R v Barton - [2006] NSWSC 1494

CITATION: R v Barton [2006] NSWSC 1494

HEARING DATE(S): 05/06/2006

JUDGMENT DATE :
5 June 2006

JUDGMENT OF: Buddin J

DECISION: Objection upheld.

CATCHWORDS: Photograph of young victim - objection to tender

CASES CITED: R v Green (1939) 61 CLR 167
R v Murdoch & Ors (1987) 37 A Crim R 118
R v Zammit (1999) 107 A Crim R 489

PARTIES: Regina
James Harry Barton

FILE NUMBER(S): SC 2005/1623

COUNSEL: D Howard SC (Crown)
Ms D Yehia (Accused)

SOLICITORS: S Kavanagh (Solicitor for Director of Public Prosecutions)
Legal Aid Commission (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 5 JUNE 2006

2005/1623 – REGINA v JAMES BARTON
JUDGMENT – Objection to tender of photograph of young victim

1 HIS HONOUR: Objection is taken on behalf of the accused to the tender of a photograph of a five year old child named J. The accused is charged with the murder of J’s father, M. and his three year old sister, N. He is also charged with the attempted murder of J. In the alternative to that charge, he is charged with having maliciously destroyed a house intending thereby to endanger the life of J. (Because N. and J. were children it is necessary to protect their identity and that of other family members).

2 In a nutshell, the Crown case is that the accused murdered M. by shooting him with a rifle. The accused, I am informed, admits shooting and killing M. on Friday 3 September 2004 but claims that he did so in self-defence, following an argument. The shooting occurred in the deceased’s house where he lived with J. and N. for whom he was the sole carer.

3 The deceased’s body remained in the house for the next 24 hours or so. The accused looked after the children during some, if not, most of that period of time. He fed the children and put them to bed on the evening of Saturday 4 September. At about 11.30 that evening a fire started in the house. M’s body was still in the house. Unfortunately N. died in the fire. J. was rescued from the fire by the accused but only, on the Crown case, after neighbours arrived and demanded that he go into the house and retrieve the children. The Crown case is that the fire was deliberately lit by the accused in order to cover up the fact that he had killed M. and in order to prevent the children from implicating him in their father’s death.

4 The Crown case, as I have said, is that the accused attempted to murder J. It contends that he did so by setting fire to the premises well knowing that he and N. were asleep inside the premises at the time. Furthermore, the Crown will invite the jury to conclude that the accused provided J. and N. with methadone to ensure that they would remain asleep even after the fire broke out.

5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barton

Details

AGLC: R v Barton [2006] NSWSC 1494
Case: [2006] NSWSC 1494
Decision Date: 5 June 2006

CaseChat Overview and Summary

The case of R v Barton involved a criminal prosecution where the defendant was charged with various offences, including indecent assault. The prosecution sought to tender a photograph of the young victim into evidence. The defendant objected to the admissibility of the photograph, arguing that it was not relevant to the case and would prejudice the jury against him. The court had to determine whether the photograph was admissible under the rules of evidence and whether its probative value outweighed any prejudicial effect it might have.

The court considered the relevance of the photograph to the case, examining whether it could assist in establishing a fact in issue or in proving the defendant's guilt. It also weighed the potential prejudicial effect the photograph might have on the jury, considering whether it could lead to an unfair bias against the defendant. The court was required to balance the need for the photograph as evidence against the risk of prejudice to the defendant's right to a fair trial.

The court found that the photograph was relevant to the case as it could assist in establishing the identity of the victim and the nature of the injuries she sustained. The court determined that the probative value of the photograph outweighed any prejudicial effect it might have, as it was necessary for the jury to understand the context and circumstances of the alleged offences. Consequently, the court ruled that the photograph was admissible in evidence.

The court ordered that the photograph be admitted as evidence in the trial, subject to any appropriate directions to the jury regarding its use. The trial proceeded with the photograph being presented to the jury as part of the evidence.

Orders