Citation: R v Bushell; R v Tozer (No 9) [2023] NSWSC 1445
Court: Supreme Court of New South Wales
Date: 25 July 2023
Judge(s): Rothman J
Background
This decision arose during a murder trial involving two accused. Before the jury was empanelled to hear evidence, the Crown sought to tender crime scene photographs and body camera footage depicting the deceased, whose body had partially decomposed.
Defence counsel objected to portions of this material on the basis that its confronting nature risked causing unfair prejudice to the accused beyond any legitimate probative value. The Crown had already taken steps to reduce the impact of the material, including pixilating the deceased's face in the footage.
The hearing was conducted on the voir dire (a preliminary hearing held in the absence of the jury to determine admissibility), with the photographs marked Exhibit H and the body camera footage marked Exhibit J for that purpose.
Legal Issues
- Whether the three crime scene photographs depicting partial decomposition of the deceased were more prejudicial than probative, such that they should be excluded.
- Whether the body camera footage should be excluded in whole or in part, including on the basis that an officer's spoken opinion in the footage could mislead the jury.
- Whether the close-up depiction of decomposition at the neck in the body camera footage had sufficient relevance to warrant its disclosure to the jury.
Decision
Issue 1: Admissibility of the photographs
Rothman J held that the fundamental test for admissibility was relevance, and that the photographs were plainly relevant. The key question was whether their confronting nature rendered them more prejudicial than probative (at [8]). His Honour concluded that the photographs were not so confronting as to warrant exclusion and admitted all three, noting that an inexperienced observer might not even recognise the visible decomposition as such without having it explained during the trial (at [6], [9]).
Issue 2: The officer's spoken opinion in the body camera footage
His Honour identified that an officer in the footage used words to the effect that an injury to the neck area was of unknown cause, suggesting it could be "misadventure or decomposition." Rothman J held that this opinion was potentially misleading to the jury because the evidence at trial would not support a finding of misadventure; the damage depicted was decomposition only (at [10]). Those words were therefore inadmissible and were to be muted. The Crown accepted this course (at [11]).
Issue 3: The close-up footage of neck decomposition
Rothman J expressed concern about the close-up depiction of decomposition at the neck, noting it could cause distress to jurors unaccustomed to such imagery (at [13]). His Honour indicated that unless the Crown could demonstrate that this specific depiction carried particular significance or relevance beyond the general relevance of showing the deceased's body and its position, it would be inappropriate to show the jury. The ruling was made on that basis, leaving open the possibility that the Crown could provide further submissions (at [13], [14]).
Orders Made
- The crime scene photographs (Voir Dire Exhibit H) were admitted into evidence in the trial.
- The body camera footage (Voir Dire Exhibit J) was admitted in edited form, with the officer's opinion regarding possible misadventure muted.
- The close-up depiction of decomposition at the neck was excluded from the footage shown to the jury, absent further submissions from the Crown as to its particular relevance.
Key Takeaways
- The Supreme Court confirmed that relevance is the primary test for admissibility of crime scene photographs, with exclusion warranted only where the confronting nature of the material creates prejudice that outweighs its probative value (at [8]).
- Photographic evidence of a deceased's body in a state of decomposition is not automatically excluded merely because it may be distressing to jurors; the material must be assessed on its own facts (at [9]).
- Where a police officer's spoken opinion in body camera footage could mislead the jury by raising a factual possibility unsupported by the evidence at trial, that portion of the audio is inadmissible and must be excluded (at [10]-[12]).
- Discrete and particularly graphic depictions within otherwise admissible footage may be excluded if the Crown cannot demonstrate relevance beyond what the broader footage already establishes (at [13]).
- Courts retain a discretion to require further submissions before ruling finally on the admissibility of specific segments of visual evidence, rather than ruling on admissibility of the footage as a whole in one step (at [13]-[14]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated