Supreme Court New South Wales Medium Neutral Citation: R v Tran (No 2) [2022] NSWSC 1391 Hearing dates: 23 September 2022 Decision date: 23 September 2022 Jurisdiction: Common Law Before: Button J Decision: The axe is not admitted into evidence Catchwords: EVIDENCE – admissibility of homicide weapon – where elements of murder are conceded – where partial defence of substantial impairment relied upon – where there is other evidence related to the manner of killing including a photo of axe and graphic descriptions of the killing – where danger of unfair prejudice outweighs probative value – axe not admitted Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) s 137 Category: Procedural rulings Parties: Rex (Crown) Thanh Tran (Accused) Representation: Counsel: K Jeffreys (Crown) J Manuell SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2019/83236 Publication restriction: Nil REVISED EX TEMPORE JUDGMENT 1. This objection (pursuant to s 137 of the Evidence Act 1995 (NSW)) follows the accused pleading not guilty to murder but guilty to manslaughter. It has been made clear from an early stage that the basis of that plea is reliance on the partial defence of substantial impairment: see s 23A of the Crimes Act 1900 (NSW). 2. It has been explained to the jury that the elements of murder are conceded. And, as my Document 2 explains, and as counsel conceded, at the least an intention to commit grievous bodily harm was present at the time of the fatal assault. 3. There is no dispute that the accused used an axe to effect the death of the deceased extremely violently. The question now is whether that axe should go into the jury room, suitably packaged. 4. There has already been evidence of a photo of the axe tendered, along with a scale on the photo. I would have thought that, if the Crown sees fit, other attributes of the item could be placed before the jury orally; for example, its weight, or any other aspect of it. 5. The point is made by defence counsel that s 137 is engaged. In particular, an aspect of s 137 is that it is contingent, in terms of not a finding of probative value being outweighed by unfair prejudice in fact, but rather simply "the danger of unfair prejudice." 6. Tragically, the face and head of the deceased were struck repeatedly and very heavily with the axe. 7. There has already been evidence placed before the jury that a witness said that process sounded like "chopping meat". There is also evidence before the jury of "a gurgling sound" being heard. There are also some very illuminative CT scans, about which the forensic pathologist in oral evidence drew the metaphor of an eggshell having been cracked repeatedly. 8. The importance of the establishment of an intention to kill, I think, in the circumstances of this case, is that it feeds into the "evaluative judgment", what I call element 6 of the partial defence of substantial impairment (which appears at my Document 3 to the jury): s 23A(1)(b) of the Crimes Act. 9. It is not denied by defence counsel that that is the type of contextual material upon which the jury can reflect in considering whether any impairment was "so substantial" as to warrant reduction from murder to manslaughter. 10. An important aspect of this ruling is that defence counsel has made it clear that, as a practical matter, it is not going to be denied - that is the expectation at least - that an intention to kill did exist at the time of the fatal assault. 11. I think, with respect, that is to be expected, because my reading of the evidence as the tribunal of fact on the voir dire is that the inference is virtually overwhelming that that is what was in the mind of the accused at the time of the fatal assault. 12. That means that, as currently advised, that fact is not really a "fact in issue", as a practical matter. 13. It also means that, with regard to all of the other evidence that has gone to the jury already, remembering that the jury already has a scaled photograph of the axe, that I think the axe itself going into the jury room has reasonably low probative value. 14. I also think, respectfully, that the danger of unfair prejudice is reasonably low, as follows. 15. As for the axe itself that effected the homicide: there is nothing horrific or disgusting about it. As Madam Crown has said, it is also packaged in a way that removes the observer from contact with its attributes in an absolutely direct way. 16. Having said that, Parliament has asked me to reflect on contingencies by use of the phrase "the danger of unfair prejudice". I think that it is one thing for a person involved in the criminal justice system for many years to be used to looking at and thinking about homicide weapons, as opposed to a layperson perhaps. Holding it in one's hands - a plastic container that contains an item that was used violently to end the life of a fellow human being - may, on the part of some jurors, give rise to a danger of unfair prejudice. 17. In short, it is a matter of thinking about contingencies, and it is also a matter of thinking about balancing two things that I assess as being reasonably low. But I think ultimately that danger does outweigh the probative value, as it currently stands. 18. Accordingly, because s 137 is not in truth a discretion, but rather is a mandatory regime of exclusion if one thing outweighs another, I am called upon to exclude it. 19. Having said that, I think it is quite conceivable that if something were to change unexpectedly - for example, if Mr Tran or one of the psychiatrists started to call into question whether in truth there was an intention to kill - then the Crown's application to tender the axe could be revisited. 20. But at this stage, I think s 137 is engaged, so the axe will not be going into the jury room. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2022