Supreme Court New South Wales Medium Neutral Citation: R v Hunter (No 9) [2014] NSWSC 1152 Hearing dates: 10 July 2014 Decision date: 11 July 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The two photographs will be admitted into evidence. Catchwords: CRIMINAL LAW - EVIDENCE - admissibility - post mortem photographs - whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant Legislation Cited: Evidence Act 1995 (NSW), s 137 Category: Interlocutory applications Parties: Regina Paul Andrew Hunter Representation: Counsel: M Cinque (Crown) D Carroll (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused) File Number(s): 2011/397367 Judgment 1Objection has been taken by defence counsel to the receipt into evidence of two photographs. They are photographs 46 and 78 of the series of photographs that became voir dire exhibit S. All of the photographs were taken of the body of the deceased at post-mortem. Defence counsel relies upon the well-known "discretion" in s 137 of the Evidence Act 1995 (NSW). 2To state the background with succinctness, the Crown alleges that the accused and either his brother, his first cousin, or both, fatally assaulted the deceased on the evening of 20 June 2011 in retaliation for an assault that the deceased had inflicted upon the accused earlier that day. The Crown case is that the accused was either the principal in the first degree who assaulted the deceased with intent to inflict, at least, really serious physical injury and thereby caused his death, or was present at the scene and part of a joint criminal enterprise to inflict, at least, really serious physical injury upon the deceased. 3In his opening, defence counsel informed the jury that the question of causation is not in dispute, although he did refer to a medical condition from which the deceased suffered that caused his blood not to coagulate normally. Defence counsel did not state that there was no dispute that any principal in the first degree possessed an intention to inflict really serious physical injury, and in discussion in support of this application he made it clear that that matter is not conceded. 4Defence counsel drew attention to the second report of Professor Duflou, which became voir dire exhibit Z. In the second paragraph on page 2 of that report, the Professor said "The bruising around the eyes is very likely secondary to the other injuries sustained, and does not indicate blows to the eyes (so-called black eyes)." In other words, defence counsel submitted, the state of the area around the eyes of the deceased shown in voir dire exhibit S 46 does not inform the tribunal of fact about the number and force of blows inflicted upon the deceased. He submitted that the photograph could be cropped so as to show nothing more than the semi-circular wound to the forehead of the deceased, and so that it would not show the bruising to the area of the eyes of the deceased and the blood seemingly emanating from one of his nostrils. 5As for voir dire exhibit S 78, he submitted that the large wound to the rear of the head of the deceased can just as easily be expressed in words with regard to its length, breadth, position, freshness and so forth, and that the photograph is unnecessarily distressing. 6The Crown Prosecutor submitted that the photos are, as post-mortem photographs always must be in a murder trial, not lacking in a degree of emotive force. But she submitted that, in light of the issues in the trial, the test in the section has not been made out on the application. 7A number of aspects of the trial lead me to accept the proposition of the Crown Prosecutor. 8First, at the start of the trial the Crown Prosecutor indicated to the jury panel that graphic photographs would be presented during the evidence. Thereafter, I invited members of the jury panel to reflect upon whether they were capable of sitting as an impartial judge of the facts. None of the serving jurors sought to be excused on that basis. 9Secondly, in light of the fact that it is not conceded that the principal or principals in the first degree assault the deceased with intent to inflict really serious physical injury, the details of the injuries actually inflicted to the person of the deceased are an important part of the Crown case with regard to an issue in dispute between the parties. 10Thirdly, although the photograph that constitutes voir dire exhibit S 78 shows a severe wound to the rear of the head of a fellow human being, the wound is sutured and not gaping. 11Fourthly, I accept that voir dire exhibit S 46 is distressing, in that it shows the face of the deceased, thereby personalising the image. But to my mind the most distressing aspect of it is the large sutured wound to the forehead of the deceased, and not the bruising to the area of his eyes and the small amount of blood that has seemingly emanated from his nostril. 12It would be difficult indeed to describe accurately in words the precise parameters, shape and other attributes of that bruising; and, in any event, to the extent that the Professor has spoken of that bruising as being "secondary", it is not completely clear that he meant by that that the injuries to the area of the eyes of the deceased are irrelevant to the task of determining the force of the blows inflicted upon this person. 13In short, I regard the probative value of both photographs as reasonably high. Although I consider that there is a danger of unfair prejudice arising from the admission of the two photographs, I am not satisfied that that danger outweighs the probative value of the two exhibits. 14Accordingly, the section is not engaged, and the two photographs will be admitted into evidence. ********** 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: 21 August 2014