R v Kalachoff (No 2)

[2017] ACTSC 314

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kalachoff (No 2)

Citation:

[2017] ACTSC 314

Hearing Date:

30 August 2017

DecisionDate:

30 August 2017

Before:

Mossop J

Decision:

Ruling on evidence:

1.      The whole of the video be admitted.

Catchwords:

EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Judicial discretion to admit or exclude evidence – admissibility of closed circuit television footage where portion missing – evidence is of high probative value – no unfair prejudice to the accused – footage not inadmissible pursuant to s 137 of the Evidence Act 2011 (ACT)

Legislation Cited:

Evidence Act 2011 (ACT), ss 137, 192A

Cases Cited:

Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
Festa v The Queen [2001] HCA 72; 208 CLR 593
R v BD (1997) 94 A Crim R 131
R v Yates [2002] NSWCCA 520

Parties:

The Queen (Crown)

Brock Kalachoff (Accused)

Representation:

Counsel

Mr S McLaughlin (Crown)

Mr J Masters (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Marjason & Marjason (Accused)

File Numbers:

SCC 225 of 2016

SCC 226 of 2016

MOSSOP J:

1. I was asked to make a ruling under s 192A of the Evidence Act 2011 (ACT). The ruling related to the admissibility of a DVD showing closed circuit television (‘CCTV’) footage of the location where the incident giving rise to the charges faced by the accused occurred. The unusual feature of the CCTV footage is that approximately one minute and 40 seconds of that footage is missing. The footage is missing due to a technical defect with its original recording and the fact that it is missing is not the fault of the Crown or the accused.

1. The objection to the admissibility of the DVD was that the evidence was required to be wholly or partly excluded because of s 137 of the Evidence Act.  That section requires evidence to be excluded if its probative value is outweighed by the danger of unfair prejudice to the accused.

1. At the conclusion of the argument I ruled that the whole of the video was not inadmissible under s 137 and hence that it should be admitted. These are my reasons for that conclusion.

1. In Festa v The Queen [2001] HCA 72; 208 CLR 593 McHugh J said (at 609-10) of the balancing exercise required by s 137:

It is only when the probative value of evidence is outweighed by its prejudicial effect that of Crown can be deprived of the use of relevant but weak evidence.  And the evidence is not prejudicial merely because it strengthens the prosecution case.  It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert jurors from their task.

1. Other explanations of the concept of “unfair prejudice” are that “it may lead a jury to adopt an illegitimate form of reasoning, or to give the…