R v Aboukhalil (No 2) - [2019] NSWDC 799

District Court

New South Wales

Medium Neutral Citation: R v Aboukhalil (No 2) [2019] NSWDC 799
Hearing dates: 15 May 2019
Date of orders: 15 May 2019
Decision date: 15 May 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
Decline to admit the transcript or sound recording of CCTV footage.

Catchwords: CRIMINAL LAW – security device - CCTV sound recording – transcript of sound recording - apartment block – hallway – residential common area - private conversations - whether parties to conversation ought reasonably to have expected that it might be overheard
Legislation Cited: Evidence Act 1995, s 135, s 137, s 138
International Covenant on Civil and Political Rights, item 17
Surveillance Devices Act 2007, s 4, s 7
Cases Cited: La Trobe Capital and Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4
Masri & Masri [2017] FamCA 539
Right v Stevens [2009] WASC 102
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Category: Procedural and other rulings
Parties: Regina
Ibrahem Aboukhalil (Accused)
Representation:
Counsel:
Mr C Evans (Crown)
Mr T Hughes (Accused)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Elie Rahme & Associates (Accused)

File Number(s): 2017/242685
Publication restriction: None

Judgment

On the Crown case, Zachary Kennedy gave an account to police of being waved down by a man as he was driving at about 7.30pm. When Mr Kennedy stopped, two men got into the car, one in the front passenger seat and one behind that passenger. The man in the front passenger seat pointed a gun at Mr Kennedy and the man in the rear held a large knife against Mr Kennedy’s chest. As Mr Kennedy withdrew his foot from the brake, the car began to roll forward and he escaped from the car, although he was wounded by the knife in the process. Another man confronted Mr Kennedy outside the car. Mr Kennedy managed to run away. The three men and a fourth drove away in the car.
Four men were charged with robbery of the car with wounding, alternatively, wounding, and assault with intent to take a motor vehicle. The accused, Mr Ibrahem Aboukhalil, pleaded guilty to the alternative count of assault with intent to take a motor vehicle. The Crown has not accepted that plea. The primary issue in the trial seems to be whether the Crown can prove that the accused was involved in the common purpose of assaulting Mr Kennedy with the knife, causing the wounding.
The issue in this application on the voir dire is whether certain audio recordings should be admitted into evidence. The recordings were made by a CCTV security system in the hallway, adjacent to the lift doors on the floor of the apartment building where Mr Aboukhalil lived. It recorded the moving visual images and the conversations of three of the men, including Mr Aboukhalil, shortly before the incident with Mr Kennedy as well as conversations between the four men after the incident. There is no objection to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Aboukhalil (No 2)

Details

AGLC: R v Aboukhalil (No 2) [2019] NSWDC 799
Case: [2019] NSWDC 799
Decision Date: 15 May 2019

CaseChat Overview and Summary

The case of R v Aboukhalil (No 2) arose in the context of criminal proceedings, where the defence sought to introduce a transcript and sound recording of CCTV footage. The footage captured a conversation in the hallway of an apartment block, which the defence argued should not have been admitted as evidence due to the private nature of the conversation. The court had to determine whether the parties involved in the conversation could reasonably expect their conversation to be overheard in such a setting.

The central legal issue before the court was whether the conversation, which took place in a residential common area such as a hallway, should be considered private. The defence argued that conversations in such areas ought reasonably to be expected to remain private, thus making the evidence inadmissible. The prosecution contended that the public nature of the hallway meant that no reasonable expectation of privacy existed.

The court held that the hallway, being a common area of an apartment block, did not provide a reasonable expectation of privacy for the parties involved. It was reasoned that the nature of the location, being a shared space, meant that individuals could not reasonably expect their conversations to remain private. Consequently, the court declined to admit the transcript or sound recording of the CCTV footage as evidence. This decision underscored the principle that individuals in public or semi-public areas cannot reasonably expect their conversations to be entirely private.

Orders

Orders of the court

Decline to admit the transcript or sound recording of CCTV footage.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Aboukhalil (No 2) [2019] NSWDC 799
Hearing dates:	15 May 2019
Date of orders:	15 May 2019
Decision date:	15 May 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	Decline to admit the transcript or sound recording of CCTV footage.
Catchwords:	CRIMINAL LAW – security device - CCTV sound recording – transcript of sound recording - apartment block – hallway – residential common area - private conversations - whether parties to conversation ought reasonably to have expected that it might be overheard
Legislation Cited:	Evidence Act 1995, s 135, s 137, s 138 International Covenant on Civil and Political Rights, item 17 Surveillance Devices Act 2007, s 4, s 7
Cases Cited:	La Trobe Capital and Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 Masri & Masri [2017] FamCA 539 Right v Stevens [2009] WASC 102 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Category:	Procedural and other rulings
Parties:	Regina Ibrahem Aboukhalil (Accused)
Representation:	Counsel: Mr C Evans (Crown) Mr T Hughes (Accused) Solicitors: Office of Director of Public Prosecutions (Crown) Elie Rahme & Associates (Accused)
File Number(s):	2017/242685
Publication restriction:	None