R v Cliff - [2018] NSWSC 78

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)

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.
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.
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.
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.
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

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…

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 Cliff

Details

AGLC: R v Cliff [2018] NSWSC 78
Case: [2018] NSWSC 78
Decision Date: 05 February 2018

CaseChat Overview and Summary

The case of R v Cliff came before the court where the prosecution was contesting the admissibility of crime scene photographs that depicted the deceased. The issue arose as to whether the probative value of these photographs was outweighed by the potential for unfair prejudice to the defendant. The trial judge had to determine the admissibility of this evidence in the context of the criminal trial against Cliff. The court's task was to balance the need for the jury to have all relevant evidence against the risk that the jury might be unduly influenced by the emotional impact of the photographs.

The court considered the criteria established in previous cases for assessing the admissibility of potentially prejudicial evidence. It was necessary to examine whether the photographs held significant probative value in relation to the facts in issue, and whether this value was substantially outweighed by the danger of unfair prejudice. The court noted that the probative value of crime scene photographs can be substantial, especially when they are relevant to the cause of death or the circumstances surrounding the crime. However, the court also acknowledged the potential for such photographs to evoke strong emotional responses that could unfairly prejudice the jury against the defendant. After careful consideration of these factors, the court ruled that the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice.

Consequently, the court determined that the photographs were admissible in evidence. The decision was based on the finding that the photographs provided important insights into the circumstances of the crime and the condition of the deceased, which were critical to the jury's understanding of the case. The court emphasised that the probative value of the evidence outweighed the potential for unfair prejudice. The photographs were thus allowed to be presented to the jury as part of the prosecution's case. This ruling ensured that the jury had access to all relevant evidence to make an informed decision in the trial against Cliff.

Orders