Citation: [2022] NSWSC 1794
Court: Supreme Court of New South Wales
Date: 26 April 2022
Judge(s): Cavanagh J
Background
This decision is an evidentiary ruling made during a criminal trial in which two persons were deceased. Following the deaths, police searched the premises of the deceased and located a home-made implement consisting of a pole with a blade attached to it, which they photographed.
The accused sought to tender the photograph of the implement. The accused's position was that the implement demonstrated a tendency on the part of the deceased to be violent, aggressive, and willing to use weapons. The Crown opposed admission of the photograph, arguing it was irrelevant and had no probative value.
Legal Issues
- Whether the photograph of the home-made implement found at the deceased's premises was relevant and had sufficient probative value to be admitted into evidence.
- Whether the photograph could constitute tendency evidence under s 97 of the Evidence Act 1995 (NSW), given the absence of any connection between the implement and the events of the relevant day.
Decision
Issue 1: Probative value of the photograph
Cavanagh J rejected the tender on the basis that the photograph had no probative value in the circumstances (at [6]-[8]). The implement was located during a later police search of the deceased's premises, and nothing was known about when or how it came to be there, who owned or made it, or whether it had ever been used (at [6]).
Critically, the accused conceded that there was no evidence the implement was at or near the premises on the day of the incident, and no evidence that the accused had any prior knowledge of its existence (at [3]). In those circumstances, the photograph could not meaningfully bear on any issue in the proceedings.
Issue 2: Tendency evidence under s 97
The court also found the photograph did not satisfy the requirements for tendency evidence under s 97 of the Evidence Act 1995 (NSW) (at [7]). The accused conceded the implement fell outside the existing tendency notice that had already been ruled upon (at [5]). With no established connection between the implement and the deceased's conduct on the relevant day, the photograph could not demonstrate any tendency toward violence or weapon use (at [6]-[7]).
Orders Made
- The tender of the photograph is rejected.
Key Takeaways
- A photograph of an item found at the deceased's premises following a police search was held to have no probative value where no evidence connected it to the events in question, to the deceased's conduct on the relevant day, or to the accused's knowledge (at [6]-[7]).
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence requires more than the mere existence of an object: there must be a meaningful evidential connection between the item and the tendency sought to be proved.
- Concessions by the accused that the implement was not shown to have been present during the incident, and that the accused was unaware of it, were significant factors weighing against admission (at [3], [6]).
- The absence of basic provenance information, such as who owned or made the implement, when it arrived at the premises, and whether it had ever been used, was fatal to any claim of probative value (at [6]).
- Where a proposed exhibit falls outside an existing tendency notice and lacks independent probative value, it will not be admitted merely because it suggests a general disposition toward violence on the part of a deceased person (at [5], [7]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97
Cases
- Gardiner v Regina (2006) 162 A Crim R
- Hughes v R (2017) 263 CLR 338
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Bryce (No 2) [2014] NSWSC 498
- R v Cittadini [2008] NSWCCA 256
- R v Lockyer (1996) 89 A Crim R 457
- R v Sharpe (No 5) [2021] NSWSC 52