Citation: R v Mackie (No 4) [2019] NSWSC 457
Court: Supreme Court of New South Wales
Date: 24 April 2019
Judge(s): Lonergan J
Background
The accused stood trial for the murder of a deceased person. On day ten of the trial, a tender dispute arose over a DVD recorded in 2018 in which the officer in charge of the investigation demonstrated wielding a block splitter inside a bathroom at premises that were central to the Crown's case. The accused had allegedly made admissions to an undercover operative that she had struck the deceased with a block splitter in that bathroom. Uncontested forensic evidence established that the deceased died of ligature strangulation, not a head injury.
The Crown sought to tender the DVD to address a potential concern the jury might hold about the bathroom's size. Based on an architect's drawing and photographs already in evidence, the Crown apprehended that jurors might doubt whether swinging a block splitter in such a confined space was physically practical. Defence counsel indicated she would not be making any spatial-impracticality submission of the kind made by senior counsel at the previous trial.
Legal Issues
- Whether the DVD demonstration met the test of relevance under s 55 of the Evidence Act 1995 (NSW)
- Whether, if relevant, the DVD should nonetheless be excluded under s 135 or s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice or misleading the jury
Decision
Issue 1: Relevance under s 55
Lonergan J held that the DVD failed the threshold test of relevance under s 55 of the Act (at [14]). The fact in issue was whether the accused herself, in October 2015, wielded a block splitter (not the one shown in the DVD) and used it to attack the deceased's head in the bathroom (at [13]). The demonstration showed only a tall woman who was not the accused swinging a different block splitter in the bathroom some three years after the relevant events (at [15]).
Nothing in the demonstration could, if accepted, rationally affect, directly or indirectly, the assessment of the probability of the existence of that fact in issue (at [14]). Because the Crown's apprehension about jury concern rested on a submission that defence counsel confirmed she would not be making, the foundation for the tender was further undermined (at [7]-[9]). The DVD was rejected on the basis of relevance alone (at [16]).
Issue 2: Discretionary exclusion under ss 135 and 137
Having rejected the DVD for irrelevance, Lonergan J did not need to rule on the discretionary exclusion arguments. The defence submission was noted: the DVD risked the jury transposing the officer's physical demonstration onto the accused, and the visual presentation was described as inaccurate and gratuitous (at [10]-[11]). No ruling on ss 135 or 137 was made.
Orders Made
- The DVD demonstration is rejected on the basis of relevance.
Key Takeaways
- Under s 55 of the Evidence Act 1995 (NSW), a demonstration must be capable of rationally affecting the probability of a fact in issue; a reconstruction performed by a different person, using a different object, three years after the relevant events, failed that test (at [14]-[15]).
- Relevance requires a logical connection to the specific fact in issue. Here, the fact in issue was the accused's own conduct with a specific weapon; the DVD could not speak to that question (at [13]-[14]).
- Where defence counsel indicates she will not make the submission that the Crown fears, the Crown's basis for tendering rebuttal evidence may be significantly weakened, even if the Crown presses the tender on the ground that the jury might independently develop the same concern (at [7]-[9]).
- The Supreme Court found it unnecessary to reach the discretionary exclusion questions under ss 135 and 137 once the evidence failed the primary relevance threshold, leaving those arguments unresolved (at [10]-[11], [16]).
- Forensic evidence of cause of death bore on the relevance analysis: because the deceased died of strangulation rather than a head injury, the probative weight of any demonstration involving the alleged weapon was further diminished in context (at [3]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 55, 135, 137
Cases
- Not stated