R v Phanekham (No 2) - [2013] NSWSC 1738

Supreme Court

New South Wales

Medium Neutral Citation: R v Phanekham (No 2) [2013] NSWSC 1738
Hearing dates: 20, 21, 22 November 2013
Decision date: 26 November 2013
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Evidence rejected.

Catchwords: EVIDENCE - accused was playing violent computer game before confrontation leading to death of deceased - whether evidence of nature of the computer game admissible - whether probative of state of mind of accused - whether probative value outweighed by prejudicial effect.
Legislation Cited: - Evidence Act 1995
Cases Cited: - O'Leary v R (1946) 73 CLR 566
- R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
- R v Player [2000] NSWCCA 123; 217 ALR 578
- R v Serratore [2001] NSWCCA 123
Category: Procedural and other rulings
Parties: Crown (Prosecutor)
Viengsavanh Phanekham (Accused)
Representation: Counsel:
G.M. O'Rourke (Crown)
P.D. Young SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Breton Legal (Accused)

File Number(s): 2012/193773
Publication restriction: Nil

Judgment

Evidence sought to be led by Crown regarding on-line video game

On the third day of the trial objection was taken by senior counsel for the accused, Mr P. Young SC, to the leading of some evidence by the Crown concerning the nature of an on-line video game that the accused was playing in the immediate period prior to his confrontation with the deceased that led to the deceased's death. In particular, the Crown proposed to lead evidence from a witness, Don Baena, who was playing the game on-line with the accused. The Crown proposed to adduce the following description of the game from Mr Baena:

"Diablo III is an action role-playing hack and slasher type game. You can be cast as a character including a witch doctor, barbarian, wizard, monk or demon hunter. The whole purpose of the game is to fight your way through this fantasy world and eventually kill the main villain titled 'Diablo'. The game is very violent. As a player, you kill enemies in a variety of ways. You can collect various types of weapons during a game which are used to kill your enemies. For example, a barbarian uses a sword to kill. The violence isn't in a first person mode, such as Doom or other games. The game is played in an overhead view. You actually can't zoom in and see the deaths up close. However, as a role-playing game it is all about hack and slash."

I rejected the evidence and indicated that I would give my reasons later. These are my reasons for so ruling.

The Crown case is that the accused was playing this game at his home on the evening of 20 June 2012. The Crown alleges that the accused was disturbed while playing this game by the yelling and screaming associated with abusive behaviour on the part of the deceased towards his own family at the house next door to the accused. The Crown alleges that the accused yelled out the to the…

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 Phanekham (No 2)

Details

AGLC: R v Phanekham (No 2) [2013] NSWSC 1738
Case: [2013] NSWSC 1738
Decision Date: 26 November 2013

CaseChat Overview and Summary

The appeal before the court was from a decision of Phanekham, who was convicted of manslaughter for the death of a man during a confrontation in Melbourne. The primary issue before the court was whether evidence of the violent nature of a computer game the appellant was playing before the incident should have been admitted. The court had to determine if this evidence was relevant to the state of mind of the accused at the time of the offence, and whether its probative value was outweighed by the potential prejudicial effect on the jury.

The appellant argued that the evidence was not relevant to the state of mind and was potentially prejudicial. The court considered the relevance of the evidence in relation to the state of mind of the accused and whether it could provide insight into the appellant's mindset or actions during the confrontation. It also assessed whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the appellant, taking into account factors such as the nature of the evidence and the importance of the accused's state of mind in the context of the offence.

The court concluded that the evidence was not relevant to the state of mind of the appellant at the time of the offence and that its probative value was substantially outweighed by the danger of unfair prejudice. The evidence was deemed to have little or no probative value in establishing the appellant's state of mind or any connection between the computer game and the offence. The court found that the evidence was more likely to prejudice the jury against the appellant than to assist in determining the case. Consequently, the admission of this evidence was deemed an error that could have influenced the jury's decision.

The appeal was allowed, and the conviction was quashed. The matter was remitted to the Court of Appeal for reconsideration, excluding the inadmissible evidence. The court did not make any further orders regarding the retrial or any other legal proceedings that may follow.

Orders