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Supreme Court 5 February 2018

R v Cliff

[2018] NSWSC 78

Homicide
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE PHOTOGRAPHS RULED ADMISSIBLE

Citation: R v Cliff [2018] NSWSC 78
Court: Supreme Court of New South Wales
Date: 5 February 2018
Judge: Campbell J

Background

The accused was charged with murdering a man on 7 June 2016, with the Crown alleging he attended the deceased's home and stabbed him 30 times with a knife. The accused entered a plea of not guilty to murder but guilty to manslaughter, a plea the Crown did not accept as discharging the indictment. The key issue for the jury would be whether the accused intended, at the time of the fatal stabbing, to inflict at least really serious physical injury.

Before the jury was empanelled, the Crown sought to tender a series of crime scene photographs numbered 90 to 99. These showed the deceased's body in situ in a neighbour's home unit, where the deceased had fled after the attack, as well as blood deposits in various locations around that home. Defence counsel objected to photographs 94 through 99.

The matter came before Campbell J as a pre-trial admissibility ruling under s 192A of the Evidence Act 1995 (Cth), which allows a court to determine admissibility questions in advance of jury proceedings.

  • Whether the probative value of the disputed crime scene photographs was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (Cth).
  • Whether photographs with probative value could be excluded simply because other evidence might achieve a similar result.

Decision

Campbell J found that the photographs carried clear probative value on two bases. First, they would help the jury follow the account of the neighbour, Mr Garland, who witnessed the deceased's final movements. Second, the photographs, which showed the extent and nature of injuries to the deceased's torso, were relevant to the question of intent and, independently, to any question of self-defence that might arise on the evidence.

On the question of unfair prejudice, the court applied the test described in the authorities: the relevant danger under s 137 is that the jury might misuse evidence in some irrational or emotionally driven way, giving it more weight than it deserves or reacting in a manner that is unfair to the accused. Campbell J noted that courts have consistently cautioned against overstating the sensitivity of jurors, and that ordinary community members serving on juries are expected to approach their task with robustness and dispassion.

After viewing the photographs personally, the court concluded that although images of a recently deceased and injured person may be confronting, these particular photographs were not of a nature likely to excite an unreasonable or irrational response against the accused. The degree of prejudice inherent in any murder trial's crime scene photographs did not, in this case, outweigh the obvious probative value.

Campbell J also addressed and rejected the argument that the photographs should be excluded because their probative value could be satisfied by other evidence. The court confirmed that s 137 sets a test of whether probative value is outweighed by unfair prejudice, not a test of necessity. The Crown, subject to the rules of evidence, is entitled to lead its case through whichever admissible evidence it judges appropriate.

Orders Made

  • All photographs in MFI 1 (crime scene photographs numbered 90 to 99) were ruled admissible in their entirety.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (Cth), the test for excluding Crown evidence is whether probative value is outweighed by the danger of unfair prejudice. The test is not whether the evidence is necessary, nor whether its probative value could be met by less confronting alternatives.
  • The Supreme Court confirmed that the "danger of unfair prejudice" in s 137 refers to the risk that a jury will misuse evidence irrationally or emotionally, rather than the ordinary forensic disadvantage that flows from any powerful piece of evidence.
  • Where photographs of a deceased person show the nature and extent of injuries, they can carry significant probative value on the question of intent, particularly in murder cases where intent is a live issue for the jury.
  • Judicial directions to juries, including directions to approach evidence dispassionately and to treat photographs as an aid to assessing witness testimony rather than as proof in themselves, form part of the framework within which admissibility is assessed.
  • Consistent with earlier decisions including R v Zammit and R v Hunter (No 9), courts should not readily assume that crime scene photographs will overwhelm a jury's capacity for dispassionate reasoning, especially where the photographs are not post-mortem examination images.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (Cth), ss 137, 192A

Cases:
- R v LN; R v AW (No 4) [2017] NSWSC 221 (Johnson J on the operation of s 137)
- R v Zammit [1999] NSWCCA 65 (Wood CJ CL on the robustness of jurors and weighing prejudice)
- R v Hunter (No 9) [2014] NSWSC 1152 (Button J on injuries as evidence of intent)
- C Van Der Lely NV v Bamfords Ltd (1963) RPC 61 (Lord Reid on jury directions regarding photographs)