Citation: R v Biljuh (No 3) [2015] NSWSC 710
Court: Supreme Court of New South Wales
Date: 4 June 2015
Judge(s): Button J
Background
The accused faced a murder charge involving the death of an elderly woman whose face had been wrapped in duct tape, causing suffocation. The proceedings concerned an evidentiary dispute arising during the trial, resolved by an ex tempore (on-the-spot) ruling from the bench.
The Crown sought to tender a series of crime scene photographs of the deceased's body. Defence counsel did not object to two of those photographs, including a close-up of the deceased's face and an image of the rear of her head, but objected to a third photograph, photograph 45, which showed the body lying on kitchen tiles or linoleum in its entirety.
The central question was whether this third photograph was admissible under s 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the probative value of photograph 45 was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW), such that the court was required to exclude it.
Decision
Button J confirmed that the test under s 137 is not discretionary. Where the probative value of prosecution evidence is outweighed by the danger of unfair prejudice to the accused, exclusion is mandatory, not a matter of choice.
His Honour accepted that photograph 45 was distressing. However, he assessed the risk of unfair prejudice as reasonably low, reasoning that the photograph was unlikely to upset the jury to any greater degree than the other two photographs to which no objection had been taken.
On probative value, Button J assessed photograph 45 as quite high in evidential worth. It was the only photograph showing the precise location and arrangement of the body in situ. The Crown also relied on it to support its case that the body had been dragged by the perpetrator, and to assist the jury in understanding the significance of a DNA profile consistent with the accused found on the collar of the deceased's dress.
Balancing those two considerations, Button J concluded that the probative value of photograph 45 was not outweighed by the danger of unfair prejudice to the accused, and he admitted the photograph into evidence.
Orders Made
- Photograph 45 of voir dire exhibit J admitted into evidence.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the accused. The provision is mandatory, not discretionary.
- The Supreme Court assessed the danger of unfair prejudice from a particular photograph by reference to other photographs already admitted without objection, finding that the incremental prejudicial effect was low where comparable distressing images were already before the jury.
- Probative value was treated as high where the photograph was the sole image depicting the body's precise location in situ and directly supported specific factual theories advanced by the Crown, including alleged dragging and the location of DNA evidence.
- The s 137 balancing exercise is evaluative and context-specific. The admissibility of other unobjected evidence formed part of the court's assessment of the incremental prejudice posed by the disputed photograph.
- No error of law was said to arise from the ruling. The decision illustrates how courts approach evidentiary challenges to potentially distressing crime scene images in serious criminal proceedings.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
Cases cited:
No cases were cited in this decision.