Director of Public Prosecutions v Zogheib (Ruling No 3)
[2014] VSC 559
•31 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA ZOGHEIB |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 28, 30-31 October 2014 |
DATE OF RULING: | 31 October 2014 |
DATE OF REASONS: | 5 November 2014 |
CASE MAY BE CITED AS: | DPP v Zogheib (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 559 |
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EVIDENCE – Public interest immunity – Claim by Chief Commissioner of Victoria Police - Disclosure of CCTV footage would disclose identity of confidential police informer - Reversal of ruling due to new circumstances – Immunity not applicable - Evidence Act 2008, s 130.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Chadwick QC | Office of Public Prosecutions |
| For the Accused | Mr Toohey | Melasecca Kelly Zayler |
HIS HONOUR:
These are my reasons for a ruling given on 31 October 2014 rejecting a claim by the Chief Commissioner of Police (‘Chief Commissioner’) for public interest immunity (‘PII’) in respect of certain undisclosed CCTV footage (the ‘undisclosed footage’), disclosure of which will reveal the confidential source of that footage. I previously upheld the PII claim[1] but, as a result of new facts and circumstances, I decided to revisit that ruling and, after hearing further evidence and submissions, ordered the disclosure of the undisclosed footage, subject to a temporary stay in case the Chief Commissioner wishes to appeal.[2]
[1]Director of Public Prosecutions v Zogheib [2014] VSC 550R (27 October 2014).
[2]Ms Fox, who appeared on behalf of the Chief Commissioner, informed me on 31 October 2014 that, upon receipt of my reasons for my ruling on 5 November 2014, a decision as to whether there will be an appeal is likely to be made on the same day.
In my reasons for my original PII ruling,[3] which should be read in conjunction with these reasons, I summarised the prosecution case and set out the relevant provisions and principles in respect of the PII claim. I will not repeat those matters here. Rather, I will simply note that it was central to my earlier ruling that, having regard to the original prosecution summary of opening and the original defence response, there did not appear to be a dispute regarding the prosecution’s claim that Omar Tiba did not discharge his gun during the incident on 10 August 2013. It is now clear that this is not conceded and it is my view that the undisclosed footage adds something significant in that regard, which tips the balance in favour of disclosure.
[3]Director of Public Prosecutions v Zogheib [2014] VSC 550R (27 October 2014).
History of PII claim
It is necessary at this point to set out in some detail the history of the PII claim. On 23 October 2014, the informant, Sergeant Andrew Eyries, when being cross-examined on a Basha hearing, made his PII claim in respect of the undisclosed footage. It was submitted that disclosure of the footage would reveal the confidential source of the footage and that it added nothing of significance to the clearer and more extensive CCTV footage of the incident taken by the accused’s own security cameras (the ‘disclosed footage’). On 24 October 2014, I upheld the PII claim. On the morning of 27 October 2014, I published my reasons for that ruling.
Later, on 27 October 2014, when the informant was again being cross-examined on the Basha hearing, he said that on 13 August 2013, shortly after he completed the first, largely ‘no comment’ record of interview with the accused, and had switched off the tape recorder, the accused told him, amongst other things, that it was members of the Tiba family who were involved in the incident on 10 August 2013 and that he (the accused) had been shot at during the incident. The informant said that conversation was not recorded in his notes or statement. After the lunch break on 27 October 2014, the prosecutor told me that, during the break, a document had been disclosed to defence counsel, being a copy of an email from the informant to another police officer dated 14 August 2013 regarding ‘Investigation Thousands’, which was the name of the investigation into the incident on 10 August 2013. In bullet points, the email noted various things that the accused had told the informant shortly after the record of interview on 13 August 2013, including:
· The persons involved in the shooting were from the TIBA family (Known Middle Eastern Crime Family)
· Stated ‘SANTIAGO’[4] members will know the persons involved
[4]‘Santiago’ being the name of an ongoing investigation into Middle Eastern crime families in the western suburbs.
· Stated in total there were (5) five offenders
· Stated persons involved recently got out of prison
· Stated one of the persons involved is ‘Fat’
· Stated he was shot at[5]…
[5]Emphasis added.
· Stated he was confused as to why they were trying frantically to get into his boot. (WSD447)…
· Stated the vehicle was known to SANTIAGO and not registered to the three guys but they drive it regularly
· Stated this incident is over his current girl-friend Ngarla KING (13/1/1992) MNI: 980960773 (Ex-girlfriend of Zain TIBA)
· Stated he had serious concerns of this incident continuing and the persons involved targeting his parents.
On page two of the email, the informant made certain observations regarding the content of the undisclosed footage:
The CCTV footage shows the offenders in the Station wagon clearly armed and pointing a handgun towards the residence at 1 John Paul Drive, Taylors Hill. The CCTV footage also shows them retreat quickly and the male who is seated in the rear driver’s side and armed wit[h] the handgun takes cover behind the car before getting back in and the vehicle leaves. The CCTV footage suggests a possible exchange of gunfire however no evidence has been located apart from two .32 spent cartridges near where the [sic] and one 9mm unspent round. The only bullet damage was located on ZOGHEIBS vehicle and appears to be .32 cal rather than 9mm and more consistent with coming from the direction of ZOGHEIB than the other males.[6]
[6]Emphasis added.
Upon reading this email, I was struck by the contrast between what the informant suggests can be seen on the undisclosed footage and what the informant’s original confidential affidavit in support of the PII claim suggests can be seen on the undisclosed footage, effectively, nothing of significance.
I was also struck by the fact that the accused told the informant that he was shot at during the incident, an assertion not made in the original defence response. Even though [10] of the original prosecution summary of opening asserted that Omar Tiba, the only one of the four males shown by the disclosed footage to be in possession of a gun, did not discharge his gun, the defence response at [5] and [6] merely says: ‘[s]hort[l]y after he saw the men arrive the accused became aware that at least two of the men were armed with firearms. At all times the accused was in fear of his life and acted in self-defence in whatever he did’. The absence of any suggestion in the defence response that Omar Tiba discharged his gun, combined with the absence of spent 9mm ammunition, the absence of any damage caused by a 9mm bullet, the absence of any muzzle flash on the disclosed footage consistent with Omar Tiba discharging his gun and the contents of the informant’s original confidential affidavit led me to the view that there was no dispute regarding the prosecution’s claim that Omar Tiba did not discharge his gun. The disclosure of the email of 14 August 2013 changed all that.
On 28 October 2014, as a result of indicating that I wished to revisit my decision concerning the PII claim, the informant gave evidence on a voir dire. The Chief Commissioner was again represented by Ms Fox.
Pursuant to questioning by me under s 130(3) of the Evidence Act2008 (Vic) (‘Evidence Act’), the informant outlined his experience with respect to firearms. It is fair to say he has had considerable training in that regard and in the last few years has also had specific training and experience in the use of 9mm handguns. That training and experience with firearms is relevant to the significance to be attached to the observation made by the informant in the email that ‘[t]he CCTV footage suggests a possible exchange of gunfire...’, albeit the email notes other considerations suggesting Omar Tiba’s gun was not discharged.
On 28 October 2014, I also questioned the informant about ‘muzzle flash’. He said that if Omar Tiba had discharged his gun, there would have been muzzle flash, as could be seen with shots fired by the accused. I drew the informant’s attention to the fact that the disclosed footage showed muzzle flash for only four of the five shots attributed to the accused in the prosecution summary of opening. Upon further viewing of the disclosed footage, the informant suggested that, because of the absence of muzzle flash on the disclosed footage for what the prosecution summary of opening asserted was the accused’s first shot, the accused may not have discharged his gun at that point.
In relation to whether Omar Tiba fired his gun, the informant interpreted the absence of muzzle flash on the disclosed footage as significant but suggested that Mr Tierney, the senior forensic officer who had recovered the disclosed footage from the hard drive of the accused’s CCTV recording unit, was the more appropriate person to field questions regarding the disclosed footage. Accordingly, I asked the prosecution to arrange for Mr Tierney to give evidence the following day.
I also asked the informant to prepare a further confidential affidavit overnight explaining what seemed to me inconsistencies between what he said in the email of 14 August 2013 and what he said in his first confidential affidavit about what could be seen on the undisclosed footage.
On 29 October 2014, I was provided with the further confidential affidavit by the informant, which is now kept in a sealed envelope on the court file along with his original confidential affidavit.
Mr Tierney also gave evidence on 29 October 2014. He said that the disclosed footage contains approximately 29 frames per second. He said that the accused’s CCTV system was a relatively inexpensive system and that, because of the amount of data to be processed by the system if there was lots of activity caught on the security cameras, the number of frames could sometimes slow down to as few as two per second. If that happened, ‘glitches’ could appear on the footage, as was apparent on the disclosed footage.
Most importantly, Mr Tierney revealed that in May 2014, using different software, he had recovered from the hard drive of the accused’s CCTV recording unit enhanced footage of the incident on 10 August 2013 (the ‘enhanced footage’). The events recorded were the same, but they were clearer, without apparent ‘glitches’. He had supplied the enhanced footage to the police. Troublingly, I note that the police had not passed it on to either the prosecution or the defence. The enhanced footage was played in court and was obviously superior to the disclosed footage.
Using the enhanced footage, Mr Tierney discussed the significance of the absence of muzzle flash, both in relation to what the prosecution summary of opening alleged was the accused’s first shot and in relation to whether there was a reasonable possibility that Omar Tiba discharged his gun. The thrust of Mr Tierney’s evidence was that he would have expected the enhanced footage to have recorded any muzzle flash whenever a gun was fired, by either the accused or Omar Tiba, but he could not rule out the possibility that a gun had been fired without the muzzle flash being recorded on the footage. He said he did not know how long muzzle flash would last. He also acknowledged, under questioning from Mr Toohey, that objects between a gun’s muzzle and the relevant CCTV camera could obscure muzzle flash. I find that the net effect of Mr Tierney’s evidence is that one cannot safely assume from the absence of muzzle flash on the enhanced footage that Omar Tiba did not fire his gun.
On 31 October 2014, the prosecutor Mr Chadwick QC, having reviewed the original prosecution summary of opening in light of the enhanced footage, indicated the following. First, the prosecution no longer asserted that, during the incident on 10 August 2013, the accused was unaware that Omar Tiba had a gun. Second, the prosecution no longer contended that the accused fired the first shot just as Mohamed Tiba came around the corner of the garage and the accused was standing near the front door of the garage. It was conceded that all the accused had done at that point was point the gun at Mohamed Tiba, which was enough to make him do a hasty about face and head back towards the Holden. Third, the prosecution maintained, as asserted in the original prosecution summary of opening at [10], that Omar Tiba did not discharge his gun.
Submissions of Counsel
In light of these remarks, Ms Fox then made submissions on behalf of the Chief Commissioner as to why I should continue to uphold the PII claim in respect of the undisclosed footage. First of all, Ms Fox acknowledged that the question of whether or not Omar Tiba fired his gun was a live question.[7]
[7]In this regard, Ms Fox took me to the Transcript of Proceedings, Director of Public Prosecutions v Zogheib [2014] (Supreme Court of Victoria, S CR 2014 0098, Beale J, 28 October 2014) 373 (‘transcript’), where I asked Mr Toohey whether the defence took issue with the prosecution’s claim that Omar Tiba did not discharge his gun. Mr Toohey said: ‘[i]t’s difficult to tell you that we don’t take issue with that because things happened, we say, very quickly and we say happened in such dangerous circumstances for Mr Zogheib and he was in such a state of mind he is not able to say.’ I said to Mr Toohey at that point: ‘[y]ou don’t concede, is perhaps another way of putting it, that Omar Tiba never fired his handgun’, to which Mr Toohey replied: ‘[w]e can’t concede it because simply we don’t know...’.
In relation to the informant’s email of 14 August 2013, Ms Fox noted that the email was not a sworn document and that the reference to a ‘possible exchange of gunfire’ was heavily qualified within the relevant paragraph of the email itself.
When discussing muzzle flash, or the absence thereof, Ms Fox relied on Mr Tierney’s evidence that it was unlikely that the enhanced footage would have failed to detect muzzle flash if Omar Tiba had discharged his gun but she also acknowledged that Mr Tierney could not dismiss that possibility.
Ms Fox relied on the enhanced footage as strengthening the argument for non-disclosure of the undisclosed footage. In effect, she submitted that because so much of the incident can be seen on the enhanced footage, there is no need to resort to the undisclosed footage. She relied on the informant’s original confidential affidavit and his further confidential affidavit for the proposition that the undisclosed footage adds nothing of significance to the enhanced footage. Even if it added something of significance, she said the balancing exercise required by s 130 of the Evidence Act still favoured non-disclosure.
Mr Toohey, in reply, stated it was very difficult for him to make submissions without having viewed the undisclosed footage. He submitted that if the undisclosed footage added something of significance, it was imperative that there be disclosure in the interests of a fair trial.
Analysis
The email of 14 August 2013 reveals that the accused told the informant on 13 August 2013, just three days after the incident, that he had been shot at during the incident. Whilst the accused may have been lying, or mistaken, the claim that he had been shot at is not a recent invention. On viewing the undisclosed footage, the informant, a person experienced in the use of firearms, commented in the same email that there was ‘a possible exchange of gunfire’.
One might conclude on the balance of probabilities that Omar Tiba did not discharge his 9mm handgun because no muzzle flash consistent with him discharging his gun is recorded on the enhanced footage, no spent 9mm casings were located[8] and no damage caused by a 9mm bullet was detected at the accused’s premises. But the question is whether there is a reasonable possibility that he fired his gun. Factors which, in my view, tend to support that possibility include:
[8]As for the absence of spent casings, I note that although the accused is alleged to have fired four shots, only two spent .32mm casings were recovered.
· the fact that the accused told the informant on 13 August 2013 that he had been shot at on 10 August 2013;
· the discovery of an unspent 9mm bullet on the shared crossover just near where Omar Tiba got out of the Holden. The informant testified that this is consistent with Omar Tiba having racked the gun, thereby attempting to make it ready to fire;[9]
[9]See transcript, 290.
· the fact that the accused produced and discharged a gun during the incident, which might encourage Omar Tiba to return fire;
· the opinion of the informant, a police officer experienced with firearms, expressed in the email of 14 August 2013, that the undisclosed footage suggests ‘a possible exchange of gunfire’;
· on my viewing of the undisclosed footage, the manner in which Omar Tiba raises and handles the handgun at various stages of the incident in question; and
· evidence of Omar Tiba’s violent tendencies, as shown by his involvement in an incident at a café in Sydney Road just six weeks prior to the incident in question (for which there is also CCTV footage), during which a co-offender discharged a gun.
Conclusion
Having regard to these considerations, I cannot conclude that the possibility that Omar Tiba fired his gun is fanciful. The manner in which Omar Tiba raises and handles his gun on the undisclosed footage adds something of significance to the enhanced footage on this issue. As Ms Fox properly conceded, if Omar Tiba fired his gun during the incident, that will be a significant consideration for the jury in deciding whether the accused acted throughout in reasonable self-defence. I am therefore of the view that the public interest in disclosure of the undisclosed footage outweighs the public interest in preserving the confidentiality of the identity of the source of that footage. For these reasons, I ordered on 31 October 2014 that the undisclosed footage be disclosed, reversing my earlier ruling because of new facts and circumstances.
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