R v Kalachoff (No 2)
[2017] ACTSC 314
•30 August 2017
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 |
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:
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.
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.
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.
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.
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 evidence undue weight”: R v Yates [2002] NSWCCA 520 at [252] or that the evidence “will be misused by the jury in some unfair way”: R v BD (1997) 94 A Crim R 131 at 151. In assessing whether unfair prejudice will arise it is necessary to have regard to the whole of the evidence that is to be given: Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 at [30].
The CCTV in the present case is of the car park outside the drinking venue known as PJ O’Reilly’s Irish Pub in Tuggeranong. There are a number of cars in the car park and, at various times, people passing through the car park. Their presence appears to be associated with the drinking venue. The events can be divided into four sections.
First, the complainant and some other people walked to his car. The complainant gets in the car. The accused walks to the car and speaks to the female companion of the complainant through the passenger side window of the car. The accused then walks round to the driver side of the vehicle, opens the door and speaks, in a manner consistent with some aggression, to the complainant. The complainant’s female companion comes around and inserts herself between the two men in a manner consistent with an attempt to defuse any potential conflict. The accused walks away from the car.
Second, there is the period where any CCTV recording is missing. During this period there is likely to be evidence that the accused went briefly back into the drinking venue and then re-emerged. For reasons which are disputed there will be evidence that the complainant got out of his car and ran at the accused and attempted to tackle him. There was then an altercation between the two.
Third, there are then events which are captured by the CCTV. That shows a group of people including the complainant and the victim. It appears to be the end of some form of prior melee. Amongst the people the complainant is seen to be walking away from the group and the accused breaks free of other people within the group, approaches the complainant and strikes him from behind causing him to fall to the ground. The accused then leaves the area.
Fourth, there is a period of video where the complainant is on the ground and various people attend to him while he is on the ground. This portion of the video ends after he has been on the ground for several minutes.
Counsel for the accused submitted that it was unfairly prejudicial because the jury would only see a part of the events in question. In particular the jury would only view a portion of the violent interaction between complainant and the accused. The accused would therefore not have the benefit of CCTV for those portions of the interaction where he contends that he was not the aggressor so as to put the events in the latter part of the incident shown on the CCTV into their proper context. This was said to be unfairly prejudicial because there was evidence likely to be given by a number of witnesses, Dylan Webster, TJ George and Jesaree Gilbey-Taylor, which to a greater or lesser extent supported the proposition that the complainant ran at the accused and attempted to tackle him. It was said to be unfairly prejudicial to permit the video of the latter part of the incident in circumstances where there was no video of the former part of the incident.
I did not accept this submission.
First, it is uncontroversial that the jury will be made aware that there is approximately one minute and 40 seconds missing from the video and hence that the latter portion of the violent incident represents only part of the overall incident. They will not be under any misapprehension that the video represents the whole of the incident.
Second, the Crown proposes to call the relevant witnesses who give evidence surrounding the circumstances of the first part of the violent interaction between accused and complainant. Further, assuming that the complainant gives evidence consistent with that which he gave at the first trial, it will be uncontroversial that he ran at and attempted to tackle the accused. The area of the dispute will be limited to his motivation for that conduct in that the accused will contend that he did so with the intention of fighting the accused and hence was, or was perceived to be, the aggressor. The Crown will contend that he did so as an act of self defence. It is therefore not a case where there is a significant area of dispute in relation to which the accused is being denied access to relevant evidence or where there is for some other reason an inability to put the fragments of CCTV in their proper context.
Third, the CCTV is an impartial electronic eye. In relation to the first segment of the video described above, that is probative in relation to the lead up to the violent incident and the nature of the interaction between the two men at that time. In relation to the third segment of the video described above, that shows part of the incident alleged by the Crown to constitute the offence, in particular the striking of the complainant by the accused. Because of its precision, accuracy and the relevance of the subject matter to the ultimate questions for the jury, it is of high probative value. It would not involve a misuse of the evidence if, where there was a conflict, the jury placed greater weight upon what it observed on the CCTV than on the potentially hazy recollections of events almost two years ago by persons who may have been affected by alcohol. For the purposes of s 137, the evidence in the CCTV is of high probative value.
In the light of the first and second factors, there is not a significant danger of the evidence of being unfairly prejudicial to the accused. While the evidence on the CCTV is clearly adverse to the accused because of its probative value in support of the Crown case, that does not represent a danger of unfair prejudice. The potential for unfair prejudice relies upon the possibility that the jury might unreasonably or inappropriately discount the oral evidence of what occurred during the one minute and 40 seconds because that is not captured in a way that is as probative as the impartial CCTV record. While there is some theoretical danger of that occurring, I do not consider that the danger is significant because the jury will know that there is missing CCTV footage of a violent part of the incident which it is uncontroversial occurred and they will be directed that they need to assess the conflicting evidence of the witnesses to reach factual conclusions relevant to the issue of self defence. It must be assumed that the jury will try to comply with those directions. The nature of the CCTV footage and the issues that the jury is required to determine are not so much that the nature or content of the evidence has the risk of inflaming the jury or diverting them from their task. Rather, the jury will be faced with a conventional task of putting together different forms of evidence covering different parts of the critical incidents and assessing the weight that is to be given to the different evidence in order to reach conclusions of fact upon which to base their verdict. That the evidence is less than ideal as a result of the loss of the CCTV is not such as to take the case so far as the jury is concerned outside those normal bounds. Even if I am wrong about my conclusion that there is no significant danger of unfair prejudice, it is clear that any danger of unfair prejudice does not outweigh the probative value of the evidence.
As a consequence, I was not satisfied that the danger of unfair prejudice to the accused arising from the admission of the whole of the CCTV outweighed the probative value of that material.
Therefore I did not consider that s 137 requires:
(a)the whole of the video recording to be excluded; or
(b)that part of the video showing the accused striking the complainant to be excluded.
I therefore ruled that the whole of the video be admitted.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 2 November 2017 |
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