R v Thompson Kimura and William Rodney Swan (No 1)

In the case of R v Thompson Kimura and William Rodney Swan (No 1), the defendants were charged with various offences including murder and manslaughter. The dispute in this case focused on the admissibility of certain evidence under the Evidence Act 1995 (NSW). The evidence in question included photographs of shorts worn by one of the accused, Swan, which showed several areas of staining. The prosecution sought to introduce this evidence, arguing it was relevant to the case. The defendants, however, applied to exclude the evidence under section 137 of the Act, contending that the probative value of the evidence was outweighed by the danger of unfair prejudice.

The court had to determine whether the probative value of the evidence of the stains was outweighed by the danger of unfair prejudice, as well as whether the evidence of the crime scene officer's opinion was admissible. The court considered the potential for secondary transference of the stains and whether the unavailability of testing results for all stains impacted the admissibility of the evidence. The court found that the probative value of the evidence of the other stains was not substantially outweighed by the danger of unfair prejudice, and thus the evidence was admissible. However, the court held that the evidence of the crime scene officer's opinion was inadmissible as it was based on matters not in evidence.

The court held that the evidence of the staining on the accused's shorts was admissible as it had significant probative value in relation to the charges against the defendants. The court further found that the evidence of the crime scene officer's opinion, which was not supported by evidence or testing, was not admissible as it would have been unfairly prejudicial. The court's decision allowed the prosecution to use the evidence of the stained shorts but precluded the use of the officer's opinion.