Citation: R v Davis and Quinn (No 3) [2020] NSWSC 1750
Court: Supreme Court of New South Wales
Date: 7 December 2020
Judge(s): N Adams J
Background
Two accused, a man and his girlfriend, stood trial for the murder of a man who had broken into their home armed with a pistol and knuckledusters. The deceased fled the premises after allegedly punching the first accused, fracturing his eye socket, and grabbing the girlfriend's handbag. Eyewitnesses described the first accused catching up with the deceased in the street and striking him once to the head with a samurai sword, killing him.
The Crown's case was that the two accused formed a joint criminal enterprise to chase and inflict violence on the deceased as an act of retribution, with the first accused acting with intent to kill or cause grievous bodily harm. The accused maintained there was no such agreement, and that when the fatal blow was struck, the deceased had produced a pistol, raising issues of self-defence and excessive self-defence.
A contested evidentiary question arose late in the Crown case, when the prosecution sought to tender a Facebook video of the first accused demonstrating martial arts and weapon skills. The video had been made in 2016 as an audition tape for a television fantasy series called The Shannara Chronicles. The accused's counsel objected on grounds of relevance and, alternatively, prejudice under s 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the audition video was relevant within the meaning of ss 55 and 56 of the Evidence Act 1995 (NSW), in that it had the capacity to rationally affect the assessment of the probability of a fact in issue.
- Whether, even if relevant, the probative value of the video was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW), requiring its exclusion.
- Whether proposed modifications to the footage, including blacking out the accused's face, could adequately address any prejudicial effect.
Decision
Adams J conducted a voir dire (a hearing within the trial to determine admissibility of evidence, conducted in the absence of the jury) during which the audition video was played, several weapons seized from the accused's premises were tendered, and the officer in charge gave evidence. The video ran for approximately two minutes and showed the accused wielding various swords and knives with an intense, aggressive expression, accompanied by a dramatic fantasy-style soundtrack, dressed in black and filmed among trees.
The Crown submitted that freeze-frames of the footage, showing the accused raising a sword behind his head with both hands before bringing it down, were highly probative because they closely resembled the physical action of the fatal blow. Adams J accepted the footage had some potential relevance, but identified a central factual difficulty: the swords depicted in the video were shorter and lighter than Exhibit Y, the samurai sword actually used in the killing, and the officer in charge had not weighed the items or resolved whether any sword in the video was the same weapon.
Her Honour found that the real danger from the footage was that the jury would conflate the aggressive, warrior-like character the accused was performing in the audition with his actual state of mind and conduct on the night of the killing. The theatrical nature of the footage, including the soundtrack, the costuming and the "cranky" facial expression, made any probative value it possessed substantially outweighed by the risk of unfair prejudice. Adams J also accepted the submission that, if admitted, the footage was likely to receive repeated media coverage, compounding its sensational effect.
The proposal to black out the accused's face was rejected as not merely insufficient but counterproductive. Adams J reasoned that jurors familiar with televised news coverage would likely associate a blacked-out face with a criminal suspect, making the footage more prejudicial rather than less. The audition video was ruled inadmissible.
Orders Made
• The audition tape is inadmissible.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant, even where the evidence has some capacity to rationally affect findings on contested facts.
- The Supreme Court applied the principle, drawing on McHugh J's reasoning in Papakosmas v The Queen, that unfair prejudice arises where evidence may affect the jury in a way logically unconnected with its legitimate purpose, such as by inviting character-based reasoning.
- Theatrical or performative footage depicting an accused in an aggressive role carries a particular risk that jurors will conflate the performed character with the accused's actual conduct or state of mind at the relevant time.
- Probative value derived primarily from a freeze-frame moment within a longer, sensational piece of footage does not overcome the prejudice generated by the footage as a whole, particularly where key foundational facts (such as whether the same weapon appears) remain unresolved.
- A proposed modification to obscure the accused's face was itself found to increase prejudice, because jurors would likely associate the visual convention of a blacked-out face with criminal suspicion rather than with anonymisation.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 137
Cases:
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- R v Davis and Quinn (No 1) [2020] NSWSC 1615
- R v Davis and Quinn (No 2) [2020] NSWSC 1726