R v Kelsall (No 2)

[2015] NSWSC 252

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kelsall (No 2) [2015] NSWSC 252
Hearing dates:	2 March 2015
Decision date:	05 March 2015
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	CCTV footage admissible
Catchwords:	CRIMINAL LAW – evidence – admissibility of CCTV footage – where footage from two sources is to be presented side by side – not prejudicial – CCTV footage admissible
Category:	Procedural and other rulings
Parties:	Regina Daniel Jack Kelsall
Representation:	Counsel: Mr P McGrath SC (Crown) Mr C Watson (Accused) Solicitors: Solicitor for Public Prosecutions Breton Legal Pty Limited
File Number(s):	2013/302108

Judgment

1. HIS HONOUR: The Crown case is that the accused followed the deceased from the Oaks Hotel at Neutral Bay to the deceased’s nearby home in Watson Street. It is alleged that the accused entered the deceased’s apartment and there, in the deceased’s bedroom, committed the two offences. The deceased’s flat mate was alerted to sounds coming from his bedroom. She went to investigate and found the deceased on the floor covered in blood. The immediate investigation established that he had died from the effects of multiple stab wounds.

2. The issue with which this judgment is concerned is the manner of presentation by the Crown of CCTV footage showing the deceased arriving at the Oaks Hotel, having a drink and then leaving the hotel to walk home. The CCTV also contains footage of the accused in the general area whilst the deceased is in the hotel. It then shows the accused following the deceased as the deceased walks away from the hotel up until the point where he crosses Military Road at Watson Street.

3. There is no objection by the accused to any of this footage. The objection is to the proposal by the Crown to present some of the footage side by side; that is, footage of the deceased sitting in the hotel alongside footage of the accused standing around on the footpath in Ben Boyd Road across from the hotel. It was contended that this manner of presentation would be prejudicial in that it could be misused by the jury.

4. Mr Watson submitted that it was not clear whether the timing of the two pieces of footage has been synchronised. He said that “there’s aspects of distance between where the two people are” and “matters of distance and lighting may dissipate if the jury sees those two images together” (2.3.15 T71.35). In other words, viewing the two pieces of footage simultaneously might distract the jury from matters such as distance and lighting (2.3.15 T71.35-71.45).

5. The Crown provided the disc containing the relevant CCTV footage. I have viewed in chambers what it proposes to display to the jury. It runs for about 54 minutes. Roughly half of it has footage side by side. It shows the deceased sitting in the hotel having a beer whilst a camera from within the Curry Palace across the road shows the accused on the footpath immediately outside. There is not a lot of activity involving either the deceased or the accused in these scenes. There is certainly no interaction between them and, it seems to me, the only significance of it is that it shows where each of them were, during the time when the deceased was inside the hotel. I was assured by the Crown Prosecutor that the two pieces of footage have been closely synchronised in terms of time and efforts are continuing in that respect. I do not consider that exact synchronisation is essential, given the minimal significance of these parts of the footage.

6. I am not satisfied that there is anything prejudicial to the accused in the manner in which the Crown proposes to present this evidence to the jury.

7. The disc which contains CCTV footage, some of which shows footage from two sources displayed side by side, is admissible.

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Decision last updated: 18 March 2015