Citation: R v Phanekham (No 1) [2013] NSWSC 1695
Court: Supreme Court of New South Wales
Date: 18 November 2013
Judge(s): Beech-Jones J
Background
The accused faced a murder charge arising from a single knife wound alleged to have caused the deceased's death. The Crown's case was that the accused deliberately stabbed the deceased, intending to kill or cause grievous bodily harm.
Two central factual disputes shaped the trial. First, whether the stabbing was a voluntary act by the accused or whether the deceased somehow came to be impaled on the knife. Second, if the act was deliberate, whether it was carried out with the requisite intent for murder.
During the trial, the Crown sought to tender two photographs of the single stab wound. Senior counsel for the accused objected, arguing the photographs should be excluded under section 137 of the Evidence Act 1995 on the basis that their prejudicial effect outweighed their probative value.
Legal Issues
- Whether the two photographs of the fatal stab wound carried sufficient probative value to be admitted into evidence
- Whether the prejudicial effect of the photographs outweighed their probative value, warranting exclusion under section 137 of the Evidence Act 1995
Decision
Issue 1: Probative value of the photographs
Beech-Jones J found that the photographs held reasonably significant probative value. The nature, size, and orientation of the stab wound were directly relevant to both contested issues: whether the stabbing was a voluntary act and whether it was performed with the necessary intent.
The judge acknowledged that diagrams could illustrate some of this information, but the photographs represented the best available evidence of the direction and orientation of the knife as it entered the deceased. A Crown witness intended to use the photographs to explain these matters to the jury.
Issue 2: Prejudicial effect under section 137
Beech-Jones J noted that, strictly speaking, his finding of significant probative value meant the section 137 discretion to exclude did not arise. However, he addressed the question for completeness.
The judge found the prejudicial effect of the photographs was not particularly great. The wounds had been cleaned and debrided before the photographs were taken, meaning there was no excess of blood and no distressing depiction of the deceased in circumstances such as being examined at the scene. While the photographs were unpleasant, their prejudicial effect did not outweigh their probative value.
Orders Made
- Tender of photographs allowed.
Key Takeaways
- Under section 137 of the Evidence Act 1995, a court must be satisfied that the probative value of evidence is outweighed by its prejudicial effect before exercising the discretion to exclude it; where probative value is sufficiently significant, the discretion to exclude does not arise.
- Photographic evidence of a wound was found to carry greater probative value than diagrams where the photographs could directly illustrate the direction and orientation of a weapon, matters squarely in issue at trial.
- The Supreme Court treated the post-debridement condition of the wound photographs as a relevant factor in assessing prejudicial effect, noting the absence of excess blood or other distressing contextual details reduced that effect.
- Where a single stab wound is central to both the voluntariness of an alleged act and the question of intent, evidence going to the nature and characteristics of that wound carries heightened relevance to the jury's deliberations.
Legislation and Cases Referenced
Legislation
- - Evidence Act 1995
Cases
- Not stated