Citation: [2018] NSWSC 1554
Court: Supreme Court of New South Wales
Date: 26 September 2018
Judge(s): Garling J
Background
This decision concerns an interlocutory evidentiary ruling in a criminal trial before Garling J. The Crown sought to tender two items recovered during the execution of a search warrant at the accused's residence at Casula on 31 July 1984. The items were identified by a retired detective who had participated in the search.
The first item was a reproduction of a newspaper article found in the accused's lounge room. The second comprised six enlarged photographs of items observed in the garage of the accused's residence, themselves derived from an existing exhibit of photographs already admitted into evidence.
The accused opposed admission of both items on various grounds, prompting the court to rule on their admissibility.
Legal Issues
- Whether the reproduction of the newspaper article found at the accused's residence was admissible as relevant evidence
- Whether six enlarged photographs, derived from photographs already in evidence, were admissible
Decision
Issue 1: Admissibility of the newspaper article reproduction
Garling J was satisfied that the reproduction tendered by the Crown was, in substance, the same article depicted in a photograph already admitted as Exhibit 181 (at [6]). The unchallenged evidence of the retired detective confirmed this, and the reproduction was consistent in appearance with the photograph (at [6]).
The accused's objections, including the absence of a date, publisher, or full page reproduction, were found to be irrelevant to the question of admissibility (at [7]). The article had been torn from a newspaper and retained separately from other newspapers in the house, indicating an apparent interest by the accused in its subject matter. The court held that this was sufficient to establish relevance, given the article was in the accused's possession during the relevant period of the alleged offences (at [8]-[9]).
Issue 2: Admissibility of the enlarged photographs
The defence objected on the basis that the order in which photographs were taken was unclear and that items appeared to have been moved between photographs, making admission unfair to the accused (at [12]-[13]). The court noted that smaller versions of the underlying photographs had already been admitted as Exhibit 181, and that the accused had previously been given the right to apply for recall of the witness once instructions were obtained (at [14]).
Garling J was satisfied that the six photographs were simply magnifications of photographs already in evidence, with arrows added in some cases to draw attention to particular items (at [15]-[16]). On the same basis as the admission of Exhibit 181, the enlarged photographs were held to be admissible (at [17]).
Orders Made
- The newspaper article tendered by the Crown is admitted and marked Exhibit 183.
- The six enlarged photographs tendered by the Crown are admitted and marked Exhibit 184.
Key Takeaways
- Relevance of a document seized during a search warrant can be established by circumstances indicating the accused's apparent interest in it, such as the deliberate act of tearing and retaining an article, even where the document lacks a date or publication details (at [8]).
- The absence of identifying features such as a date or publisher on a document does not, of itself, bear on the question of admissibility (at [7]).
- Enlarged or magnified versions of photographs already admitted into evidence are admissible on the same basis as the originals, provided the court is satisfied they are genuine enlargements of those photographs (at [15]-[17]).
- Arrows or other markings added to photographs to highlight particular items do not, without more, render the photographs inadmissible (at [15]).
- Objections to fairness based on uncertainty about the sequence of photographs or movement of items within them were not, in this instance, sufficient to exclude the evidence (at [12]-[13], [17]).
Legislation and Cases Referenced
Legislation
- Not Applicable
Cases
- Not Applicable