R v Phanekham (No 2) [2013] NSWSC 1738

Supreme Court New South Wales

Medium Neutral Citation: R v Phanekham (No 2) [2013] NSWSC 1738 Hearing dates: 20, 21, 22 November 2013 Decision date: 26 November 2013 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Evidence rejected. Catchwords: EVIDENCE - accused was playing violent computer game before confrontation leading to death of deceased - whether evidence of nature of the computer game admissible - whether probative of state of mind of accused - whether probative value outweighed by prejudicial effect. Legislation Cited: - Evidence Act 1995 Cases Cited: - O'Leary v R (1946) 73 CLR 566 - R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 - R v Player [2000] NSWCCA 123; 217 ALR 578 - R v Serratore [2001] NSWCCA 123 Category: Procedural and other rulings Parties: Crown (Prosecutor) Viengsavanh Phanekham (Accused) Representation: Counsel: 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

Judgment

Evidence sought to be led by Crown regarding on-line video game 1On the third day of the trial objection was taken by senior counsel for the accused, Mr P. Young SC, to the leading of some evidence by the Crown concerning the nature of an on-line video game that the accused was playing in the immediate period prior to his confrontation with the deceased that led to the deceased's death. In particular, the Crown proposed to lead evidence from a witness, Don Baena, who was playing the game on-line with the accused. The Crown proposed to adduce the following description of the game from Mr Baena: "Diablo III is an action role-playing hack and slasher type game. You can be cast as a character including a witch doctor, barbarian, wizard, monk or demon hunter. The whole purpose of the game is to fight your way through this fantasy world and eventually kill the main villain titled 'Diablo'. The game is very violent. As a player, you kill enemies in a variety of ways. You can collect various types of weapons during a game which are used to kill your enemies. For example, a barbarian uses a sword to kill. The violence isn't in a first person mode, such as Doom or other games. The game is played in an overhead view. You actually can't zoom in and see the deaths up close. However, as a role-playing game it is all about hack and slash." 2I rejected the evidence and indicated that I would give my reasons later. These are my reasons for so ruling. 3The Crown case is that the accused was playing this game at his home on the evening of 20 June 2012. The Crown alleges that the accused was disturbed while playing this game by the yelling and screaming associated with abusive behaviour on the part of the deceased towards his own family at the house next door to the accused. The Crown alleges that the accused yelled out the to the deceased to tell him to stop and that the deceased challenged the accused to a confrontation in the street. The Crown allegation is that the accused armed himself with at least one knife and confronted the deceased in the street and deliberately stabbed him. 4It does not appear to be in serious dispute that the accused did attend the confrontation with the deceased armed with at least one knife. However, based upon both the transcript of a "000" call made by the accused soon after the confrontation and then later what he stated in his electronically recorded interview, there is a significant issue as to whether the single knife wound which is said to have caused the death of the deceased was occasioned by a deliberate act of the accused, or was instead caused accidentally as a result of the deceased running at the accused and onto a knife or knives held by the accused in an endeavour to scare him. 5In her careful written submissions provided in support of the application to tender the evidence, the Crown Prosecutor identified two separate but related bases for the admission of the evidence. The first was that the evidence was said to potentially demonstrate "the accused's state of mind several minutes" before the deceased was fatally wounded. It was submitted that the "evidence of the state of mind of the accused, at the time sufficiently proximate to the time of the alleged offence, is capable of showing what the accused's state of mind was at the time of the offence". 6Second, the Crown submitted that the evidence was admissible having regard to the judgment in O'Leary v R (1946) 73 CLR 566. In O'Leary it was held that evidence of assaults committed by the appellant upon other men earlier in the evening was admissible at his trial for later murdering a different person. At p 577, Dixon J stated that the appellant's "generally violent and hostile conduct [on the same night] might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide". The Crown noted that O'Leary had been applied in Adam v R [1999] NSWCCA 189; 106 A Crim R 510, R v Player [2000] NSWCCA 123, R v Serratore [2001] NSWCCA 123; 217 ALR 578, and R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304. In Adam it was explained that this kind of evidence was not tendency evidence (at [30]). The Crown sought to bring itself within this line of authority by contending that in this case: "The participation of the accused in a violent 'slashing and hacking' game for a period of several hours was part of the building up of the anger and frustration and his decision to arm himself and go outside and confront the source of his annoyance." (emphasis added) 7Mr Young SC submitted that the evidence was neither probative of any fact in issue (s 55) or that, if it was, its probative value was outweighed by its prejudicial effect (s 137). 8It is important to note that this material is not being tendered in support of any argument based on tendency reasoning. The Crown is not contending that the accused's participation in a violent video game involving "hacking and slashing" meant that he had some form of tendency to violence involving the use of knives. Instead the Crown contends that the evidence of him playing a violent video game of itself and without anything further is evidence that he had some unspecified "state of mind" analogous to the hostile and violent state of mind it contends he had when he confronted the deceased, or that otherwise playing the game would or might have led to him having a "build up of anger and frustration". 9In my view this is entirely speculative. There is no direct evidence as to the emotional state of the accused while he played the video game in question. There is no evidence from anyone observing him while he played or from another participant suggesting that he became angry and frustrated while playing, much less violent. There no evidence as to what character he was controlling in the video game and whether that character was "hacking and slashing" other characters. In O'Leary and many of the decisions that have applied it the accused actually engaged in the acts of violence or aggressive conduct in the immediate period that preceded or followed the alleged offence. Although a video game may itself be "very violent", its overriding characteristic is that it is a "game". In the ordinary course and without further evidence I cannot act on any basis other than that which involves persons disassociating themselves from both the actions and even the imputed emotions of the characters that they control. In my view there is simply no evidentiary basis for contending that the mere participation by the accused in a video game which is said to be violent meant that he shared in any alleged anger, frustration or violent intent that could be imputed to any character that he was said to be controlling. In those circumstances, I was not persuaded that the evidence had any probative effect (s 55). It is not probative of him having any state of mind much less any build up of anger or frustration on his part. Accordingly I rejected the evidence. 10In these circumstances it is not strictly necessary to consider s 137. However, for the sake of completeness, I add that in my view there is a very significant potential for prejudice to the accused if this evidence was adduced. The jury might reason that, because he was participating in a game in which characters used swords to kill or inflict serious harm upon other characters, he was therefore acting out the role of one of those video characters at the time he confronted the deceased. Alternatively, the jury might deploy tendency reasoning to conclude that, because he participated in a video game that is said to involve "hacking and slashing", he was more likely to engage in such conduct. This is not the reasoning sought to be relied by the Crown in adducing this evidence, yet the danger of the jury adopting these forms of reasoning is, in my view, quite significant. Thus, had I concluded that the evidence had some probative force, I would nevertheless have had to seriously consider whether to exclude this material under s 137 of the Evidence Act 1995. 11Finally, I should note that the adducing of this evidence was adverted to by the Crown Prosecutor in her address. In opening the case, the Crown Prosecutor stated that the jury would hear evidence from a witness who would describe the type of game being played, namely that it is violent and that is an action role-playing "hack and slasher type game". No objection was taken by Mr Young SC at the time of the opening. He conceded during argument that, in light of his failure to do so, it was not open to him to make an application to discharge the jury at this point. In any event, when considered in context, I see no potential prejudice to the accused from this reference during the Crown opening. It occurred as part of a generally neutral narrative that was being given by the Crown as to the accused's and the deceased's actions on the night in question. No part of the Crown's opening involved any attempt to link his participation in the game with the resolution of any of the issues for the jury's determination such as whether he deliberately stabbed the deceased, or whether he did so with a particular intent. Even if there had been an application to discharge the jury I would have refused it. No basis for the discharge of the jury by reason of these comments is apparent.