Citation: R v Khan (No 9) [2019] NSWSC 361
Court: Supreme Court of New South Wales
Date: 3 April 2019
Judge(s): Bellew J
Background
The accused stood trial in the Supreme Court, having pleaded not guilty on grounds of mental illness to engaging in a terrorist act: the stabbing of a man referred to as the victim. The central issue at trial was the accused's mental state at the time of the attack, specifically whether he appreciated the wrongfulness of his actions.
During a police interview, the accused explained that he had chosen his victim because he had seen him wearing a t-shirt bearing the words "Land of the free, because of the brave," adorned with stars, stripes, and an image of soldiers raising an American flag. The accused described this as the main reason he targeted the victim. The victim was not wearing the t-shirt at the time of the stabbing.
A photograph of the front of the t-shirt had already been admitted into evidence. A separate photograph showing the victim actually wearing the t-shirt had been marked for identification but not tendered, as it included images of two young children. After the jury sent a note requesting a photograph of the victim wearing the t-shirt, the Crown produced an edited version of that photograph with the children cropped out, and sought to tender it. Defence counsel objected.
Legal Issues
- Whether the edited photograph of the victim wearing the t-shirt was relevant to the proceedings, given that the victim was not wearing it at the time of the attack.
- Whether the photograph would add anything to evidence already before the jury, given that a photograph of the t-shirt alone was already in evidence.
Decision
Bellew J admitted the photograph, finding it clearly relevant to the sole issue in the case: the accused's mental state at the time of the attack. Although the victim was not wearing the t-shirt when stabbed, the relevance of the photograph derived in part from the accused's own police interview, in which he stated he had "targeted" the victim specifically because he had seen him wearing it on previous occasions.
The Crown's case was that this constituted a targeted attack, and that evidence of deliberate targeting was inconsistent with the accused failing to appreciate the wrongfulness of his conduct or acting during a psychotic or schizophrenic episode. The photograph of the victim wearing the t-shirt was therefore capable of supporting that argument in a way that added to the photograph of the t-shirt alone.
No submission was made that the probative value of the photograph was outweighed by the risk of unfair prejudice. Bellew J noted it would nonetheless be appropriate to warn the jury not to speculate about the portions of the image that had been cropped out.
Orders Made
• The edited photograph of Mr Greenhalgh wearing the "Land of the free" American t-shirt (with children's images cropped out) is admitted into evidence
• The jury should be warned not to speculate as to those parts of the image which have been cropped out
Key Takeaways
- Relevance under the Evidence Act 1995 (NSW) does not require that the evidence directly depict circumstances at the time of the alleged offence; a photograph of an item not present during the offence was admissible where it connected to the accused's own stated reasoning.
- The Supreme Court found that a photograph of the victim wearing the t-shirt added probative value beyond a photograph of the t-shirt alone, by corroborating the accused's account of having seen the victim wearing it and by supporting the Crown's targeted-attack narrative.
- Where an accused's mental state is the sole issue at trial, evidence bearing on the deliberateness or selectivity of the accused's conduct can be relevant to rebutting a mental illness defence.
- Even where no objection based on unfair prejudice is raised, a trial judge retains the discretion to direct the jury to avoid speculation about edited or cropped portions of a tendered photograph.
- The jury's own question about a piece of evidence does not bind the parties, but may prompt a party to reconsider the tender of material previously withheld.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
No cases were cited in the judgment.