Supreme Court New South Wales Medium Neutral Citation: R v MEYN, John Michael (No 3) [2012] NSWSC 1467 Hearing dates: 19-23, 27 and 28 November 2012 Decision date: 28 November 2012 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Tender of photographs allowed. Catchwords: CRIMINAL LAW - Evidence - objection to tender of photographs of deceased - whether probative value outweighs potential prejudice to accused - no question of principle. Legislation Cited: Evidence Act 1995 - s 137 Category: Procedural and other rulings Parties: Crown (Prosecutor) John Michael Meyn (Accused) Representation: Counsel: T.W. Thorpe (Crown) K.A. Chapple SC (Accused) Solicitors: Director of Public Prosecutions (Crown) George Sten & Co (Accused) File Number(s): 2011/116480 EX TEMPORE Judgment 1Objection is taken by Mr Chapple of senior counsel for the accused to the tender of six photographs numbered 24, 25, 31, 36, 37 and 39, in a bundle of photographs which it is anticipated will be tendered through Detective Flippence. For the sake of convenience, the bundle was exhibit B in the previous trial. 2The photos depict the deceased in situ in the granny flat where the accused is alleged to have murdered her. The basis of the objection is under s 137 of the Evidence Act 1995, namely, that the probative value is said to be outweighed by the danger of unfair prejudice. The nature of the unfair prejudice is ostensibly that which is often said to occur with distressing photos, namely that there is a risk that the jury may make a decision on an improper or an emotional basis having seen the photos. That basis could extend to an instinct to punish or inflict revenge on someone who has had some role in killing the deceased. 3During the course of argument, the Crown Prosecutor did not press for the admission of photos 31, 36, 37 and 39 but did seek to press photographs 24 and 25. Photograph 24 shows the deceased in situ covered by a towel with a bloodstain near her head. Photograph 25 is a closer up view which would also assist in considering whether there are evident injuries of strangulation. 4The Crown case is that the accused bashed and strangled the deceased. From the opening statements it is evident that it is in issue whether or not the accused formed the necessary intent to commit murder, in part because he was affected by his consumption of alcohol and also whether he acted in self-defence. 5There are subsidiary factual disputes concerning the accuracy of various statements the accused is said to have made. These include his assertion to the police that when he departed from the granny flat he did not know the deceased was dead and whether he admitted killing the deceased in a telephone conversation with a friend. It is anticipated that the evidence will be that during the course of that conversation, he told the friend that a towel had been placed upon the deceased. 6At least so far as those two subsidiary issues are concerned, it seems to me that those two photos have significant probative value. Moreover, the nuances that can often arise with questions of self-defence make it necessary for the jury to at least have in their own mind a good view of where the deceased's body ended, the state of the deceased's body, the relevant proximity of the bloodstain, and the manner in which she was left when the accused departed from the granny flat. Bearing this in mind, photos 24 and 25 at this stage appear to be likely to have significant probative value. I would not rate the prejudicial effect of these photos too highly, although that cannot be dismissed as they do show the deceased and they are clearly not pleasant. However, they are certainly not of the more gruesome kind that one sometimes sees depicted when tendered either in trials of this kind or in various television programs. 7Thus, accepting there is some potential prejudice, it certainly does not rise to a level that I can conclude that the probative value of the photos is outweighed by the danger of unfair prejudice. 8Accordingly, I will at the relevant time admit the tender of photographs 24 and 25. 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: 19 December 2012