Ash Building Products Pty Ltd v Clama Industries Pty Ltd

[2007] VSC 575

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1480 of 2007

THE QUEEN

v

SHAUN PETER MAXWELL CASTLES

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2007
DATE OF RULING:	27 November 2007
CASE MAY BE CITED AS:	R v Castles (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2007] VSC 575

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CRIMINAL LAW – Evidence – Application to exclude photographs from evidence – Repetition.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Jones	OPP
For the Accused	Mr T. Danos	Mike Wardell

HIS HONOUR:

1. In this case the Crown seeks to tender 16 photographs of the alleged victim of an assault which it alleges amounted to attempted murder. The photographs were  taken in hospital after the event.

1. The first eight of the photographs are almost solely of the victim's head.  No. 9 shows the head and upper part of the chest, No. 10 shows the head again and No. 11 is a further distance shot showing more of the victim's body.

1. Defence counsel seeks exclusion of some of these photographs on the ground that they are repetitious, and in particular that the early photographs (one, two, three, four, five, six and possibly seven) are of the same or similar parts of the victim. There is very little difference between them. Photographs 9 and 11 show more of the victim's body than the head, where most of the injuries occurred.  Mr Danos for the accused says that some of them should be excluded simply on the ground that they are repetitive, and in particular he points to Photographs 9 and 11.

1. The Crown case is that the intent necessary to prove the offence of attempted murder is to be inferred from the degree of violence exhibited during the course of the assault, which degree of violence is graphically illustrated by these photographs. Mr Danos argued, however, that the presence of a lot of blood itself may or may not be significant. But the question of its significance is, of course, to be decided by the jury, all of whom, no doubt, are all familiar with what happens when somebody has a cut and blood flows.

1. In the circumstances the prejudicial effect of these photographs is probably great but the exclusion of a small number of them is not going to lessen that and their relevance is enormous.  There is no basis, in my opinion, for excluding any of the photographs, although the Crown conceded that Photographs 9 and 11 do not add very much to the case against the accused and it is prepared to concede that they should be removed.  However, I am not prepared to order that the earlier photographs be culled in any way; each of them shows a particular aspect of the victim's injuries and ought to go before the jury.

1. The Court orders that all of the photographs may be tendered with the exception of Photographs 9 and 11.