The admissibility of closed circuit television footage (CCTV) was recently considered by the New South Wales District Court in Alam v Rail Corporation New South Wales (2008) 8 DCLR (NSW) 81. The Court dismissed a challenge by Rail Corporation New South Wales (RailCorp) to have its own CCTV footage declared inadmissible as evidence. In its decision, the Court highlighted the special evidentiary role played by CCTV footage.
In October 2006, Ms Eugenie Alam alleged that she sustained injuries to her leg as she attempted to board a passenger train at Pendle Hill Railway Station. Ms Alam alleged that the train’s guard, a RailCorp employee, was alerted to the fact that she wished to board the train. According to Ms Alam, the guard ignored her warning and closed the train doors as she was attempting to board, trapping her leg and causing her to fall to the platform. Ms Alam brought proceedings against RailCorp for negligence alleging that her injury occurred as a result of the guard’s failure to safely delay the departure of a train from the platform.
RailCorp’s version of events differed substantially from those alleged by Ms Alam. According to the station’s ticket vendor and the train’s guard, Ms Alam did not alert the guard to the fact that she wished to board and attempted to board the train despite having heard the guard’s whistle indicating that the train was about to depart. In answer to a subpoena before trial, RailCorp produced CCTV footage taken from the platform. However, at trial, RailCorp applied to have the footage declared inadmissible.
Generally, the admissibility of still photographic evidence, as a visual reproduction of the facts, has been unquestioned, provided:
- the origin or provenance of the photograph is established, and
- the photograph is only used as evidence of the truth of events supported or corroborated by oral testimony.
At trial, RailCorp challenged the admissibility of the CCTV footage by asserting that, while the Court is entitled to use video footage as an aid to explaining oral testimony, the Court could not use the footage independently to reach a conclusion as to how and why Ms Alam came to be injured. To support its argument, RailCorp cited two recent New South Wales Court of Appeal authorities which detailed the role of photographs as a supplementary, as opposed to stand alone, form of evidence (Blacktown City Council v Hocking (2008) Aust Tort Reports 81-956; Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955).
The Court refused RailCorp’s challenge. It noted that videotape and CCTV evidence occupies a special position in proceedings distinct from photographic evidence because of its ability to capture, in an objective and independent manner, evidence in a case. The Court noted that videotape and CCTV evidence had been accepted in numerous personal injury proceedings without the aid of expert testimony and without any question as to the accuracy of the events depicted within. As such, the Court noted that any challenge to the CCTV footage would have to have been in relation to a specifically identified flaw in the footage as opposed to a generic challenge to the nature of the footage itself.
The Court found that there was no negligence on the part of RailCorp with respect to the injuries sustained by Ms Alam. In reaching its decision, the Court indicated that it was the CCTV footage which corroborated RailCorp’s version of events and swayed the decision in its favour. In its closing remarks, the Court also noted that the courts need to be “flexible in order to deal with modern technology, rather than to adopt pedantic or old fashioned suspicions of modern inventions such as CCTV”.
As a result, a number of important points emerge:
- as a silent and independent witness, CCTV footage remains separate from the rules of evidence applicable to photographs. As a result, providing provenance is not an issue, CCTV footage is sufficient as a stand alone source of evidence
- where a party seeks to exclude CCTV footage from proceedings, any exclusion would have to be sought on the basis of a specific flaw in the footage itself, as opposed to some generic challenge to the nature and role of the CCTV footage, and
- as a silent observer, CCTV footage can play an invaluable role in collecting evidence, determining facts and protecting against the costs of vexatious litigation. This is particularly so in instances where the public are in contact with moderate risk forms of transport like trains and buses.