Citation: R v Carberry (No 4) [2023] NSWSC 176
Court: Supreme Court of New South Wales
Date: 1 March 2023
Judge(s): Hamill J
Background
The accused stood trial for an alleged offence said to have occurred in Griffith, New South Wales, on 11 September 2020. The officer in charge of the investigation was called as the final prosecution witness. Before that witness gave evidence, the defence raised objections to two discrete categories of prosecution evidence.
The first category was meteorological data: a Bureau of Meteorology record showing the temperature in Griffith at 9:00am on the relevant morning was approximately 5.9 degrees Celsius. The second category was a set of six photographs (collectively Exhibit VD-F) depicting the exterior of two neighbouring properties at 9 and 11 Middleton Avenue, Griffith.
The photographs were sourced differently and served different purposes. Three depicted the back staircase of 9 Middleton Avenue, and three depicted a side entrance of 11 Middleton Avenue. The photographs of 11 Middleton Avenue were taken only days before the ruling, more than two years after the events in question, and their admission became the more contested issue.
Legal Issues
- Whether temperature evidence obtained from the Bureau of Meteorology crossed the threshold of relevance under the Evidence Act 1995 (NSW)
- Whether photographs 1, 2 and 3 (depicting the back staircase of 9 Middleton Avenue) were relevant and admissible
- Whether photographs 4, 5 and 6 (depicting the side entrance of 11 Middleton Avenue, taken very recently) were relevant and admissible, given they had not been available to defence counsel during cross-examination of a key witness
- Whether any unfair prejudice arising from the late production of photographs 4 to 6 could be remedied, and if so, how
Decision
Temperature evidence: Hamill J accepted that the relevance threshold is a low one and was satisfied the temperature evidence crossed it. The cold temperature was capable of rationally affecting the jury's assessment of two matters: whether the accused was credibly asleep on an outdoor staircase at that time, and why the deceased's car window was open. The judge rejected the submission that a jury could simply draw on common sense or general knowledge, noting that Griffith is geographically distant from the court, temperatures vary significantly from day to day, and a precise contemporaneous measurement is more probative than speculation. The evidence was admitted.
Photographs 1, 2 and 3: These photographs of the back staircase at 9 Middleton Avenue were admitted without major controversy. Although photographs 2 and 3 were taken recently and the scene had changed, those changes would be apparent to the jury and could be explained in evidence. The photographs offered a useful additional perspective on the staircase layout in circumstances where no site view had been conducted.
Photographs 4, 5 and 6: The more contested photographs depicted the side entrance of 11 Middleton Avenue, and their relevance stemmed from a key witness's statement, given to police on the day of the events, that she had been standing at that side door. Her position and capacity to observe what she claimed to have seen became a live dispute during cross-examination. The photographs had not existed when she was cross-examined, and the judge acknowledged that their earlier availability could have enabled more targeted questioning. A lamppost visible in one photograph was raised as a potential source of jury speculation, but Hamill J dismissed that concern entirely, finding no evidentiary basis for any inference that it carried significance beyond its ordinary presence.
Remedy for potential unfairness: Rather than excluding photographs 4 to 6, Hamill J found the potential unfairness could be cured by recalling the witness for further examination using the photographs, noting that such an application would be granted. The judge found the evidence relevant and the prejudice manageable. In the event, the prosecution resolved the issue differently: after the ruling, it chose to withdraw the tender of photographs 4, 5 and 6 rather than recall the witness.
Orders Made
• The photographs in Exhibit VD-F are admissible
• An application to recall Ms O'Hanlon for further examination or cross-examination will be granted
Key Takeaways
- The relevance threshold under the Evidence Act is a low one: evidence need only be rationally capable of affecting a fact in issue, and Hamill J confirmed that precise meteorological data satisfies that test where the temperature at a specific time and place is potentially probative of a party's conduct or credibility.
- A jury's general knowledge or common sense cannot substitute for specific, measured evidence, particularly where the relevant location is distant from the court and the events occurred years before trial.
- Where photographs are produced late and their earlier availability might have changed the course of cross-examination, exclusion is not the only remedy available to the court. Recalling the relevant witness under s 46 of the Evidence Act 1995 (NSW) can address the unfairness without preventing the prosecution from placing potentially important evidence before the jury.
- Speculation about what a jury might improperly infer from an incidental feature of a photograph (in this case, a lamppost) will receive short shrift where no evidentiary foundation for that inference exists.
- Even where a court rules evidence admissible, the tendering party retains the option of withdrawing the tender, as the prosecution did here with photographs 4 to 6 once the recall mechanism was flagged as the curative path.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 46 (power to recall witnesses)
Cases cited: No cases were cited in the judgment.