Citation: R v LN; R v AW (No. 4) [2017] NSWSC 221
Court: Supreme Court of New South Wales
Date: 8 March 2017
Judge: Johnson J
Background
Two accused, the mother and stepfather of a three-year-old boy named Joseph, stood trial for his murder. Joseph had lived with his grandmother and extended family in Sydney from birth until mid-June 2014, when he moved to live with the accused in Oberon. He died on 6 August 2014, having suffered a cardiac arrest on 3 August 2014.
The Crown alleged that both accused inflicted multiple injuries on Joseph during the 51-day period he lived with them, and that the mother directly caused the fatal injury. The stepfather faced liability on the basis of joint criminal enterprise.
During the trial, the Crown sought to tender a video of Joseph from May 2013 and six still photographs taken between April and June 2014, all depicting him prior to moving to Oberon. The defence objected to the admission of this material.
Legal Issues
- Whether the video footage and still photographs of Joseph were relevant to issues in the trial under ss 55 and 56 of the Evidence Act 1995 (NSW)
- Whether, even if relevant, the evidence should be excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Johnson J held that the video and photographs were relevant to a real issue in the trial: Joseph's health, mobility, and physical attributes before he moved to Oberon on 13 June 2014. Both accused had made statements to police and health professionals suggesting Joseph had pre-existing health and behavioural limitations, including claims that he was not a "normal active three year old" and that he dragged rather than lifted his feet. The photographic evidence would allow the jury to assess those claims directly, rather than relying solely on oral descriptions.
His Honour was not persuaded that the age of the video, taken when Joseph was approximately two years old, materially diminished its probative value. Any argument that something had changed between May 2013 and June 2014 could be tested through the oral evidence of family witnesses who lived with Joseph during that period.
On the s 137 question, Johnson J acknowledged the trial had emotional content given the Crown's allegation of the murder of a young child. However, his Honour found that any risk of an irrational or emotional response from the jury could be effectively managed through appropriate jury directions. The jury had already been reminded at the outset of the need for a dispassionate examination of the evidence. The probative value of the material, described as "considerable," was not outweighed by the danger of unfair prejudice.
His Honour also noted that excluding the evidence could leave the jury to speculate about Joseph's pre-move condition, when direct photographic evidence was readily available.
Orders Made
- The Crown was permitted to adduce the video recording (Exhibit VD1) and the six still photographs of Joseph before the jury.
Key Takeaways
- Photographs and video of a deceased child victim were admitted as relevant evidence where the accused had made statements about the child's pre-existing health and physical limitations, creating a direct factual dispute that the images could help resolve.
- Under s 137 of the Evidence Act 1995, the test for exclusion requires the danger of unfair prejudice to outweigh probative value; emotional content alone does not satisfy this threshold where appropriate jury directions can manage the risk.
- The Supreme Court confirmed that "unfair prejudice" in the s 137 context focuses on the risk that evidence will be misused by the jury in an irrational, emotional, or illogical way, or given more weight than it truly deserves, drawing on Papakosmas v R [1999] HCA 37, R v Clark [2001] NSWCCA 494, and BJS v R [2013] NSWCCA 123.
- A "before and after" comparison of a victim's physical condition can be a legitimate basis for admitting visual evidence, particularly where oral evidence of the same matters is already before the jury.
- The risk of leaving a jury to speculate about a factual issue, when direct evidence is available to resolve it, was treated as a factor weighing in favour of admission rather than exclusion.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 137
Cases
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- BJS v R [2013] NSWCCA 123; 231 A Crim R 537