Supreme Court New South Wales Medium Neutral Citation: R v Carberry (No 4) [2023] NSWSC 176 Hearing dates: 01 March 2023 Date of orders: 01 March 2023 Decision date: 01 March 2023 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: 1. The evidence proposed by the Prosecutor to be led by the officer in charge as to the temperature in Griffith at 09.00am on 11 September 2020 is admissible. 2. The photographs contained in Ex VD-F are admissible. 3. If an application is made to recall Tearna O'Hanlon pursuant to s 46 of the Evidence Act 1999 (NSW), leave will be granted. Catchwords: CRIMINAL LAW – evidence – relevance – circumstantial evidence – lamppost there because it's there – no question of principle Legislation Cited: Evidence Act 1999 (NSW), s 46 Category: Procedural rulings Parties: Rex (Crown) Saimone (Simon) Carberry (Defendant) Representation: Counsel: K Ratcliffe (Rex) T D Anderson SC (Carberry) Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) Styles Law Solicitors (Carberry) File Number(s): 2020/335222 Ex tempore JUDGMENT (REVISED) 1. Objection is taken to two discrete pieces of evidence sought to be led by the prosecution through the officer in charge of the investigation who will be the last prosecution witness in the trial. The first objection relates to evidence of the temperature in Griffith at about the time of the alleged offence, which the officer obtained through enquiries with the Bureau of Meteorology. The evidence will be that at 09.00am on 11 September 2020 the temperature in Griffith was about 5.9 °C. 2. Objection is taken on the basis that it is, in a sense, pointless evidence and it is contended, at least inferentially, that the evidence therefore lacks relevance in the sense that it is not capable rationally of bearing upon a fact in issue. The prosecution submits it has relevance in two ways. First, it may cause a jury to find unlikely the accused's case that he was asleep on the back steps at the time, or shortly after or before, the incident, it being so cold; and secondly, it supports the prosecution case that the car window was opened because of a conversation that happened between the deceased and those outside the car who had, on the prosecution case, lured him there. The temperature being so cold, the prosecution submits it is unlikely that the deceased would be driving around with his window open. 3. I accept Mr Anderson SC's submissions to a point, but ultimately I am satisfied that both kinds of relevance do arise here. I do not accept the submissions to the effect that the jury can essentially use its knowledge of the world, or common sense, to know the temperature in Griffith. We're a long way from Griffith, temperatures vary wildly day to day, and a precise measurement at some hours after the alleged incident is far more probative than a jury from Wagga Wagga guessing, based on its experience of the world, what the temperature in Griffith was two and a half years ago at a particular time in September. 4. I do not think the matter is, and I think Mr Anderson acknowledges this by the diffidence of his objection, a matter of enormous moment, but I am satisfied that the prosecution has crossed the threshold of relevance, which is a fairly low one, and that it does have the capacity rationally to affect the jury's assessment of why the window was open in the car, and that it would not have been open otherwise. I take on board that Mr Anderson says that's not really in dispute anyway, but I also take into account the expected evidence of the accused will be that he was sleeping on those stairs when it was so cold. 5. So, I am satisfied that that evidence is admissible and I so find. 6. The second objection relates to a series of six photographs which have become Exhibit VD-F. They are photographs, respectively, of the houses at 9 and 11 Middleton Avenue, Griffith. They are tendered for different purposes and their sources are different. They are numbered 1 to 6. Photograph number 1 is, at least in one way or another, before the jury already because it is a still image taken from the ISRAPS presentation, which is Exhibit D. A similar type of photograph was tendered in the accused's case over objection as part of Exhibit 1. It simply depicts the back stairs of 9 Middleton Avenue. Photographs 2 and 3 are of the same staircase, only they are photographs taken as recently as last weekend, that is to say more than two years after the events. 7. It is clear, simply by looking at photograph 1, and then photographs 2 and 3, that they look different; there are different things surrounding the staircase. That fact will be very obvious to the jury, as it will be when, as I anticipate it will in its duty of fairness, the prosecution adduces the evidence that photos 2 and 3 are very recent photographs. The main objection to that is it does not add very much to the picture that the jury already has, and whilst that may be so, they do provide a slightly different perspective of the staircase and the three steps. 8. I am satisfied that they have some relevance and will assist the jury, given that we have not taken them on a view to the scene to get a better understanding of the layout, insofar as it is relevant to various of the principal participants' movements and activities on the night in question. So, I am satisfied that photographs 1, 2 and 3 are relevant and admissible. 9. A greater controversy surrounds photographs 4, 5 and 6. They depict a side entrance of 11 Middleton Avenue and they obtain their relevance, on the Prosecutor's submission, based first on things that Ms O'Hanlon said on the day of the events, that is 11 September 2020, when she attended two separate interviews with the police and in the course of the interviews provided a sketch plan which has now become Exhibit H on the trial. 10. In that sketch, she drew or the police officer drew for her and she adopted, a sort of mud map of the two houses at 9 and 11 Middleton Avenue and indicated on that map, by the word "me" with an arrow, that she was standing at a side door of 11 Middleton Avenue. There is, following the cross-examination, dispute both about her capacity to see what she said she saw and also whether she was standing in that position at all, or perhaps in the house next door at 9 Middleton Avenue. That controversy which emerged in her cross-examination is, I think, reading between the lines, the reason that the police made a trip to Griffith last weekend to take these photographs. 11. There are a number of bases of the objection to these photographs, one of which is that the photographs do not depict the scene at the relevant time, rather, they depict it some years later, and again, as with photographs 2 and 3, there are clearly changes. For example, there is foliage growing at some height around the side entrance which does not appear to have been the case back in 2020. That is a matter that can be explained to the jury and no doubt will be in the evidence being adduced and, if not, in the cross-examination. 12. The more potent objection is that had these photographs been before the jury or in counsel's brief, or photographs of that nature, then counsel for the accused would surely have cross-examined upon them and raised the type of questions that are being raised as to Ms O'Hanlon's capacity to see what she says she saw from that location. 13. It is also suggested that there is a lamppost depicted in photograph 4 which, whilst there was cross-examination generally about the number of lamps in the area and whether they were illuminated or if anybody knew, may lead the jury to speculate that there was some arrangement to meet under that lamppost. I can see no basis upon which to assume the jury would so speculate, because there is absolutely no evidence to support that proposition. I would be shocked if any submission was made to that effect. The lamppost is there because it is there. I can see no force in that submission. 14. However, I do see force in the submission that had these photographs been in counsel's brief there may have been cross-examination on the issue. That is true, and given that Ms O'Hanlon said as early as 11 September 2020 that that is where she was standing it may be somewhat surprising, and may be an oversight on the part of the investigators, that similar photographs were not taken contemporaneously. However, the reality is they were not and that the contest about where she was standing and what she could see emerged in cross-examination, and there is a practical solution to the potential unfairness. I accept that if the photos were taken earlier and provided in the cross-examination it would have been far more specific than simply putting to the witness that she was not standing there and that she could not see what she said she could see. 15. The practical solution is that she be recalled for further brief examination or cross-examination [1] with the photographs. That is not an ideal outcome, but I am of the view that the prosecution should not be prevented from adducing the evidence that may give the jury, again, a better understanding of the evidence, and particularly the evidence of the key witness in the case whose evidence will be subject to strong warnings and had certain deficiencies which I think were patent to anybody who was in the courtroom when it was given. She had to be cross-examined by the Prosecutor and there were times when it was quite clear she was apathetic and not really doing her best. Both counsel put that to her in different ways. 16. I am satisfied the evidence is relevant and I am satisfied there is no unfair prejudice that cannot be cured, and the way it can be cured is if there is an application to recall her, and that application will be granted. I will say that in anticipation of such an application. For that reason, I find that each of the photographs in Exhibit VD-F are admissible. Post script 1. After this ruling was made the Prosecutor decided, rather than recall Ms O'Hanlon, it would withdraw the tender of photographs 4, 5 and 6. ********** Endnote 1. See Evidence Act 1999 (NSW), s 46. Amendments 08 March 2023 - Trial concluded - publication restricted lifted. 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: 08 March 2023