R v Phanekham (No 1) [2013] NSWSC 1695

Supreme Court New South Wales

Medium Neutral Citation: R v Phanekham (No 1) [2013] NSWSC 1695 Hearing dates: 18 November 2013 Decision date: 18 November 2013 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Tender of photographs allowed. Catchwords: EVIDENCE - whether probative value of photos outweighed by their prejudicial effect - no question of principle. Legislation Cited: - Evidence Act 1995 Category: Procedural and other rulings Parties: Crown (Prosecutor) Viengsavanh Phanekham (Accused) Representation: Counsel: Ms G.M. O'Rourke (Crown) P.D. Young SC (Accused) Solicitors: Director of Public Prosecutions (Crown) Breton Legal (Accused) File Number(s): 2012/193773 Publication restriction: Nil

EX TEMPORE Judgment

Re admissibility of evidence; see page 5 of transcript 1The Crown proposes to tender as part of its case two photographs of the single knife wound which is said to have led to the death of the deceased. 2Senior counsel for the accused, Mr Young SC, submits that they should be excluded on the basis that their prejudicial effect outweighs their probative value (Evidence Act 1995, s 137). 3At the risk of over-simplification, the Crown case is that the accused stabbed the deceased once and, in doing so, intended to kill or inflict grievous bodily harm upon him. 4It is clear from other materials said to support the Crown case that there is an issue as to whether the accused voluntarily stabbed the deceased or whether it was some act of the deceased that in some way or other led to him impaling himself on the knife. Further, given that there is only one stab wound, there is, of course, an issue as to whether, even if the act was a voluntary and deliberate one, it was undertaken with the requisite intent. At least having regard to those two issues, the nature and size and scope of the stab wound would appear to be of great significance to the jury's consideration of whether the wound reflected a deliberate act and whether it was done with the necessary intent. 5As I understand it, the relevant Crown witness will use the photographs to explain to the jury what they know about the direction and orientation of the knife as it entered the deceased. It is true that this could be illustrated to some extent by diagrams. However the best evidence of that is the photographs. On what I know at the present I am satisfied that the tender of the photographs would yield evidence of reasonably significant probative value. Strictly speaking that conclusion means that the discretion in s 137 does not arise, however, for the sake of completeness I record that I would not regard the prejudicial effect of the two photographs as particularly great. The wounds have been cleaned and debrided. As a consequence the photographs do not depict an excess of blood, nor is there any other distressing depiction of the deceased in situ when being examined. Needless to say, the two photos are not particularly pleasant but I consider that their prejudicial effect is not particularly great and does not outweigh their probative value. Accordingly, I will allow the Crown to tender the two photographs.