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Supreme Court 23 September 2022

R v Tran (No 2)

[2022] NSWSC 1391

Homicide
EVIDENCE ADMISSIBILITY OF HOMICIDE WEAPON WHERE ELEMENTS OF MURDER ARE CONCEDED AXE NOT ADMITTED

Citation: R v Tran (No 2) [2022] NSWSC 1391
Court: Supreme Court of New South Wales
Date: 23 September 2022
Judge: Button J

Background

The accused pleaded not guilty to murder but guilty to manslaughter, relying on the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW). The elements of murder were conceded, and it was accepted that the accused had at minimum an intention to cause grievous bodily harm at the time of the fatal assault. The killing was carried out with an axe in an extremely violent manner.

The trial proceeded before a jury. The jury had already received a scaled photograph of the axe, along with graphic evidence including a witness description of the sounds of the assault and CT scans of the deceased's injuries, accompanied by a forensic pathologist's oral evidence comparing the skull damage to a repeatedly cracked eggshell.

The Crown sought to tender the physical axe as an exhibit to go into the jury room. Defence counsel objected under s 137 of the Evidence Act 1995 (NSW).

  • Whether the physical axe was admissible as evidence in a murder trial where the elements of murder were conceded and the sole live issue was the partial defence of substantial impairment
  • Whether the danger of unfair prejudice outweighed the probative value of the axe under s 137 of the Evidence Act 1995 (NSW), such that exclusion was mandatory

Decision

Button J identified that s 137 of the Evidence Act operates as a mandatory regime of exclusion, not a discretion. If the danger of unfair prejudice outweighs probative value, the court has no choice but to exclude the evidence. The enquiry is framed in terms of "the danger" of unfair prejudice, meaning the court must consider contingencies rather than simply assess prejudice as a demonstrated fact.

His Honour assessed the probative value of the axe as reasonably low in the circumstances. The key factual question of intention was effectively conceded and, in any event, the inference was characterised as "virtually overwhelming" on the voir dire evidence. That made the physical characteristics of the axe of limited additional evidentiary weight, particularly given the jury already had a scaled photograph and extensive descriptive evidence of the killing.

His Honour also assessed the danger of unfair prejudice as reasonably low in absolute terms: the axe was packaged, and was not itself visually horrific. However, Button J noted that jurors, unlike experienced criminal justice participants, might be affected by physically holding a packaged item used violently to end another person's life. That contingent risk of prejudice was sufficient to tip the balance.

Balancing two factors both assessed as reasonably low, Button J concluded that the danger of unfair prejudice nonetheless outweighed probative value, and the axe was excluded. His Honour left open the possibility of revisiting the ruling if circumstances changed during the trial, for example if the existence of an intention to kill were put in issue by the accused or expert witnesses.

Orders Made

• The axe will not be going into the jury room (excluded pursuant to s 137 of the Evidence Act)

Key Takeaways

  • Section 137 of the Evidence Act 1995 (NSW) is a mandatory rule of exclusion, not a discretion: once the danger of unfair prejudice is found to outweigh probative value, the court must exclude the evidence regardless of other considerations.
  • The statutory phrase "danger of unfair prejudice" requires a court to assess contingencies, including the risk that jurors without experience in criminal proceedings may respond emotionally to physically handling a homicide weapon, even where the weapon itself is not visually disturbing.
  • Where the elements of a charge are conceded and the sole live issue is a partial defence, a piece of physical evidence directly related to those conceded elements carries substantially reduced probative value.
  • A ruling excluding evidence under s 137 is not necessarily final: Button J expressly noted it could be revisited if a previously conceded fact, such as intention to kill, was later placed in genuine dispute by the accused or expert witnesses.
  • Existing evidence already before a jury, including photographs, oral descriptions, and expert testimony, is a relevant factor in assessing the marginal probative value of additional physical exhibits tendered for the same purpose.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind as partial defence to murder)

Cases cited: No cases were cited in the judgment text.