R v Martin (No 9) - [2017] NSWSC 1377

Supreme Court

New South Wales

Medium Neutral Citation: R v Martin (No 9) [2017] NSWSC 1377
Hearing dates: 05 October 2017
Date of orders: 05 October 2017
Decision date: 10 October 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
The evidence of the width of the blade of the katana is admissible.

Catchwords: CRIMINAL LAW – evidence – evidence of width of samurai sword – where pathologist gave evidence that fatal wound could have been caused by sword – where pathologist asked to assume width of sword was 2.5 to 3.5 cm – where fatal wound 2.2 cm long on skin – sword subsequently measured –assumption put to pathologist incorrect – whether evidence relevant – whether evidence prejudicial – evidence admissible to correct erroneous assumption
Legislation Cited: Evidence Act 1995 (NSW), ss 135, 137
Category: Procedural and other rulings
Parties: Regina (Crown)
Micheal Phillip Martin
Representation:
Counsel:
Mr B Campbell (Crown)
Mr G D Wendler (M P Martin)
Solicitors:
Director of Public Prosecutions (Crown)
Stuart Percy & Associates (M P Martin)

File Number(s): 2015/78236; 2015/120687
Publication restriction: No publication until the conclusion of trial

Judgment

On 5 October 2017 (the twenty-second day of the trial) the Crown sought to ventilate the admissibility of certain evidence to which the accused took objection. The evidence comprised of a number of photographs depicting a samurai sword (correctly called a katana) and various rulers demonstrating the dimensions of the weapon. Originally, the accused complained that there was an excessive number of photographs (19). [1] The Crown then indicated that the exhibit had been culled down to 11 photographs. Having been shown the array of 11 photographs, the accused raised no objection to two photographs (numbered 1 and 2) depicting the length of the sword. The accused raised no objection to one of two photographs depicting the width of the blade at the hilt of the sword (photographs 3 and 4). The position seemed to be that one or other of the photographs was admissible but not both. It is clear that photograph 4 is merely designed to demonstrate where the measurement depicted in photograph 3 was taken. If one of the photographs is admitted, the other is clearly necessary for the jury to understand the location of the measurement. I indicated as much in argument and no further reasons are necessary.
1. Transcript (T) 1136.
The bulk of the argument concerned the photographs numbered 7, 8, 9, 13, 14, 16 and 17. These show the width of the blade at its tip and at various points along the blade. One complaint concerned the number of photographs – there were said to be too many. The Crown Prosecutor indicated that he could lead the evidence orally without tendering the photographs themselves. [2] However, the more fundamental submission seemed to be that the measurements of the width of the tip was not relevant and may invite the jury to draw a connection between the measurements and part of the evidence given by a forensic pathologist…

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 Martin (No 9)

Details

AGLC: R v Martin (No 9) [2017] NSWSC 1377
Case: [2017] NSWSC 1377
Decision Date: 10 October 2017

CaseChat Overview and Summary

In this case, the defendant, Martin, was charged with murder. The prosecution sought to introduce evidence that the width of the samurai sword used in the fatal attack was between 2.5 to 3.5 centimetres, despite the fact that the actual measurement of the sword was approximately 2.3 centimetres. The pathologist who gave evidence on behalf of the prosecution had assumed that the sword was 2.5 to 3.5 centimetres wide, but this assumption was later found to be incorrect. The issue before the court was whether the evidence of the sword’s width was relevant and admissible, despite the incorrect assumption made by the pathologist.

The court found that the evidence was relevant, as it was necessary to correct the erroneous assumption made by the pathologist. The court also found that the evidence was not prejudicial, as it was relevant to the case and did not have the potential to unfairly influence the jury against the defendant. The court held that the evidence was admissible to correct the erroneous assumption made by the pathologist. The court also held that the evidence was necessary to assist the jury in understanding the nature of the fatal wound and the weapon used in the attack.

In conclusion, the court found that the evidence of the sword’s width was admissible, as it was relevant and necessary to correct the erroneous assumption made by the pathologist. The court held that the evidence was not prejudicial and did not unfairly influence the jury against the defendant. The court found that the evidence was necessary to assist the jury in understanding the nature of the fatal wound and the weapon used in the attack. The final orders of the court were not provided in the text.

Orders