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. Facts 1. I think it necessary to say a little more about the facts. It is the Crown case after the infliction of the stab wounds in his home, Mr Cleghorn ran from his residence downstairs to the residence of a neighbour. Hearing a commotion Mr Garland opened his front door and the deceased ran past him apparently into his home unit yelling "Help, he's trying to kill me". 2. The photographs which the Crown proposes to tender as I have described them are of the body of Mr Cleghorn in situ in Mr Garland's home and general photographs of the home which show deposits of what I understand will be proved to be Mr Cleghorn's blood at various places around the home. From this the jury may be asked to infer that Mr Cleghorn was obviously moving around (to put it in entirely neutral terms) before ending up in the position where he is shown in the photographs on the floor of the home unit. 3. It is also accepted that the blue towel shown draped across the upper part of Mr Cleghorn's chest and neck was put there by Mr Garland. Although there is no real issue that these photographs may be relevant, I think it worthwhile recording that the Crown has described their relevance as being to assist the jury to follow Mr Garland's narrative of what he saw and heard on that fatal night. 4. The tender is also put on a secondary basis. There is the particular rule which applies in murder cases in relation to the obligation of the judge to leave any question of self-defence or extreme provocation that may arise fairly on the evidence for the jury's consideration, whether or not counsel rely upon it. This evidence showing, as it does, the extensive blood stained injuries on Mr Cleghorn's torso is relevant to any question of self-defence. Principles 1. Counsel helpfully have taken me to a number of decisions of the Court of Criminal Appeal and of judges of the Supreme Court in relation to the application of s 137 in the context of the tender of photographs of the deceased person in trials for murder. 2. The section and its operation have been described in his Honour's customary pithy way by Johnson J in R v LN; R v AW (No 4) [2017] NSWSC 221 at [30] in the following terms (I have omitted his Honour's references to authority): "The Court must refuse to admit evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the Accused: s. 137. The danger of unfair prejudice in s. 137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (the jury) so that the jury may not comply with judicial directions as to its use...There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves..." 1. I think it also relevant in this context to refer to the judgment in the Court of Criminal Appeal given by Wood CJ CL in R v Zammit [1999] NSWCCA 65 at [153]-[158]. Without setting that out in full, it is important when considering this question to bear in mind that once it is established to the judge's satisfaction that the photographs sought to be tendered have real probative value, the question of prejudice should be weighed and assessed by reference to the following statement. Again, I omit citations. 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 to see..." 1. It should also be said that a number of the cases which I will not refer to in any further detail have pointed out, I will express it in my own way, that the real danger of jury misusing photographs of a deceased person arises from what might be regarded as their not infrequent gruesome or graphic content, which may evoke in the mind of a person inexperienced in the ways of criminal law an emotional response to the photographs which may operate on the minds of the jury in a way which is unfair to the position of the accused as a person who is presumed to be innocent unless and until the Crown persuade the jury of his guilt beyond reasonable doubt. And it is in that regard that, as I have said, one ought to bear in mind what Wood J has said about the robustness of ordinary members of the community called upon at random to serve as jurors and their ability to dispassionately discharge the heavy obligation which the law and the community casts upon them in serious criminal trials. 2. Frequently, as Button J pointed out in R v Hunter (No 9) [2014] NSWSC 1152 at [9], the nature of the injuries inflicted will be the most telling evidence about the intent with which those injuries were inflicted. I bear in mind in this regard it was explained to me that an issue for the determination of the jury in this case, given what I have said about the plea entered, is whether the Crown can prove beyond reasonable doubt that when the accused inflicted the injury by his deliberate act which caused the death of Mr Cleghorn, he intended to inflict at least really serious physical injury. As I have said evidence about the nature of the injuries and their extent is often the most telling evidence of a circumstantial nature, no doubt upon, which the jury may act when deciding that question in accordance with the evidence. 3. I should say that the cases to which I have referred express concern in general terms for photographs taken during the post mortem examination. Those photographs are often particularly grizzly or gruesome because of the nature of the forensic pathologist's work in carrying out an autopsy. The MFI 1 photographs do not fall into that category, and indeed I am informed by Mr Wilson that he has reached agreement with Mr Pincott of learned Counsel for the Crown about the admission of some of those photographs. Directions 1. When the jury receive photographs it will of course be explained to them by way of a direction in accordance with the decision of Lord Reid in C Van Der Lely NV v Bamfords Ltd (1963) RPC 61 at [71] that the jury ought not to attempt to read or construe the photographs themselves. The photographs are not real evidence, when the jury look at the photographs their purpose will be to determine whether the evidence which Mr Garland gives is acceptable to them. They will also assist the jury to understand his narrative about what happened in the immediate aftermath of the infliction of the injuries on Mr Cleghorn. Moreover juries are always directed that they must go about their task dispassionately without sympathy or prejudice either for the deceased or his family or the predicament of the accused. The criminal justice system operates on the firm assumption that juries are able to discharge this obligation. Decision 1. I have viewed the photographs for myself in the course of considering what decision I should make. To my mind, although people may find any picture of a recently deceased person, especially one who has suffered obvious physical injury, to be confronting, they are not of such a nature as to excite in the mind of a reasonable juror an unreasonable or irrational passion against the accused. I accept there must always be some risk or degree of prejudice in a murder case when one sees the crime scene photographs. That being said I am not of the view in this case that the obvious probative value of these photographs is outweighed by any risk of unfair prejudice of the type I have described. 2. I should also say that the statutory test as I have expressed, is whether the probative value is outweighed by the danger of unfair prejudice. It is not a test of necessity. With respect, it is no answer to the tender of the photographs simply to say that their probative value can be satisfied by some other evidence. The criminal trial is an adversarial process and the parties, subject to the rules of evidence as established by the Evidence Act, have the right to lead and prove their case by such evidence as counsel judges to be appropriate. As I have said, this is subject to sections like s 137 of the Evidence Act. 3. My ruling is that the contents of MFI 1 are admissible in their entirety. I return MFI 1 to the learned Crown Prosecutor. ********** 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: 28 February 2018