R v Mackie (No 4) [2019] NSWSC 457

Supreme Court New South Wales

Medium Neutral Citation: R v Mackie (No 4) [2019] NSWSC 457 Hearing dates: 22 March 2019 Date of orders: 25 March 2019 Decision date: 24 April 2019 Jurisdiction: Common Law Before: Lonergan J Decision: The DVD demonstration is rejected on the basis of relevance Catchwords: EVIDENCE – demonstration – relevance Legislation Cited: Evidence Act 1995 (NSW) ss 55, 135, 137 Category: Procedural and other rulings Parties: Regina (Crown) Rosemary Priscilla Mackie (Accused) Representation: Counsel: Mr C Leggat SC (Crown) Ms M Avenell (Accused)

Solicitors: Director of Public Prosecutions (Crown) Aboriginal Legal Services – Moruya (Accused) File Number(s): 2015/353540 Publication restriction: Nil

Judgment 1. An issue has arisen and argued on day ten of the trial as to whether a DVD prepared in 2018 in which the officer in charge of the investigation DSC Lugsdin ("the OIC") demonstrates the wielding of a block splitter in the bathroom at premises occupied by Bernhard Webber, is admissible. 2. The DVD, a few minutes long, also has a running commentary by DSC Lugsdin commenting on what she says her actions on the DVD demonstrate. 3. The Crown argued that the relevance of this demonstration was that the accused had made some admissions to undercover operative Mr O'Brien that she had hit the deceased with a block splitter in the bathroom at Mr Webber's house. I interpolate that the uncontested forensic evidence was that the deceased died of ligature strangulation, not of a head injury. 4. The Crown argued that the jury may be concerned, because of the relatively small size of the bathroom from the architect's drawing and photographs tendered, that it was "impractical" for a blockbuster to be used in such confined space. 5. The Crown argued that the likelihood that the jury would hold that concern was supported by the submission made by senior counsel for the accused in the previous trial, because he invited the jury to draw an inference along those lines saying that "there was not enough room to swing a cat" or words to that effect, and that therefore they should doubt the event described occurred. 6. The Crown argued that it was seeking to address a reasonable apprehension that the jury may have, and that the demonstration provides some evidence for the jury to consider to help them address any concern they have about the dimensions of the bathroom. 7. Ms Avenell for the accused submitted that the demonstration was irrelevant. The block splitter used in the demonstration, as a matter of common ground and a matter of fact, cannot have been the weapon used to cause injury to the deceased's head. The fact that the OIC, a person of very different personal dimensions to the accused, could go into the bathroom three years later and swing a block splitter around is and remains entirely irrelevant. 8. Ms Avenell indicated to the Crown, and I accept, that she would not be making any submissions similar to the one made by senior counsel for the accused at the last trial. 9. The Crown nevertheless pressed the tender, because, he argued, the concern may remain. 10. In addition to the demonstration not meeting the test of relevance, Ms Avenell argued that it should be excluded under s 135 or s 137 of the Evidence Act 1995 (NSW) ("the Act") because of the danger of misuse of the visual physical presentation by a person not involved in the event and that there is a risk that there will be transposition of the demonstration and the weapon to the accused. 11. Ms Avenell described the DVD as a gratuitous piece of evidence that gives a physical sense and a physical presentation that just cannot be accurate and is not accurate.