Citation: R v Hunter (No 9) [2014] NSWSC 1152
Court: Supreme Court of New South Wales
Date: 11 July 2014
Judge(s): Button J
Background
The accused faced a murder charge arising from a fatal assault on the deceased on the evening of 20 June 2011. The Crown alleged the accused and one or more family members attacked the deceased in retaliation for an earlier assault. The prosecution case was put on two bases: either the accused was the principal who directly caused the death, or he participated in a joint criminal enterprise to inflict really serious physical injury.
The defence did not contest causation of death, but did not concede that any principal held the requisite intention to inflict really serious physical injury. A medical condition affecting the deceased's blood coagulation was also noted by the defence.
The specific dispute before the court arose mid-trial, when defence counsel objected to the admission of two post-mortem photographs of the deceased. The objection was brought on the basis that the photographs' potential for unfair prejudice outweighed their probative value.
Legal Issues
- Whether two post-mortem photographs (photographs 46 and 78 from the post-mortem series) were admissible in evidence at trial.
- Whether the probative value of the photographs was outweighed by the danger of unfair prejudice to the accused, engaging the mandatory exclusion provision in section 137 of the Evidence Act 1995 (NSW).
Decision
Button J declined to exclude either photograph, finding that the probative value of both was reasonably high and that the danger of unfair prejudice did not outweigh that probative value. Section 137 was therefore not engaged, and both photographs were admitted into evidence.
On photograph 46, the defence argued that bruising around the deceased's eyes was secondary to other injuries (citing expert evidence from Professor Duflou) and that the photograph could simply be cropped to show only the forehead wound. Button J rejected this. His Honour noted that accurately describing the bruising in words would be difficult, and that the expert's characterisation of the bruising as "secondary" did not clearly mean it was irrelevant to assessing the force of the blows. The most distressing feature of the photograph was, in his Honour's view, the large sutured forehead wound rather than the periorbital bruising or blood from the nostril.
On photograph 78, which showed a severe wound to the rear of the deceased's head, the defence submitted that the wound could be adequately described in words. Button J observed that the wound was sutured rather than gaping, which reduced its emotive impact. Given that the intention of the principal remained in dispute, the nature and extent of the wounds was directly relevant to a live issue in the trial.
Several additional factors supported admission. The jury panel had been warned at the outset that graphic photographs would be shown, and no juror sought to be excused on that basis. Because intention to inflict really serious physical injury was contested, the injuries visible in the photographs bore directly on a genuinely disputed element of the Crown case.
Orders Made
• The two photographs (voir dire exhibits S 46 and S 78) will be admitted into evidence.
Key Takeaways
- Under section 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant; the provision is mandatory once that threshold is met.
- Probative value of post-mortem photographs is assessed against the specific issues in dispute at trial: where the accused's intention to inflict serious injury remained contested, photographs depicting the nature and extent of wounds carried significant probative weight.
- An expert's description of an injury as "secondary" does not automatically render photographic evidence of that injury irrelevant to questions of force and intention; the court found the scope of that characterisation was not entirely clear.
- Prior warning to the jury panel about graphic evidence, with no jurors seeking excusal, was treated as a relevant contextual factor in assessing the risk of unfair prejudice.
- The fact that a wound could theoretically be described in words does not, of itself, establish that a photograph of it should be excluded; the court found photographic depiction offered accuracy and detail that verbal description could not readily replicate.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
Cases:
No cases were cited in the judgment.