Supreme Court New South Wales Medium Neutral Citation: R v Martin (No 4) [2017] NSWSC 1291 Hearing dates: 19-20 September 2017 Date of orders: 20 September 2017 Decision date: 20 September 2017 Jurisdiction: Common Law Before: Hamill J Decision: Photographs 29 and 65 are not admissible. The remaining post mortem photographs are admissible. Catchwords: CRIMINAL LAW – evidence – post mortem photographs – photograph of deceased in situ at murder scene – assessment of probative value – assessment of prejudicial effect Legislation Cited: Evidence Act 1995 (NSW), s 137 Cases Cited: R v Meyn (No 3) [2012] NSWSC 1467 R v Phanekham (No 1) [2013] NSWSC 1695 R v Zammit [1999] NSWCCA 65 Category: Procedural and other rulings Parties: Regina (Crown) Micheal Phillip Martin Representation: Counsel: Mr B Campbell (Crown) Mr G D Wendler (M P Martin) Solicitors: Director of Public Prosecutions (Crown) Stuart Percy & Associates (M P Martin) File Number(s): 2015/00078236; 2015/00120687 Publication restriction: No publication until the conclusion of trial EX TEMPORE Judgment (REVISED) 1. Objection was taken to a number of photographs that the prosecution seeks to tender in the course of adducing the evidence of the pathologist who conducted the autopsy of the deceased. The accused is charged with murder, as well as two other offences directed towards the same victim (who was his father) and his father's flatmate a couple of months earlier. The central issue in the trial is whether the accused was responsible for the crimes. 2. The Crown case is that the accused attempted to secure the proceeds of two insurance policies taken out on his father's life and that he attempted to kill his father on 6 or 7 April 2014 and then successfully did kill him on 12 or 13 June the same year. The Crown will invite the jury to infer that the murder weapon was a samurai sword owned by the accused. The accused raises an alibi in respect of the April incident. He says that he was at home in Esk in Queensland. He relies on a credit card payment at a service station in a town around 30 kilometres from Esk. In respect of the murder, the accused says that he was a victim, along with his father, of a home invasion perpetrated by unknown criminals. There is some evidence capable of supporting this including the evidence of a Mr Collingwood who found the accused at the foot of the stairs outside of the deceased's flat bound with tape. The accused made a statement shortly after the killing in which he described the circumstances in which he was assaulted and in which his father was killed. 3. I understand there will be further evidence of interviews in which the accused maintains this account. In addition to the accused's accounts to police and the evidence of Mr Collingwood, there will also be evidence of injuries suffered by the accused. There is also evidence that the deceased mixed with bikies and had some enemies who may have been motivated to harm him. 4. The objection was raised yesterday at the very end of the twelfth day of the trial in anticipation that the pathologist would give evidence at 10:00am today. The parties tendered the photographs on the voir dire, [1] and stated their positions with admirable economy. This morning the Crown revised its position in respect of one of the photographs. 5. Counsel for the accused objected to all of the photographs. There are 13 photographs in total. Each depicts the deceased, or parts of his body. One was taken at the scene of the crime and the other 12 were taken in the course of the post-mortem examination. As a fall back or alternative position, Mr Wendler took particular objection to two photographs. The first is the photograph that was taken of the deceased in situ (photograph number 65). The second is a particularly graphic photograph taken in the course of the post-mortem examination (photograph number 29). Photograph 29 is a close-up of a wound to the victim's throat. 6. In short, the parties agreed that the issue came down to an assessment of the probative value of the evidence and balancing that against the capacity of the evidence to cause prejudice to the accused. The prejudice arises from the graphic nature of the photographs, and the possibility or likelihood that they will evoke an emotional response from the jury or from individual members of the jury. Neither counsel troubled me with any authorities of which there are many. This is perhaps understandable. The legal issue is clear and the decision must in each case turn on its own facts. In particular, consideration must be given to the nature of the photographs and the issues in the trial. However, in the limited time available, I have considered the decisions of Beech-Jones J in R v Phanekham (No 1) [2013] NSWSC 1695 and R v Meyn (No 3) [2012] NSWSC 1467, as well as the Court of Criminal Appeal's decision in R v Zammit [1999] NSWCCA 65. In the latter case, Wood CJ at CL referred to the type of graphic post-mortem photographs: "…in respect of which a discretion commonly needs to be exercised to ensure that they do have a probative value which exceeds the prejudicial effect of any emotional reaction they might engender." 1. However, his Honour went on to say at 156: "The sensitivity of jurors to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value, should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all." 1. In the case of each photograph sought to be tendered in the present trial, the question turns on the probative value of the evidence. That question must be addressed by reference both to the cumulative impact of the photographs, and also the individual photographs. Different considerations arise in respect of the post-mortem photograph as distinct from the photograph of the deceased in situ. I will deal with that first, .although I note that when I came on to the bench about to deliver this judgment, the learned Crown Prosecutor indicated that he no longer pressed the admission of photograph 65. That concession or position is well justified in the following circumstances and, as I indicated when the Crown Prosecutor announced his change of position, I had intended to exclude that photograph in any event. 2. The photograph is an image of the deceased in the position that he was found when emergency officers, paramedics and police, attended the scene. The Crown originally submitted that the relevance and probative value of the photograph lay in the fact that the accused claimed to have seen various injuries, whereas photograph 65 may tend to establish that he could not have made the observations he claims to have made. The Crown referred to the fact that an earlier witness (Mr Collingwood) said that he could not see any injuries. However, photograph 65 does not add much, if anything, to the evidence of Mr Collingwood on that issue. 3. Further, Mr Collingwood gave evidence that the accused was moving about the room, and, at least by inference, removed a cushion or pillow that was laying over his deceased father. There is no evidence that could give rise to the inference that the accused was standing stationary, let alone standing and looking at the deceased from the point of view of the photographer of photograph 65. Even allowing that the evidence may have some probative value, I was satisfied that the danger of unfair prejudice outweighed that probative value and would have excluded the evidence under s 137, although that decision now becomes otiose because the Crown has properly decided not to adduce the evidence. 4. There are then the 12 photographs taken during the post-mortem. Looked at globally, they have relevance. The Crown will ask the jury to infer that the accused used a samurai sword to inflict the injuries inflicted on the deceased. The injuries depicted in the photographs are of two kinds. First, there are injuries suggesting a slashing use of a bladed weapon, second, there are injuries consistent with a stabbing motion. The Crown tells me that he is in a position to call evidence that a samurai sword is capable of inflicting both types of injury, although as I understand it there will be an objection to some parts of the pathologist's evidence in this regard. 5. The Crown will also call a witness who trained the accused in the use of such a sword. There is already evidence that the accused owned a samurai sword albeit that this was some time ago, and the suggestion is that it was a ceremonial sword. 6. There will also be evidence in the form of a letter written by the accused to his then wife that may suggest the accused lost control in the course of the attack on his father. The number and nature of wounds depicted in the photographs may also be relevant to that issue, or that alleged admission. 7. I am satisfied that the evidence of the post-mortem photographs is relevant, and looked at globally, has a reasonably high degree of probative value as that expression is defined in the Evidence Act 1995 (NSW). I am satisfied that any potential for prejudice can be overcome by direction. 8. However photograph 29, to which a specific objection was taken, is a particularly graphic one. It depicts a wound to the victim's throat, the photograph being taken at extremely close range. The same injury is depicted in photograph number 35, although it is not as clear a photograph of the specific injury. In any event, the learned Crown Prosecutor conceded in argument that he could use photograph 35 for much the same purpose as he would use photograph 29. I accept Mr Wendler's submission that photograph 29 may arouse unnecessary emotion. It adds very little to the array of photographs. While it has some distinct and individual probative value, that value is outweighed by the prejudicial effect that may arise from the emotional response it is likely to elicit. 9. However, the remaining photographs taken at post-mortem examination are admissible. While the photographs are likely to arouse some emotion, the jury will be directed as to the proper use that can be made of the photographs and reminded that the real issue in the case is whether it was the accused who inflicted these injuries. 10. Accordingly, photograph 65 and 29 are excluded, and the remaining 11 photographs (although it may be ten given the duplication raised by the Crown this morning) may be admitted. ********** Endnote 1. Ex VD-E. 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: 27 October 2017