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 It is common ground that the accused was out of the premises at the time when the fire was started. The Crown’s case is that the accused took steps to ensure that he was out of the premises at the time of the fire. The accused’s case is that the fire occurred at a time when he was, albeit briefly, out of the house and that it must have happened by accident.

6 The critical matters which the Crown must establish in order to establish the principal charge involving J. are that the accused’s actions constituted an attempt (which requires it to demonstrate that the conduct went beyond mere acts of preparation) and that at the time the accused had the relevant intention to commit the offence. The essence of the offence (and indeed the alternative charge) is that the accused deliberately lit the fire in the circumstances which I have just described.

7 So far as the completed offences of murder in counts 1 and 2 are concerned, the consequences of the accused’s actions (namely, the deaths of M. and N., respectively) are essential elements of the offences in question. That may be contrasted with the offence alleged in count 3, which is capable of being established without reference to the consequence of the accused’s actions. In that sense, the injuries sustained by J. are not strictly relevant to a fact in issue and accordingly have no, or at least very little, probative value.

8 Even if the question of J’s injuries does have probative value and thus is a relevant matter to be considered by the jury, then it is pertinent to observe that two doctors have already given evidence in which they have each described the nature and extent of those injuries. As is apparent in the photograph, they consist in large measure of burns to J’s face. It is difficult in those circumstances to see what additional probative value the photograph has, bearing in mind the oral evidence which has been given.

9 On the other hand there is, in my view, a real risk of unfair prejudice to the accused were the photograph to be admitted. The Crown submits that the injuries are not, in the scheme of things, all that horrific. It is not easy to reconcile that submission with the contention that the photograph demonstrates, in a way no description of the injuries could, the fact that the child was very close to perishing in the fire. Be that as it may, the photograph nonetheless displays the stark reality that an innocent child of tender years has suffered significant burns to his face. That state of affairs alone will almost certainly inflame the jury and cloud its understanding of the matter. The further fact that J’s younger sister perished in the same fire which, upon the Crown case, was also intended to claim his life adds a further significant risk of unfair prejudice in a manner that directions to them are quite unlikely to overcome. That being so, the evidence must be excluded.

10 For completeness I note that I was referred by the Crown to the following decisions: R v Zammit (1999) 107 A Crim R 489; R v Murdoch & Ors (1987) 37 A Crim R 118 and R v Green (1939) 61 CLR 167. Clearly enough photographic evidence of injuries sustained by a person, even of a most graphic kind, may be admitted if it has probative value. Indeed, in the present case there are photographs of the head of the deceased M. which show the position of the gunshot wound in his skull as well as lacerations to that area. That evidence, to which no objection was taken, clearly has probative value.

11 Similarly in each of the cases to which I was referred the evidence to which objection had been taken had clear probative value. Given what I have said about the lack of probative value of the evidence in this case, none of those cases, in my view, provides any assistance in resolving the issue which presently arises.

Order

12 Accordingly, the objection is upheld and the evidence is excluded.

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Amendment to judgment
Originally there was a non-publication order in place in relation to these reasons but that order has now been vacated.