R v Russell (No 3)

[2022] NSWSC 1794

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Russell (No 3) [2022] NSWSC 1794

Hearing dates:

26 April 2022

Date of orders:

26 April 2022

Decision date:

26 April 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The tender of the photograph is rejected.

Catchwords:

EVIDENCE — Tendency evidence — Criminal proceedings – where implement located in search of a deceased person’s premises following their death – probative value – relevance

Legislation Cited:

Evidence Act 1995 (NSW), s 97

Cases Cited:

Gardiner v Regina (2006) 162 A Crim R

Hughes v R (2017) 263 CLR 338

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

R v Bryce (No 2) [2014] NSWSC 498

R v Cittadini [2008] NSWCCA 256

R v Lockyer (1996) 89 A Crim R 457

R v Sharpe (No 5) [2021] NSWSC 52

Category:

Procedural rulings

Parties:

Regina (Crown)
Eric George Russell (Accused)

Representation:

Counsel:
C Taylor (Crown)
P Coady (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s):

2019/398216

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. Following the events of the day in which both the deceased persons died, the police undertook a search of the premises of the deceased. There, police located an object which they photographed being a pole with a blade attached to it. It looks, from the photograph, to be home-made.

2. The Crown says that although this implement was obtained as part of the search of the deceased's home, it is not relevant to any issue in these proceedings. The accused submits that it is relevant and specifically it submits that it shows a tendency on the part of the deceased to be violent and aggressive and/or to use weapons as part of that violence.

3. The accused accepts that there is no evidence that the pole was in the possession of the deceased at the time of their death or even in or around the premises on the day of the incident, it was simply found in the home of the deceased. Similarly, the accused accepts that there will be no evidence of the accused being aware of the existence of this implement at any time prior to the events leading to the death of the deceased.

4. The accused submits that, in reality, this is evidence which should be taken in context; in other words, the context in which the deceased attended at the premises of the unit block on the day.

5. The Crown opposes the admission of the photograph into evidence the photograph on the basis that it is not relevant and it has no probative value. To the extent that the accused relies on it as evidence of tendency, it does not form part of the tendency notice of which I have already ruled and, in any event, does not demonstrate any tendency.

6. I reject the tender. I am not satisfied that it has any probative value in all the circumstances. What it shows is that, during a search at some later stage, a hand-made implement was found in the deceased's premises. Nothing more is known about when or how that implement came to be in the premises, who it might have belonged to, who might have made it, whether it had ever been used or, as I have said, that the accused knew anything about its existence.

7. I do not accept, in those circumstances, that the photograph would be evidence which would fall within s 97 of the Evidence Act 1995 (NSW). Again, I will not repeat my earlier ruling on tendency evidence and I do not accept that, in the circumstances, the photograph has any probative value.

8. In the circumstances, the tender is rejected.

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Amendments

28 February 2023 - Final version uploaded.

Decision last updated: 28 February 2023