it would be productive of any prejudice or unfairness.

   [9]See, eg, R v Georgiou [2005] NSWCCA 237; R v Giovannone [2002] NSWCCA 323, [62] (Mason P); Butera v DPP (Vic) (1987) 164 CLR 180, 190 (Mason CJ, Brennan and Deane JJ).

1. I therefore allow the admission of the CCTV with the numbering of the assailants in the order they appear on screen, from the commencement of the assault until they each move out of view, as an aide memoire.

1. This ruling will not preclude the parties, in their closing addresses, from numbering the assailants at later stages of the footage to illustrate any inferences they are seeking the Court to draw.