Citation: R v Phanekham (No 2) [2013] NSWSC 1738
Court: Supreme Court of NSW
Date: 26 November 2013
Judge(s): Beech-Jones J
Background
The accused stood trial for the murder of his neighbour. On the night in question, the accused had been playing the online video game Diablo III at home when he was disturbed by the deceased yelling and behaving abusively toward his own family next door. After an exchange between them, the accused armed himself with at least one knife and confronted the deceased in the street.
The central factual dispute at trial was whether the fatal knife wound was inflicted deliberately or accidentally. The accused's account, given shortly after the incident in a triple-zero call and later in a recorded police interview, was that the deceased ran at him and onto the knife as the accused held it to frighten him off.
On the third day of trial, the Crown sought to lead evidence from an online gaming companion describing the nature of Diablo III, characterised as a violent "hack and slasher" game. The accused's senior counsel objected, and Beech-Jones J ruled on admissibility mid-trial.
Legal Issues
- Whether the description of the violent video game the accused was playing shortly before the confrontation was relevant under section 55 of the Evidence Act 1995 (that is, whether it was probative of the accused's state of mind at the time of the alleged offence)
- Whether, if probative, the evidence should nonetheless be excluded under section 137 of the Evidence Act 1995 because its prejudicial effect on the accused outweighed its probative value
- Whether the principles from O'Leary v R (1946) 73 CLR 566, which allow evidence of prior violent or hostile conduct on the same occasion to be admitted, extended to participation in a violent video game
Decision
Issue 1: Relevance and probative value (s 55)
Beech-Jones J found the evidence lacked any probative value. The Crown's theory was that playing a violent game for several hours had built up the accused's anger and frustration, placing him in a state of mind analogous to the hostile intent alleged at the time of the confrontation. The judge regarded this reasoning as entirely speculative. There was no evidence of the accused's emotional state while gaming, no witness who observed him becoming agitated or hostile during play, and no evidence of which character he was controlling.
The judge drew a clear distinction between O'Leary and the present case. In O'Leary and the decisions applying it, the accused had personally engaged in actual acts of violence or aggression in the period immediately surrounding the offence. Playing a video game, even a violent one, is fundamentally different: its defining characteristic is that it is a game, and in the ordinary course players dissociate themselves from both the actions and the imputed emotions of the characters they control. The mere fact of participation in a violent game could not, without more, establish that the accused shared in any anger, frustration, or violent intent attributable to an in-game character.
Issue 2: Prejudicial effect (s 137)
Although the exclusion under section 55 made it unnecessary to reach section 137, Beech-Jones J addressed it for completeness. The judge identified two significant risks of unfair prejudice. First, the jury might reason that the accused was acting out the role of a sword-wielding video game character when he confronted the deceased. Second, the jury might engage in tendency reasoning, concluding that because the accused played a "hacking and slashing" game he was more likely to engage in such conduct. Neither form of reasoning was the basis on which the Crown sought to use the evidence, yet both risks were, in the judge's view, quite significant. Had the evidence possessed any probative force, section 137 exclusion would have warranted serious consideration.
Issue 3: Crown's reference in opening address
The Crown had already mentioned the game in its opening address before objection was taken. No application to discharge the jury followed, and the accused's counsel conceded such an application was not open given the absence of a timely objection. Beech-Jones J observed that in any event the reference in the opening formed part of a neutral narrative of events on the night and made no attempt to link the gaming to any issue the jury had to determine. No basis for discharge existed.
Orders Made
- Evidence rejected.
Key Takeaways
- Participation in a violent video game, without further evidence of the player's actual emotional or mental state during play, is not probative of the player's state of mind for the purposes of section 55 of the Evidence Act 1995.
- The O'Leary v R line of authority, which permits evidence of prior violent or hostile conduct on the same occasion, does not extend automatically to conduct that is merely simulated or performed within a game environment. The distinction between real acts of aggression and in-game actions is material to the analysis.
- A court cannot assume, without evidentiary support, that a player internalises or shares the emotions or intent of a character they control in a video game.
- Even where the Crown does not rely on tendency reasoning, evidence of participation in violent entertainment carries a real risk that a jury will deploy that reasoning impermissibly, a factor weighing toward exclusion under section 137.
- Where Crown counsel has referred to evidence in an opening address and defence counsel does not object at the time, a subsequent application to discharge the jury on that basis will not ordinarily succeed, particularly where the reference formed part of a neutral factual narrative.
Legislation and Cases Referenced
Legislation
- - Evidence Act 1995
Cases
- - O'Leary v R (1946) 73 CLR 566
- - R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
- - R v Player [2000] NSWCCA 123; 217 ALR 578
- - R v Serratore [2001] NSWCCA 123