R v Hawi (No 27)

[2011] NSWSC 1673

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 27) [2011] NSWSC 1673
Hearing dates:	29 - 30 August 2011
Decision date:	01 September 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application to exclude or limit the use of certain video evidence in the case concerning the accused Kisacanin refused
Catchwords:	CRIMINAL LAW - evidence - judicial discretion to exclude or limit use of evidence - mandatory exclusion of prejudicial evidence - video footage - evidence is not misleading or confusing and does not give rise to unfair prejudice
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Hawi & ors (No 19)
Category:	Procedural and other rulings
Parties:	Regina Zoran Kisacanin
Representation:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr J Gordon (Accused) Solicitors: Solicitor for Public Prosecutions Elie Rahme & Associates
File Number(s):	2009/75184; 2009/127777

Judgment

1. HIS HONOUR: This judgment is concerned with a number of issues raised on behalf of the accused Kisacanin relating to certain video evidence. It concerns what has been referred to in the trial as the "Deng footage" and the "Watermark footage".

Submissions re the Deng footage on 15 August 2011

1. On 15 August 2011 Mr Gordon of counsel made submissions to the effect that there was no case to answer in respect of his client, the accused Kisacanin. In the course of dealing with that issue the Crown Prosecutor outlined the evidence upon which the Crown relied in support of its contention that there was a case to answer.

1. Reference was made by the Crown Prosecutor to the evidence of a Qantas staff member (Redford) who claimed to have seen a man pick up a bollard and swing it (T948.8). She said that this man was wearing a grey singlet and that he had tattoos. In cross-examination by Mr Gordon, the witness said that there were tattoos on both arms (T956.37). Mr Kisacanin was wearing such a singlet but he did not have tattoos. The Crown Prosecutor indicated that she proposed to submit to the jury that the witness may have been mistaken about the tattoos but correct about the singlet. It is possible that the jury might accept such a submission: as to this issue, see R v Hawi & ors (No 19) at [44] - [45].

1. There is other evidence which could support the proposition that Mr Kisacanin used a bollard in the course of the fighting in the departure hall. Footage from security camera 404 shows him coming into view from the left side of the screen carrying a bollard and putting it down.

1. It was in the context of referring to this evidence on 15 August 2011 that the Crown Prosecutor also submitted that there was support for the proposition that Mr Kisacanin used a bollard. This was said to be found in the video footage recorded by a tourist (Deng). This is what I referred to earlier as "the Deng footage". (Exhibit FE is a disc containing the moving footage in its original and various enhanced forms; Exhibit GB contains still images from the footage).

1. It was submitted that a still image recorded 2.36 seconds into the footage is capable of having discerned within it Mr Kisacanin. This is not said to be because facial or body features can be made out. Rather, it is because the figure can be seen to be wearing a white cap and dark shoes. For my part, the image at 2.36 seconds does not show a figure with such features, but an image at 2.56 seconds does (see also the images immediately before (2.52 seconds) and after (2.60 seconds)).

1. In my judgment refusing an application for directed verdicts of acquittal ( R v Hawi & ors (No 19)) , I referred (at [52]) to my own perception of the still images (from 1.88 seconds to 2.88 seconds) as showing a bollard being picked up by a man who is very difficult to make out, probably because he is wearing dark clothing. That man then moves towards the front of the terminal (towards what was likely then to have been the central area of the fighting), very closely followed by the man, who the Crown asserts is Mr Kisacanin, who is also carrying a bollard. This person comes into view with the bollard already held, at an angle that is close to horizontal.

1. On that occasion, Mr Gordon submitted in relation to this evidence that the person depicted was Mr Padovan. However, I was of the view that the image, whilst not very clear, was clear enough for the jury to make a distinction between a person wearing a white hat, grey singlet and dark coloured shoes (Mr Kisacanin) and a person wearing a white hat, no shirt and light coloured shoes (Mr Padovan). This is particularly so in relation to the hat and shoes.

Submissions made on 29 August 2011

1. On 29 August 2011, after the evidence in the trial had closed and before closing addresses commenced, I heard submissions on a variety of issues. Mr Gordon made a number of submissions concerning the Deng footage. It was submitted that I should limit the use which could be made of this evidence pursuant to s 136 of the Evidence Act 1995.

1. A number of matters were put that were said to amount to unfair prejudice. Reference was made to the fact that the Crown had said nothing about any proposed use of the "Deng footage" in the case against Mr Kisacanin until 15 August 2011. Accordingly, Mr Gordon was not aware until that time of any need to deal with it in the defence of his client. Two matters were said to flow from that.

1. First, Mr Gordon did not cross-examine Professor Wu, the expert who analysed and attempted to provide enhanced versions of the footage, in any way that dealt with the ability to discern from the footage what the Crown now contends is an image of Mr Kisacanin (T4098 - 4100). In this respect, reference was made to some evidence given by Professor Wu that " the human visual system has a delay effect" (T2354.14). By this, he meant that the human brain is unable to process what can be seen in moving footage for a short period of time after its commencement.

1. The submission by Mr Gordon on 29 August 2011 that he did not cross-examine Professor Wu as to the extent of this phenomenon is not borne out. Mr Gordon questioned Professor Wu about whether this delay was measurable. He replied that it had been measured as being about 157 milliseconds (T2371.39). Given that the image of the person who the Crown asserts is Mr Kisacanin does not appear until about 2 seconds into the footage, this issue of delay in the "human visual system" is not presently relevant.

1. Mr Gordon also submitted that there was prejudice to the presentation of his client's defence in that if he had been on notice that the Crown were to make the assertion concerning his client being discernible in the Deng footage, he would have taken steps "to try and improve, enhance or enlarge upon the section of the images now said to represent Mr Kisacanin" (T4098.30). In theory, that might be a matter of real concern. In reality, it would only be of real concern if there was a reasonable prospect that taking such steps would achieve something useful. It is apparent from the evidence of Professor Wu, and that given on 29 August 2011 by an expert in forensic photography (Mr Porter) who was called in the case for the accused Abounader, that the quality of the footage is such that it is virtually impossible to achieve anything useful through any process of enhancement or the like.

1. It is of some note that 14 days elapsed between the issue being raised on 15 August 2011 and when evidence was presented in the case for Mr Kisacanin on 29 August 2011. There was no suggestion that Mr Kisacanin's solicitors were frustrated by insufficient time in any attempt to obtain an expert opinion as to the matters to which Mr Gordon referred. In fact, there was no suggestion that any such attempt had been made at all.

1. It is also of some note that following the conclusion of the case for the accused Menzies on Wednesday, 24 August 2011, there was a discussion concerning the future course of the trial (T4025 - 4027). Mr Gordon indicated that he had witnesses to call, but it was resolved to accommodate certain difficulties with their availability by deferring that until the following Monday, 29 August 2011. There was no suggestion on that occasion that there was a need for any further time to be allowed to obtain advice from an expert in relation to the present issue. No application was made then, or since, for further adjournment.

1. The next submission made by Mr Gordon involved a contention that the Deng footage had "very low probative value as to the question of whether Mr Kisacanin used unlawful violence" (T4098.26). I have acknowledged that the quality of the footage, both in moving and still image form, is not good. However, I have also come to the view that it is possible for certain things to be discerned, sufficient for this to be a matter left to the jury. It will, of course, be necessary to give directions to the jury about the care with which they should approach the task of viewing and interpreting this footage (and still images) as well as all of the other security camera footage that is in evidence.

1. When the issue was revisited on 30 August 2011, Mr Gordon foreshadowed a possible application for the jury to be discharged in respect of his client in the event that the jury was going to be permitted to entertain the Crown's submissions concerning Mr Kisacanin and the Deng footage (T4118). He reiterated that he would have wanted to have had "the opportunity of having that examined and blown up and explored to the full, if that's going to be used by the Crown" (T4118.43). In relation to this, I refer to what I have said above about such a course not appearing to be something that would have had a realistic prospect of achieving anything useful, and not something about which it would seem that any attempt has been made to pursue in any event.

1. Later, Mr Gordon made a submission that s 135 and s 137 of the Evidence Act were engaged (T4133.30). No further submission was made as to how that was so, but I assume that reliance was placed upon what had been said previously. Section 137 is the most apt to consider in relation to the contention concerning unfair prejudice. It only requires that the probative value be "outweighed" by the danger of unfair prejudice, rather than be "substantially outweighed". Further, s 137 requires mandatory exclusion of evidence if the conditions are met, whereas it remains a matter of discretion under s 135.

1. I am not persuaded that there is unfair prejudice in the issue being raised so late in the trial for the reasons I have given above. In short, I am not persuaded that anything would be different if the matter had been raised earlier.

1. In relation to the other points raised by Mr Gordon, I do not accept that there is unfair prejudice (ss 135 and 137), or anything misleading or confusing (s 135) that would require the evidence to be excluded. Mr Gordon submitted that the jury would engage in "guesswork" if they were invited to conclude that Mr Kisacanin could be seen in the Deng footage. I do not accept that this is a realistic concern. I have indicated that I will be giving the jury directions about the care with which they must approach evidence of this type. Moreover, it is a matter of commonsense. It would be completely illogical if the jury were to view some footage, or still images, be unconvinced, or doubtful, about the identity of persons depicted, but then make a "guess" as to identity.

1. A final matter to mention in relation to the Deng footage is a proposal by Mr Gordon that the footage could be edited in such a way as to remove the portions upon which the Crown relies in relation to Mr Kisacanin. At one point, Mr Gordon said that "it's the first half second of the CCTV footage that I find offensive" (T4134.32). This gives rise in my mind to the possibility that the difficulty Mr Gordon said he was having in making out from the footage what the Crown contends can be seen was because he had been looking at the wrong portion.

1. The Crown Prosecutor has made it quite clear that she was referring to an image that appears 2.36 seconds from the commencement of the footage (T3680.18). I indicated in my judgment on the no case to answer issue that I thought there was relevant footage (I interpolate that it is best seen in viewing the series of still images) from about 1.88 seconds to 2.88 seconds: R v Hawi & ors (No 19) at [52]. I have since viewed a number of times the footage from 0.0 seconds to 0.5 seconds. It does not appear that there is anything of particular interest in that portion. If Mr Gordon has been troubled about the prospect of the jury seeing the image of a person who is asserted by the Crown to be Mr Kisacanin in the first half second of the footage, then it would appear that he has proceeded upon a mistaken understanding of what the Crown has asserted.

The Watermark footage

1. The Watermark footage concerns material recorded by a security camera installed within the Watermark bookstore in the vicinity of Gate 5. After fighting broke out in that area, some of the participants can be seen to be moving down the terminal concourse past the bookstore. The images are not entirely clear. It is, however, possible to identify certain persons, primarily from their clothing. For example, a man of somewhat portly build who is wearing a rather bright blue shirt can be concluded to have been the prosecution witness Arnold Loto. Mr Loto was wearing a bright blue Hawaiian shirt on the day in question. It seems that the identification of Mr Loto in this footage is common ground.

1. The Crown accepts that Mr Loto is seen in this footage to be pursuing the accused Padovan. There is evidence from a number of witnesses to the effect that the man, who is accepted to be Mr Padovan, was assaulted by a number of men from the Comanchero group in the vicinity of Gate 5.

1. The Crown contends that a man who is seen to be fairly close behind Mr Loto in this pursuit is the accused Kisacanin. It is not suggested that the man can be identified by facial or body features but rather by his clothing and footwear. I indicated in my judgment in relation to the no case to answer issue that I was satisfied that it was open to the jury to draw this conclusion: R v Hawi & ors (No 19) at [23].

1. Mr Gordon's submission in relation to this footage was that it would be "dangerous" to invite the jury to make an identification of Mr Kisacanin from it. He contended that it might very well be unfairly prejudicial, misleading and confusing, or both (T4100.38). One of the distinctive features which the Crown relies upon for the assertion that the man behind Mr Loto was Mr Kisacanin is that the man can be clearly seen to be wearing a white hat. However, as Mr Gordon pointed out, so too was Mr Padovan. There was a danger of the jury confusing the two men and proceeding upon the basis that the man is Mr Kisacanin, whereas there is also the possibility that the man is Mr Padovan (T4100.44).

1. This point can be dealt with briefly. The Watermark footage is not entirely clear, but it is clear enough for the jury to be able to see that Mr Loto is running after a man who must be Mr Padovan. Accordingly, the man wearing a white hat who is seen to be running behind Mr Loto cannot be Mr Padovan. There is other evidence to which I was referred by the Crown Prosecutor which serves to confirm the safety of such a conclusion.

1. I do not see any reason to exclude this material from the jury's consideration, or limit in any way their consideration of the Crown's assertion that this footage shows a man who can be deduced to be Mr Kisacanin involved, with others, in the pursuit of Mr Padovan.

Conclusion

1. I do not propose to exclude any of the evidence in the Deng and Watermark footage.

1. I do not propose to impose any limit upon the jury's consideration of the evidence in the manner suggested.

1. I reiterate that I propose to give the jury directions about the care with which they must approach the task of viewing, analysing and drawing conclusions from all of the video footage that is in evidence.

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Decision last updated: 14 February 2012