Supreme Court New South Wales Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 33 Hearing dates: 3-5 February 2014 Decision date: 05 February 2014 Before: Harrison J Decision: Tender rejected Catchwords: EVIDENCE - photograph - depiction of the body of the deceased in situ following death caused by fire - Crown application to tender photograph - evidentiary value - whether inflammatory or prejudicial - whether fact in issue capable of proof by other means - tender rejected Category: Procedural and other rulings Parties: Regina (Crown) Bradley Max Rawlinson (Accused) Michelle Sharon Proud (Accused) Bernard Justin Spicer (Accused) Representation: Counsel: C Maxwell QC (Crown) W Terracini SC (Rawlinson) D Pullinger (Proud) N Steel (Spicer) Solicitors: Director of Public Prosecutions (Crown) Archbold Legal Solutions (Rawlinson) Medcalf Grant Lawyers (Proud) George Smirilios (Spicer) File Number(s): 2011/410710 (Rawlinson) 2011/410458 (Proud) 2011/410452 (Spicer) Publication restriction: Nil EX TEMPORE Judgment 1HIS HONOUR: At this early stage of the proceedings, no evidence having yet been called, the Crown has quite properly drawn to my attention its proposal to tender a photograph of a portion of the interior of the deceased's house. For reasons that will shortly emerge, the tender of the photograph is attended by some controversy. The photograph bears the number 5 and for identification I will mark it as MFI 1. 2Without descending into a detailed description of what the photograph reveals, it is sufficient to observe that it depicts the upstairs passageway of the deceased's home, taken looking in the direction of the bathroom with what I understand to be the door to the deceased's bedroom on the right. Located in that area lying adjacent to this doorway is the partly visible body of the deceased. The Crown contends that the deceased was killed by a fire started in her bedroom and that in fleeing the inferno she managed only to reach the location where her body is shown in the photograph in question. The Crown's contention is that this photograph is a necessary part of its case against all accused and should be admitted into evidence despite its arguably controversial characteristics. 3There can be no doubt, even notwithstanding the form and quality of the photograph, that it contains material that is potentially controversial and likely to produce a strong emotional response from members of the jury. In opposition to the tender, the accused all contend that the generation of any such emotional response can only be unfairly prejudicial to them. 4Despite the limited amount of evidence called so far, it is now and has always been my understanding that there is no dispute about the fact that the deceased was found in the location depicted in the photograph. So much emerges from the Crown case statement at least. Although one could anticipate the possibility that this photograph might in due course achieve some other particular significance arguably supporting its tender as an exhibit in these proceedings, I am not presently satisfied, having regard to the highly prejudicial nature of what it depicts, that its contribution to the factual material in this case could not adequately be replicated or otherwise achieved either by the simple tender of a plan or diagram, or even by an edited version of the photograph with the body of the deceased removed. 5In my opinion, as presently advised, the graphic and correspondingly prejudicial nature of the photograph is such that some alternative evidentiary method of establishing what the Crown proposes to prove by its tender should if necessary be found and adopted. ********** 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: 09 December 2014