R v Hawi (No 29)

[2011] NSWSC 1675

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 29) [2011] NSWSC 1675
Hearing dates:	28 September 2011
Decision date:	31 October 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application to discharge jury refused
Catchwords:	CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - prejudicial to accused - evidence of camera times analysis flawed - whether advising jury that submission based on evidence proceeded on mistake premise is prejudicial - whether counsel's credibility undermined
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: On Wednesday, 28 September 2011, Mr Gordon, counsel for the accused Kisacanin, made an application that the jury be discharged in respect of his client.

1. After some consideration of this issue, I indicated that the application to discharge the jury was refused and that I would give reasons at a later time. I now formally do so.

1. The basis for the application was as follows:

• the jury will be told that a submission made to the jury by Mr Gordon, concerning a short video recording made by a tourist, Ms Deborah Deng (the "Deng footage" - Exhibit FE), was made without sound foundation;
• as a result, the jury will form an adverse view of Mr Gordon's credibility; and
• as a consequence, the jury might not accept any other submission made by Mr Gordon (SU 322).

1. This was said to give rise to prejudice necessitating a discharge of the jury.

1. In order to explain the basis of the application, it is necessary to trace a rather convoluted path through the history of the trial and the evidence that is before the jury.

Mr Gordon's submission on the Deng footage

1. The Crown case concerning the accused Kisacanin is, in part, that he participated in the riot in the departure hall by wielding a bollard. In support of that proposition, the Crown referred to the Deng footage and submitted that there can be seen, albeit not very clearly, an image of a person with a bollard who was consistent in appearance with being Mr Kisacanin. This was said to be something that could be seen more clearly in the still images taken from the footage (Exhibit GB) in the period 1.88 to 2.88 seconds after the footage commenced.

1. As to the specific evidence the Crown relied upon for its assertion that Mr Kisacanin was involved in the riot, the Crown Prosecutor concluded her submissions in this way:

So what we say to you, members of the jury, is that if you combine the footage [from camera 402] of Mr Kisacanin running out the front [of the check-in counters] ..., the evidence of Mr Ireland and Ms Harris is that he ran [back] behind the counters, ... at a time [when] the fighting was or had started, and combine that footage, the Deng footage, with the [camera] 404 footage of him putting the bollard down and perhaps, it's a matter for you, the description by Renee Redford [of seeing a man, who appeared in some respects similar to Mr Kisacanin, pick up a bollard and swing it]. The Crown says Mr Kisacanin was involved in the riot by wielding a bollard in the way depicted in that footage.(T4177)

1. Mr Gordon countered the assertion that his client appeared in the Deng footage by submitting, in effect, that Mr Kisacanin could not have been in two places at once (T4484). His reasoning was this:

• An image of the left side of a man appears at the extreme edge of the screen in footage from camera 404 at 1:41:16pm and 1:41:17pm (see Exhibit 48). What can be seen of that man is consistent with him being Mr Kisacanin. He can be seen to have nothing in his left hand.
• The Deng footage, by comparison with footage from camera 402, can be said to have run from about 1:41:25pm until 1:41:41pm.
• According to Inspector French, camera 404 is not synchronised with camera 402 in terms of time. An appropriate adjustment by adding 8 to 10 seconds to camera 404 times needs to be made.
• Therefore, the Deng footage can be said to have run from about 1:41:17pm (8 second adjustment) or 1:41:15pm (10 second adjustment) in camera 404 time.
• If Mr Kisacanin is alleged to appear in the Deng footage some 2 to 3 seconds from when it commenced, that would be from 1:41:17pm to 1:41:18pm.
• Mr Kisacanin cannot at the same time have been in the location of the person said to be carrying a bollard in the Deng footage and to have had nothing in his left hand and been in the area picked up by camera 404.

1. One of the assumptions made in this analysis was that it was appropriate to make the 8 to 10 second adjustment in order to equate what can be seen in camera 404 footage with camera 402 footage and, in turn, the Deng footage. That assumption has now been shown to be invalid.

The invalid assumption

1. The assumption that camera 404 was 8 to 10 seconds behind camera 402 was based on an analysis of camera times conducted by Inspector French.

1. Inspector French has been the officer in charge of the matter on behalf of the police. On 10 March 2010, he tried to analyse the times displayed in the footage from various security cameras installed in the departure hall of the terminal. He did this by trying to identify persons who were visible in the footage from multiple cameras and then comparing the time and location at which the persons were seen. To put it shortly, if he saw the same person in the same location in footage from two different cameras, he then compared the time that was displayed in the footage to determine if the cameras were synchronised in time or not. If they were not, he then determined the extent to which they were not.

1. Inspector French's analysis was set out in a document that was served upon the representatives of the accused. It was clear that no expertise was brought to bear in the exercise. I was informed by the Crown Prosecutor that when the document was provided to defence representatives by email on 5 August 2011, there was a suggestion that the comparison should be carried out by themselves.

1. Inspector French was called to give evidence on 11 August 2011. Mr Dunn QC, appearing with Mr Grant for the accused Hawi, tendered Mr French's document (Exhibit 36) (T3593). The transcript of re-examination of Inspector French records the following:

Q. Might the witness have access to exhibit 36, please. (Shown). Now, is this a document that you prepared?

A. Yes, it is.

Q. Could you please just explain to the jury what it is?

A. It's my analysis of the cameras. I just sat there and what I did was I viewed a gentleman as he walked from camera 404 which is a point away from where those bi-fold doors were, and just viewed him as he passed through the back of the, behind the check-in counters, and at certain points where there was a cross-over between cameras, I noted the difference in time between the cameras. That was the totality of the exercise.

Q. In your view, is that a fool proof way of correlating the times?

A. With my technical ability, probably not, but I think it is - that was a good comment. Yes, I'm pretty confident that the times were right and there was one concern because one camera was out markedly and that was the camera 411, I believe, from memory. That was a concern to me. When you look at the cameras, it is like 32 seconds out.

Q. You described in this document how you performed that?

A. Yes.

Q. Are you in any better position than Mr Young [counsel for the co-accused Eken]?

A. No.

Q. Or the members of the jury to perform that?

A. No, no, that's my technical ability. I think others could do the same thing.

HIS HONOUR

Q. Is it a bit time consuming, though?

A. No, actually it's not. It is not. If you actually - because the times are there and I did it again just recently just to refresh my memory on the process. As long as you know the times and you can do it, it is probably best done with two computers side by side, if you had that facility, that is the better way to do it, because then you could follow the cross-over point. That's what I did on the previous, the most recent occasion, it was quite a quick task. (T3623 - 3624)

1. My summing up to the jury commenced on Wednesday, 21 September 2011. On Monday, 26 September 2011, I raised with Mr Conwell, counsel for the accused Padovan, an issue in relation to one of his submissions to the jury which was also based upon a comparison of events between different cameras. It seemed to me that Mr Conwell had neglected to take into account the 8 to 10 second time differential between camera 404 and other cameras (SU 198 - 199).

1. Overnight, Mr Conwell carried out a very detailed analysis of the timing of the footage from the various cameras. He concluded that Inspector French's analysis was flawed. He informed the Court of this the following morning (SU 226 - 227).

1. The question of synchronising the times between various security cameras has never been part of the Crown case. However, given the question raised by Mr Conwell as to the accuracy of what appeared in Exhibit 36, and the reliance that appeared to have been placed upon it by counsel for some of the accused, the representatives of the Crown set about examining the issue for themselves during the course of Tuesday, 27 September 2011. By mid-afternoon, Ms Lockery, instructing solicitor to the Crown Prosecutor, had completed that analysis and she provided me and all counsel with a document setting out her findings and the basis for them (MFI 102). Although the question of timings is one of fact for the jury, I was persuaded that Ms Lockery's findings were soundly based and were correct.

1. The critical thing to emerge from this re-analysis of the time differences between cameras is that camera 404 was not out of synchronisation with other cameras by 8 to 10 seconds as previously thought. It is, in fact, putting aside fractions of a second, in synchronisation.

1. This revelation had ramifications for the cases concerning some of the parties. For present purposes, it impacted significantly upon the submission made by Mr Gordon that his client "could not be in two places at once" and therefore could not be a man with a bollard in the Deng footage.

1. Counsel had an opportunity to consider the matter overnight. The preliminary view I held, which was conveyed to counsel, was to the effect that the "could not be in two places at once" submission made by Mr Gordon appeared no longer to have merit. However, it also appeared to me that if it was thought that Mr Kisacanin was the man with a bollard in the Deng footage, then that was something that was recorded at about 1:41:27pm, and it is Mr Kisacanin who is clearly seen in the camera 404 footage at 1:41:29pm to be in a different location putting a bollard down. In short, if he had a bollard at 1:41:27pm and put it down two seconds later, he cannot have done much with it in that short period.

1. Mr Gordon made the application to discharge the jury when discussion of the topic resumed on the morning of Wednesday, 28 September 2011.

Mr Gordon's submissions concerning the discharge of the jury

1. Mr Gordon submitted that up until 27 September 2011, he had no reason to challenge or doubt the accuracy of the analysis conducted by Inspector French. It was a critical assumption underlying his "could not be in two places at once" submission.

1. Mr Gordon made the point that there was no need for Mr Kisacanin's representatives to concern themselves with timings in that, up until the close of the Crown case, they were unaware that the Crown was asserting that it was Mr Kisacanin who was the man with the bollard in the Deng footage. That did not become apparent until a no case to answer submission, or application for a directed verdict of acquittal, was made by Mr Gordon on 15 August 2011.

Reasons for refusing the application

1. In light of the history I have set out at some length, I can state my reasons for refusing the application quite briefly.

1. Mr Gordon relied upon the analysis of Inspector French. However, it was quite obvious that Inspector French did not purport to bring any expertise to bear upon the exercise of determining the differences in camera times. He said as much in his evidence of 11 August 2011. Moreover, the Crown on 5 August 2011 had invited counsel to carry out the task for themselves.

1. Furthermore, while Mr Gordon submitted that it did not become apparent that the Deng footage bore significance to the case against Mr Kisacanin until the no case to answer submission, I note that Mr Gordon did not make his closing address to the jury until some three and a half weeks later, on 8 September 2011 to be precise. I inquired of Mr Gordon whether any steps had been taken in that intervening period to verify the accuracy of Inspector French's analysis, and he replied to the effect that there had been no reason to believe that it was wrong (SU 321).

1. There was no doubt that the jury would have to be informed of the error in the analysis by Inspector French. As a consequence, it became necessary for the jury to be told of the ramifications of this. They included that Mr Gordon's "could not be in two places at once" submission proceeded upon an incorrect premise.

1. I did not continue with the summing up on 28 September 2011. The jury were sent away with a view to resumption the following morning. I invited counsel for all parties who felt that their case had been affected by the faulty time analysis to send my associate a note as to what they would wish me to say to the jury about the issue.

1. I formed the view that the jury could be told that an unfortunate error had been made and that it had ramifications not only in respect of the case concerning Mr Kisacanin, but in respect of cases concerning a number of the other accused as well. Some counsel had, unwittingly, relied upon an analysis that had been accepted as being correct until a very late stage. It seemed to me that in these circumstances, it was most unlikely that the jury would form an adverse view of the credibility of any counsel, let alone that of Mr Gordon specifically.

1. For these reasons, I was not persuaded that the case for Mr Kisacanin had been prejudiced at all, and certainly not to an extent that would warrant the discharge of the jury from returning a verdict in the case concerning him.

1. These are my reasons for refusing the application to discharge the jury in respect of the accused Kisacanin.

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Decision last updated: 14 February 2012