Citation: R v HG; R v WE (No 8) [2018] NSWSC 1261
Court: Supreme Court of New South Wales
Date: 7 August 2018
Judge(s): Bellew J
Background
Two accused persons each faced a charge of doing an act or acts in preparation for a terrorist act. During the course of the trial, Crown evidence included two backpacks seized from the location where the accused were arrested. One backpack contained four items described in evidence as neck warmers or neck gaiters, each bearing a camouflage pattern.
After seizing the backpack, investigating police placed the neck gaiters onto a mannequin's head in a way that obscured most of the mannequin's face, leaving only the eyes visible. They then photographed the mannequin wearing the gaiters arranged in that manner. The Crown sought to tender this photograph as evidence at trial.
Counsel for each accused objected to the admission of the photograph, relying on section 137 of the Evidence Act 1995 (NSW). That provision requires a court in a criminal proceeding to exclude prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Legal Issues
- Whether the photograph of the mannequin dressed in the neck gaiters was admissible, specifically whether its probative value was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW)
Decision
Admissibility of the mannequin photograph under s 137:
Bellew J accepted that the photograph was relevant, but assessed its probative value as marginal at best (at [3]). The neck gaiters themselves were already in evidence as an exhibit, and so the photograph added little beyond what the jury could assess from the items directly (at [3]).
Against that limited probative value, the court found a high danger of unfair prejudice (at [3]). The photograph depicted a confronting and menacing appearance that lent itself to misuse by the jury, raising a real risk that the jury's reasoning could be distorted by the visceral impact of the image rather than its evidentiary content (at [3]).
The court noted that the Crown remained free to submit to the jury, by way of argument, that the neck gaiters were intended to be worn in the manner shown (at [4]). However, that legitimate submission did not rescue the admissibility of the photograph itself. Because the danger of unfair prejudice outweighed the photograph's probative value, the evidence was excluded (at [4]).
Orders Made
- The photograph of the mannequin wearing the neck gaiters is excluded from evidence.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), the Supreme Court excluded a photograph whose probative value was marginal because the items it depicted were already in evidence, and whose prejudicial effect was high due to the confronting and menacing appearance it created (at [3]-[4]).
- Where physical exhibits are already before the jury, a staged reconstruction photograph of those same items may add little additional probative value, weakening any argument for its admission (at [3]).
- A high danger of unfair prejudice arises where a photograph is so visually striking or threatening that it risks inflaming the jury's reasoning rather than advancing legitimate factual inference (at [3]).
- Exclusion of a photograph does not prevent the Crown from making oral submissions to the jury about the inferences to be drawn from the underlying physical exhibits (at [4]).
- The balancing exercise under s 137 requires courts to assess both the incremental probative value of tendered evidence and the specific nature of the prejudicial risk it creates, not merely whether some probative value exists (at [3]-[4]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated