R v Biljuh (No 3) [2015] NSWSC 710

Supreme Court New South Wales

Medium Neutral Citation: R v Biljuh (No 3) [2015] NSWSC 710 Hearing dates: 4 June 2015 Decision date: 04 June 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: Photograph 45 of voir dire exhibit J will be admitted into evidence. Catchwords: CRIMINAL LAW – EVIDENCE – admissibility – crime scene photograph – 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: Procedural and other rulings Parties: Regina Dario Biljuh Representation: Counsel: P Hogan (Crown) M Dennis (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Toomey Lawyers (Accused) File Number(s): 2014/70168

EX TEMPORE Judgment 1. Objection has been taken by defence counsel to photograph 45 of Crown voir dire exhibit J. That photograph is of the deceased's body lying on some kitchen tiles or linoleum. It shows the deceased's face covered by duct tape in a way that was described in the Crown Prosecutor's opening, and in a way that undoubtedly would have led to the suffocation of that elderly lady. 2. Mr Dennis, who appears for the accused, has not objected to photograph 48, which shows a close-up of the deceased's face wrapped in duct tape. Nor has he objected to photograph 61 of voir dire exhibit J, which shows the rear of the deceased's head. 3. Mr Dennis has submitted that photograph 45 is a distressing one, a submission that I accept. 4. There is no dispute between the parties about the nature of the test in s 137 of the Evidence Act 1995 (NSW). Suffice to say, it is not a question of discretion; rather, I must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. 5. I think that it is possible that photograph 45 could upset the jury. But I think that it is unlikely that it would do so above and beyond the contents of photograph 48 and photograph 61. In short, focusing on the danger of unfair prejudice arising from photograph 45 itself, I think that that is reasonably low. 6. As for the probative value of the evidence, I assess that generally as being quite high. Unless I am mistaken, that is the only photograph that will show the precise location and arrangement of the deceased's body in situ. 7. As well as that, Mr Crown, in support of the application, has explained that the Crown case is that the deceased's body may well have been dragged by the perpetrator. Mr Crown has reminded me that the Crown case is that a DNA profile consistent with that of the accused was found on the collar of the dress worn by the deceased. In short, Mr Crown's submission is that the evidence is not only relevant in a general sense with regard to the location and position of the body, but indeed it is relevant and probative in quite a specific way; namely, with regard to the thesis of dragging, and also the jury's understanding of the location of the DNA profile and its significance. 8. In all of the circumstances, I assess the probative value of the evidence as quite high. 9. To my mind, making the evaluative judgment required by s 137 of the Evidence Act, I do not consider that the probative value of photograph 45 is outweighed by the danger of unfair prejudice to the accused that may arise from its admission. 10. Accordingly, photograph 45 of voir dire exhibit J will be admitted into evidence.