Citation: R v Nancarrow (No 3) [2022] NSWSC 280
Court: Supreme Court of New South Wales
Date: 9 March 2022
Judge(s): Hamill J
Background
The accused stood trial for the death of a man (the deceased) following a confrontation at shared premises. The central factual dispute concerned the accused's whereabouts and actions in his upstairs room in the period before the fatal stabbing occurred on the staircase.
The prosecution contended that the accused had moved from his bed to a kitchen counter to pick up a knife in anticipation of a confrontation. The defence case was that the accused had been sitting on a lounge near the staircase, using a small knife to clean under his nails by the light of a handheld headtorch, before hearing the deceased call his name from downstairs.
The accused gave evidence that all lights in his room were off and the headtorch, resting in his lap, was the only illumination. He said he turned the headtorch off once the deceased returned to the house, and moved directly to the top of the stairs.
Legal Issues
- Whether the Crown Prosecutor's use of close-up photographs in cross-examination gave rise to unfairness or prejudice warranting a discharge of the jury.
- Whether those photographs had been properly disclosed to the defence before trial, within the meaning of the disclosure obligations under the Criminal Procedure Act 1986 (NSW) ss 141 and 142.
- Whether any failure to disclose was capable of causing relevant prejudice to the accused, justifying the drastic remedy of discharging the jury.
Decision
During cross-examination, the Crown confronted the accused with close-up or magnified photographs showing the headtorch sitting on the bed alongside remote controls and gaming controllers. The accused acknowledged the headtorch was on the bed but maintained he had not been lying on the bed at the relevant time, offering an explanation that the torch must have ended up there somehow and that he had not crossed the room because the floorboards were noisy.
Defence counsel applied for a discharge of the jury on the basis that the photographs had not been properly disclosed in advance, and that their use had caused unfairness. Hamill J refused the application immediately after it was made, reserving reasons.
In providing those reasons, his Honour noted that an ISRAPs presentation (an interactive 360-degree crime scene photography tool) had been disclosed to the defence well before trial. One of the camera angles in that presentation captured the items on the bed in a virtually identical way to the photographs used in cross-examination, and a still image from the ISRAPs was tendered as an exhibit during the application. This significantly deflated the force of the disclosure complaint.
His Honour further held that, even setting aside the disclosure question, the photographs carried limited capacity to damage the accused's credibility in a decisive way. The accused's explanation that he could not recall how the headtorch came to be on the bed was one the jury might find entirely unremarkable. Its presence on the bed did not disprove the accused's account of where he had been sitting, and even if the jury rejected that account, it did not follow that the accused had deliberately lied about the critical aspects of his evidence. The court concluded there was no relevant unfairness or prejudice requiring the discharge of the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that a discharge of the jury is a serious remedy and will not be granted unless there is genuine unfairness or prejudice that cannot otherwise be cured.
- Where material used in cross-examination was not disclosed in the precise form relied upon but a virtually identical image had been disclosed through other means (here, an ISRAPs crime scene presentation), no relevant non-disclosure arises.
- A reference in pre-trial disclosure to material being available for inspection may not, of itself, always satisfy disclosure obligations, but the court treated the ISRAPs presentation as substantive disclosure of the relevant imagery.
- In assessing prejudice, the court looked not only at whether the cross-examination had created drama in the moment ("the heat of battle") but at how far the evidence could realistically affect the jury's assessment of the accused's credibility on the central issues at trial.
- Sufficient uncertainty remained in the accused's evidence about the headtorch's location to limit the damage: the jury could reasonably find his inability to explain it was not indicative of deliberate untruth about the critical features of his account.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 141, 142
Cases
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Edwards v The Queen [2021] HCA 28; 95 ALJR 808
- Miller v R [2015] NSWCCA 206
- R v Azari (No 2) [2017] NSWSC 515
- R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 227
- R v Quami (No 40) [2016] NSWSC 807
- Re K (2002) NSWCCA 374
- Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448