R v Tangi (No 8)

[2020] NSWSC 543

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tangi (No 8) [2020] NSWSC 543
Hearing dates:	20-21, 25-29 November, 2-6, 9 December 2019
Date of orders:	09 December 2019
Decision date:	09 December 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Evidence admitted for purpose confined to explaining markings in photograph.
Catchwords:	EVIDENCE – criminal proceedings – presumptive test for blood – not relevant except to explain stains on shoes – no evidence that stains were blood
Legislation Cited:	Evidence Act 1995 (NSW), s 137
Category:	Procedural and other rulings
Parties:	Regina (Crown) Abraham Ryan Tangi (Accused)
Representation:	Counsel: P Hogan (Crown) G Wendler (Accused)   Solicitors: Director of Public Prosecutors (NSW) (Crown) Universal Lawyers (Accused)
File Number(s):	2017/242644
Publication restriction:	Not to be published until the conclusion of the trial

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an objection to the whole of the evidence that is contained in para 50.2 of the witness statement of Jeffrey McInnes dated 27 August 2018. Given the nature of the content, the Crown concedes the part that deals with the presumptive test is taken no further, and ought not be adduced in evidence. Frankly, that concession is an appropriate one in the circumstances.

2. The Crown seeks to press the first two sentences which do no more than say that there was staining, and it was indicated in blue graphs 5, 6, 7 and 9. As I understand the Crown's case, there will be photographs adduced which are relevant to the blue graphs, 5, 6, 7 and 9, and they need to be explained. Defence essentially says that the photographs will lead the jury to speculate about what it is.

3. It seems to me that such speculation may be a danger, which is the only requirement necessary for the purposes of s 137 of the Evidence Act 1995 (NSW) (hereinafter “the Act”). Section 137 deals with the danger of unfair prejudice.

4. However, I think that danger can be overcome by an appropriate direction in or to the effect that this cannot assume or presume that this swabbing or testing revealed any blood, or anything other than it is otherwise shown up in the material. In those circumstances, it seems to me the unfairness or the danger of unfairness can be overcome appropriately, and I will allow the first two sentences.

5. I make it clear that its relevance is only for the purpose of explaining the markings on photographs that will be tendered, and are otherwise relevant either for context or otherwise, and no other use can be made of them. For this reason, under the confined purpose rule of s 136 of the Act, I make that direction.

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Decision last updated: 13 May 2020