Citation: [2019] NSWSC 145
Court: Supreme Court of NSW
Date: 12 February 2019
Judge(s): Campbell J
Background
The accused stood trial for the murder of the deceased following a stabbing at a shoe store in Campsie on 27 June 2017. It was not in dispute that the accused stabbed the deceased with a knife or other sharp instrument. The live issues at trial were the accused's intention at the time and whether the Crown had excluded the defences of self-defence and extreme provocation beyond reasonable doubt.
During the trial, a photograph forming part of an exhibit showed an item on the floor of the shoe store near where the deceased fell. That item appeared to be a knife sheath, but nothing in the evidence connected the sheath to either the accused or the deceased.
The Crown sought to tender a photograph of a knife (silver-bladed with a black handle, in a sheath) that the investigating officer had purchased from a nearby shop. The purpose was to assist in establishing that the item visible in the exhibit photograph was indeed a knife sheath.
Legal Issues
- Whether the Crown's tendered photograph of a comparison knife and sheath was admissible, given its purpose of identifying an item in an existing exhibit as a knife sheath.
Decision
Tender of the comparison knife photograph:
Campbell J rejected the tender. His Honour examined the photographs and accepted that the general geometry and dimensions of the purchased knife's sheath were broadly similar to the sheath depicted in photograph 112 of the exhibit (at [7]). However, the comparison knife was of a different design, and His Honour concluded that the tendered photograph would not assist him in drawing any inference beyond what was already apparent from photograph 112 itself (at [7]).
The court also noted that no evidence in the trial connected the sheath shown in photograph 112 to either the accused or the deceased, a matter raised when that photograph was originally introduced through a police forensics expert (at [4]). Defence counsel had already explored with the forensics officer whether any inference about the nature of a blade could be drawn from the shape of the sheath (at [5]).
Orders Made
- Evidence rejected.
- The bundle of photographs marked for identification and returned to the Crown.
Key Takeaways
- The Supreme Court rejected the tender of a comparison item purchased by an investigating officer where it offered no probative assistance beyond what the existing exhibit photograph already showed (at [7]).
- A broadly similar appearance in geometry and dimensions was insufficient to render the comparison evidence useful, where the purchased knife's sheath was of a different design from the item depicted in the original exhibit (at [7]).
- The court's reasoning turned on the marginal probative value of the tendered material relative to what could already be inferred from the photograph already in evidence, rather than on any categorical rule of inadmissibility.
- The absence of any connection between the sheath in photograph 112 and either party to the events formed part of the context in which the tender was evaluated (at [4]).
- Marking the rejected photograph bundle for identification, rather than admitting it, preserved the record of the tender without the material becoming part of the evidence before the court (at [8]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated