R v Cliff [2018] NSWSC 78

Supreme Court New South Wales

Medium Neutral Citation: R v Cliff [2018] NSWSC 78 Hearing dates: 5 February 2018 Date of orders: 05 February 2018 Decision date: 05 February 2018 Jurisdiction: Common Law Before: Campbell J Decision: The contents of MFI 1 are admissible in their entirety. Catchwords: CRIMINAL LAW – admissibility of evidence – crime scene photographs depicting deceased – whether the probative value is outweighed by the danger of unfair prejudice – photographs ruled admissible Legislation Cited: Evidence Act 1995 (Cth), ss 137, 192A Cases Cited: C Van Der Lely NV v Bamfords Ltd (1963) RPC 61 R v Hunter (No 9) [2014] NSWSC 1152; R v LN; R v AW (No 4) [2017] NSWSC 221 R v Zammit [1999] NSWCCA 65 Texts Cited: Nil Category: Procedural and other rulings Parties: Regina (Crown) Bryce Cliff (Accused) Representation: Counsel: M Pincott (Crown Prosecutor) E Wilson SC (Accused)

Solicitor: M McFarlane (Office Director of Public Prosecutions) (Crown) A Van der Velde (Matouk Joyner Lawyers) (Accused File Number(s): 2016/175505

EX TEMPORE JUDGMENT (REVISED) 1. The accused Bryce Cliff has been arraigned on an indictment charging him with murdering James Cleghorn on 7 June 2016. He has entered a plea of not guilty of murder, but guilty of manslaughter. 2. The Crown case in short is that the accused attended the home of the deceased and stabbed him 30 times with a knife. Surprisingly perhaps only one of those stab wounds proved fatal or so I am informed by Counsel. That was a stab wound to the left aspect of Mr Cleghorn's chest. 3. Given the plea that has been entered, which has not been accepted by the Crown as discharging the indictment, I have been informed by Mr Wilson of learned Senior Counsel for the accused, that there is no issue that a voluntary act of the accused caused the death. There is no issue about the nature of that act. 4. A jury is yet to be empanelled. Under the provisions of s 192A of the Evidence Act 1995 (Cth) ("Evidence Act"), I am required to rule in advance of the commencement of the proceedings before the jury upon the admissibility of a series of photographs taken at the crime scene which I have marked MFI 1. The photographs are the crime scene photographs numbered between 90 and 99. 5. Of those photographs Mr Wilson does not object to photographs 90, 92 and 93 but objects to the balance. It should be said that at least tacitly Mr Wilson does not dispute the relevance of the photographs, notwithstanding what I have said about the issues. Rather the real question for my determination is whether I am required to refuse to admit the photographs because their probative value is outweighed by the danger of unfair prejudice to the defendant under s 137 of the Evidence Act.