Re Mayhoub (Ruling No 3)
[2020] VSC 644
•2 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0286
| IN THE MATTER of the Director of Public Prosecutions |
| v |
| SAMIR MAYHOUB |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2020 |
DATE OF JUDGMENT: | 2 October 2020 |
CASE MAY BE CITED AS: | Re Mayhoub (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 644 |
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CRIMINAL LAW – Ruling – Charge of murder – Accused alleged to have stabbed deceased in the chest – Description of hand movement of the accused as thrusting motion – Reliance on hand movement as incriminating conduct – Forensic pathologist evidence regarding degree of force – Admissibility of autopsy photographs – Prosecution not permitted to describe hand movement as thrusting motion – Hand movement not permitted to be placed before the jury as incriminating conduct – Forensic pathologist evidence permitted to be adduced – Autopsy photos permitted to be adduced – Jury Directions Act – Evidence Act – Criminal Procedure Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hayward with Ms K. Hamill | Office of the Public Prosecutions |
| For the Accused | Ms R. Shann with Ms F. Fox | Stary Norton Halphen |
HIS HONOUR:
Introduction
The accused Samir Mayhoub is charged with the murder of Bunyamin Oksuz (‘the deceased’). It is alleged that the accused caused the death of the deceased by stabbing him once in the chest with a knife.
This ruling addresses the following four issues:
(a) Whether the prosecution are permitted to open to the jury and conduct the trial on the basis that, during a conversation with a police officer, the accused demonstrated thrusting the knife into the deceased’s body;
(b) Whether the accused’s alleged demonstration of a thrusting motion can be used as post-offence conduct;
(c) Whether the opinion of a forensic pathologist that ‘at least moderate force was used’ to inflict the fatal wound can be led in evidence; and
(d) Whether two autopsy photographs should be admitted into evidence.
The prosecution case
On 22 May 2019 at approximately 9.00pm, the deceased and his friend, Kenan Kaya, went to the accused’s house. It is alleged that the purpose of this visit was to discuss a debt of $8,400 owed by the accused for cabinet making work performed by the deceased. The prosecution case is that this debt had been outstanding since May 2018 and that the deceased had made numerous non-violent requests to obtain the money, including sending the accused text messages and attending his house with his wife on 20 May 2019.
When the deceased and Kaya arrived at the house, it is alleged that an argument occurred on the front porch with the accused, followed by a brief physical altercation amongst the three men inside the house. The accused’s wife then ejected the deceased and Kaya from the house. Having armed himself with a knife, the accused went back onto the porch where the argument with the deceased continued. Despite attempts by his wife to de-escalate the conflict, it is alleged that the accused stabbed the deceased once in the chest during the course of a physical struggle that developed on the front porch. The accused then re-entered his house and shut the front door. The deceased retreated from the porch and collapsed onto the road outside the accused’s house, where he died shortly after.
The events occurring on the porch were captured on CCTV installed near the front door, but without audio. This vision, which is to be played to the jury, depicts the struggle between the accused, his wife and the deceased on the porch. It appears uncontroversial that the accused was holding a knife in his right hand during these events.
The prosecution case is that during the struggle the accused stabbed the deceased with the knowledge that it was probable that really serious injury would occur. It is thus alleged that he is guilty of murder. Alternatively, the prosecution case is that the accused is guilty of manslaughter on the basis that he committed an unlawful and dangerous act which caused the deceased’s death, namely engaging in a physical altercation with the deceased while armed with a knife.
The prosecution alleges that subsequent to the events on the porch, and as the deceased was being treated by ambulance officers, a conversation took place at the front of the house between Sergeant Stephen Solyom and the accused. It is alleged that Solyom asked the accused about his version of the events and that the accused stated, amongst other things, that the deceased had come back and ‘started punching’ and that ‘accidentally, the knife just went, matter of, just a little bit.’ At the same time, it is alleged the accused demonstrated a thrusting motion with his right hand. The words and alleged motioning of his hand were recorded on a police body worn camera device (‘the bodycam’) attached to Solyom.
The prosecution case is that when the accused made the hand movement during the conversation with Solyom, he was demonstrating that he had taken a deliberate action on the porch, which resulted in the stabbing of the deceased.
Later, in a formal police interview held at a police station, the accused said that the deceased had ‘come back and started throwing punches’, getting him a few times on the face while he was ‘blocking’. Further, he stated ‘I don’t know how the knife got there, I wasn’t trying to – murder him – murder him or anything, just – just happened’. He also said he had ‘covered’ and ‘moved’ and the ‘knife went through his body’, and that he was ‘pretty sure it didn’t go deep inside’.
Dr Linda Iles, forensic pathologist, conducted an autopsy on the deceased’s body. She found that the cause of death was a single stab wound to the right chest wall. The wound penetrated into the right chest cavity, extending through the right middle lobe of the lung and injuring the right pulmonary arteries and veins. There was an incised defect through the right third intercostal space, as well as to the third and fourth right costal cartilages. The stab wound penetrated the cartilage between the deceased’s ribs and struck his right lung. The blood loss from that injury was the medical cause of death.
Further, the stab wound penetrated the deceased’s chest to a depth of approximately 10 cm, with a width of 3.9 cm. The stab wound penetrated the chest wall from front to back, slightly from above to below and from right to left. Dr Iles provided an opinion that ‘at least moderate force’ was required to inflict the stab wound, given the blade passed through costal cartilage.[1]
[1]This evidence is found in paragraphs 2-3 of Dr Iles report, and is referred to in the prosecution opening, see paragraph 80.
The defence response
In the Response to the Summary of Prosecution Opening, the defence concedes that the deceased died as a result of a single stab wound to his chest, caused by a knife held by the accused. The defence denies that the accused deliberately caused the knife to enter the deceased’s body.
The defence proposes that the issues of causation, deliberateness and self-defence or defence of another will arise, depending on how the prosecution particularises the unlawful and dangerous act/s. It also draws attention to the dynamic movements of the three persons on the front porch, during which it is asserted that the knife in the accused’s possession accidentally entered the deceased’s body.
Did the accused demonstrate a thrusting motion?
The prosecution seeks to open the case to the jury that the bodycam video footage depicts the accused demonstrating a thrusting motion when stabbing the deceased. Notably, at the same time as the asserted demonstration, the accused verbally stated the stabbing was an accident. The prosecution asserts that the physical movement of his hand was a demonstration that he had deliberately stabbed the deceased.
The bodycam evidence
As above, the purported demonstration by the accused was captured on the body worn camera footage of Sergeant Solyom. I note that this footage, labelled ‘BODYCAM FOOTAGE Compilation Disk 2’, was played and provided to the Court. With the agreement of the parties, I have viewed the relevant footage numerous times, in addition to the CCTV footage of the events on the porch.
I also note Solyom’s statement dated 23 May 2019 about the events of the night, which recited parts of his conversation with the accused. In his statement he did not describe the alleged hand movement or any other physical movements by the accused during their interaction.
The prosecution’s submissions
The prosecution submits the accused demonstrated a ‘thrusting motion with his right hand’ when speaking to Solyom, as depicted in the bodycam footage. It points out that at the same time as the alleged thrusting motion the accused said that, ‘accidentally the knife just went – matter of just a little bit’.
It is contended that the thrusting motion should not be considered in a vacuum, but assessed in the context of other occurrences. Firstly, the prosecution points to the accused’s previous admissions to Senior Constable Dean Hartwell that he was defending himself with his arm, that he got a knife to protect himself, that he did not want to use it, that it was for his protection, and ‘they kept punching me and I stabbed him. It didn’t go in far.’ Further, it also refers to the accused’s purported admission to Constable Leigh, being ‘I know it wasn’t deep’.
As such, the prosecution submission is that, by the time the accused spoke to Solyom, he was again attempting to verbally emphasise that his actions were accidental, but at the same time as physically demonstrated what he actually did. It is submitted that the movement he made is clearly, and can be accurately described as, a thrusting motion.
Secondly, by a Notice of Incriminating Conduct dated 18 August 2020, the prosecution intends to adduce evidence of the alleged thrusting motion as evidence of incriminating conduct. I note that such notices are required to be given at least 28 days before trial and that the prosecution conceded that the notice was provided in an untimely way. Further, I note that a Notice of Incriminating Conduct was not filed in respect of the bodycam footage of Constable Leigh.
The prosecution submits that it should be a matter for the jury to consider whether the impugned hand movement amounts to an admission that the accused voluntarily struck the deceased with the knife. Accordingly, it seeks to rely on the alleged demonstration as an act or piece of conduct amounting to an admission that he deliberately struck the deceased.
It is submitted that the hand movement made by the accused in front of Solyom is a re-enactment of how the knife went into the body of the deceased. Pursuant to s 20 of the Jury Directions Act (‘JDA’), the prosecution submits that the evidence is reasonably capable of being viewed by the jury as evidence of incriminating conduct. It is contended that it will be open for a rational jury to conclude that the only reasonable explanation for the action was that the accused remembered, and was demonstrating, the thrusting motion he made when he allegedly struck the deceased deliberately.
It is further submitted that there is currently no evidence supporting another plausible explanation for the hand movement. Finally, the prosecution contends that the hand movement was not equivocal, but rather a clear physical movement, despite being coupled with an exculpatory statement.
The defence’s submissions
The defence submits that the hand movement by the accused cannot be properly or fairly described as a ‘thrusting motion’. It is pointed out that the alleged ‘thrusting motion’ was made at the same time as the accused stated that the entry of the knife was ‘accidental’. Referring to the bodycam footage, the defence argues that, when viewed carefully, the accused can be seen to move his hand forward and then hold his index finger and thumb apart while saying that ‘the knife went in just a little bit’. It is contended that the prosecution have ignored this particular statement. As such, it is submitted that the prosecution are simply using conjecture and speculation with respect to the hand gesture, rather than seeking to draw an inference adverse to the accused on a proper foundation.
Referring to the Notice of Incriminating Conduct, the defence also submits that, in seeking to rely on the hand movement of the accused as amounting to an admission of deliberateness, the prosecution has failed to properly consider the terms of the JDA. Namely, it is submitted that the hurdle in s 20 JDA has not been met, as when the evidence is viewed as a whole, the hand movement is not capable of being viewed by the jury as incriminating conduct. The defence relies on the fact that when the accused makes the hand movement, the bodycam footage shows him verbally expressing that the entry of the knife in the deceased was accidental. As such, it is submitted that the prosecution should not be permitted to put, or hint, to the jury that the accused had admitted to committing a deliberate act through his hand movements.
In oral submissions, the defence argued that the first step is to consider the definition of an admission in the Evidence Act 2008 (‘EA’). While it was acknowledged that an admission can be a previous representation to be inferred from conduct, it was argued that the alleged ‘thrusting motion’ must be assessed in the context of having occurred at the same time the accused clearly asserted that the knife went into the deceased’s body accidentally. The defence contended that, when combined with the verbal assertion, the physical representation becomes equivocal and cannot amount to an admission. As such, pursuant to ss 18 and 20 JDA, it is submitted that the impugned conduct could not reasonably be capable of being viewed by a jury as an implied admission and evidence of incriminating conduct.
The defence referred to R v Doolan[2] in support of its argument regarding the equivocality of the evidence. In determining whether s 20 JDA has been satisfied, it is submitted that the Court must consider the evidence that will be before the jury and ask whether a rational jury could conclude that the only reasonable explanation for the hand movement of the accused is one of guilt.
[2]R v Doolan [1962] Qd R 449.
With respect to the effect of s 20 JDA, the defence pointed to the cases of Zhuang,[3] Scriven,[4] and Novakovic.[5] In Zhuang, Kaye J held that it was not the task of the judge to determine whether the jury should draw the inference contended for by the prosecution, but rather ‘to determine whether the jury acting rationally could conclude that the only reasonable inference from the post-offence conduct indulged in by the accused is that contended for by the prosecution’.[6] Applying that principle to the present case, it is submitted that the Court should ask whether the only reasonable inference from the hand movement of the accused was that he was admitting to deliberately entering the knife into the deceased. Further, it was noted that Kaye J (as his Honour then was) also stated that this question must be considered in the context of all of the evidence and background circumstances.
[3]DPP v Zhuang [2014] VSC 276.
[4]DPP v Scriven (Ruling No. 4) [2015] VSC 220.
[5]R v Novakovic & Ors (Ruling 1) [2019] VSC 338.
[6]DPP v Zhuang [2014] VSC 276 at paragraph 21.
In Scriven, Maxwell P referred to the decision of Kaye J and observed that there is an obligation on the judge to ‘make some assessment of the plausibility of any innocent explanations for the relevant conduct.’[7] The defence submitted that the question to be asked by the trial judge is ‘whether on the whole of the evidence, it will be reasonably open to the jury to conclude that the conduct in question could only be explained by the accused having had the relevant belief in his own guilt’.
[7]DPP v Scriven (Ruling No. 4) [2015] VSC 220 at paragraph 22.
In Novakovic, Croucher J stated ‘put another way, it seems to me to be impossible for any rational jury to conclude that the only reasonable explanation for the conduct in issue is that Mr Novakovic held the belief that he killed Mr Demoski with murderous intent.’[8] It was submitted that the required question under s 20 JDA is ‘whether there is another obvious and eminently reasonable explanation’ for the motion carried out by the accused.[9]
[8]R v Novakovic & Ors (Ruling 1) [2019] VSC 338 at paragraph 4.
[9]Ibid.
Thus, the defence in this case submits that the relevant question is whether it is possible for a rational jury to conclude that the only reasonable explanation for the accused’s hand movement is that he held the belief he voluntarily and deliberately struck the deceased with the knife. It is contended that an obvious reasonable explanation is that the accused, with his particular cultural background, communicates by moving his hands when he talks and thus meant nothing when he made the impugned hand movement. Alternatively, it is submitted that it is open to conclude that as the deceased moved forward, the accused moved slightly to block the deceased and the knife went in accidentally. The defence submits that it is only if you presume the accused’s guilt that there is evidence capable of colouring the movement in the way sought by the prosecution. It is contended that this is a classical circular bootstrapping form of reasoning, which does not amount to post offence conduct. As such, the defence argues that the requirement under s 20 JDA has not been met.
Analysis and conclusions
As above, I have reviewed the relevant footage, audio conversation and transcript of the conversation.
Taking into account my assessment of the footage, and the evidence bearing on the issue, I am not satisfied that the movement of the accused’s hand is capable of demonstrating a deliberate ‘thrusting motion’.
It is evident from the bodycam footage that the movement of the accused’s right hand occurred contemporaneously with him saying that the entry of the knife into the body of the deceased was accidental. It is my opinion that the movement, as recorded, was fleeting, momentary and equivocal in its nature. It occurred in the context of the accused’s conversation with Solyom, shortly after the confrontation on the porch and in an atmosphere that remained highly charged. From my observations of the whole of relevant footage, and conversation, it is apparent that the accused frequently used a series of hand movements during the conversation, with some but not all appearing to be relevantly connected to the particular topics being discussed.
In my opinion, the hand movement suggested by the prosecution to amount to an implied admission of guilt comes nowhere near to conveying any particular meaning, or specifically the meaning contended for by the prosecution.
Furthermore, to put the issue before the jury as proposed would be to invite it to attempt to reconcile a verbal utterance denying a deliberate act with a fleeting physical gesture, suggested to be unconscious body language conveying an incriminatory meaning opposite to the verbal assertion. In my opinion, this is simply asking too much for a jury to rationally accept and falls into the realm of speculation.
Having regard to the evidence as a whole, it is my opinion that the prosecution has not satisfied me that the impugned conduct can amount to an implied admission by the accused of having committed the offence charged or an element of it. Pursuant to s 20 JDA, I determine that the evidence of the suggested hand movement is not reasonably capable of being viewed by the jury as evidence of incriminating conduct.
In the circumstances, I will not permit the evidence of the accused’s hand movement to be put before the jury as incriminating conduct. However, in my opinion, the footage can be presented to the jury in its present form, as there is almost no risk that the jury will make anything of the hand movement. The evidence of the movement is so lacking in probative value that I do not take the view that a juror acting rationally will take it to be demonstrative of a deliberate act having occurred. However, should the movement be opened or hinted at, there is a risk that the jury may make more of the vision than it deserves. As such, while the footage can be played to the jury, the movement cannot be opened or hinted to as amounting to a deliberate act of stabbing being demonstrated by the accused.
Dr Iles’ opinion regarding the degree of force
The prosecution seeks to lead evidence from Dr Linda Iles, forensic pathologist, that ‘at least moderate force’ was required to inflict the stab wound to the deceased.
The evidence of Dr Iles
As above, Dr Isles provided a statement to police and gave evidence during a hearing pursuant s 198B of the Criminal Procedure Act. The evidence provided in her statement is summarised above. Relevantly to the present application, Dr Iles gave oral evidence that she saw a photograph of the alleged weapon, as per her first report, and the footage of the altercation between the accused and deceased. Having seen these materials, Dr Iles was unable to provide any opinion based on specialised knowledge as to whether the force was wholly or partly caused by the deceased moving forward onto the knife.
Dr Iles confirmed that her opinion that ‘at least moderate force’ was required to inflict the wound was only based on her consideration of the anatomical structures that the blade passed through.
Further, Dr Iles also confirmed that an assessment of the force required to inflict knife wounds is problematic as it involves an assessment of numerous matters, some of which are not able to be determined. She noted that she could only speak about the forces required to produce a particular type of injury to tissues of the body. Further, Dr Iles noted that a stab wound is merely a wound where the knife penetrates directly into the body, opposed to an incised wound which cuts across the surface.
The defence’s submissions
The defence submits that the opinion evidence of Dr Iles should be excluded pursuant to ss 135 and/or 137 EA. It points to her concession that the assessment of force required to inflict a stab wound is problematic. Further, it notes that Dr Iles advanced the following four matters as being relevant to the assessment of the degree of force used:
(a) the shape and taper of the implement used;
(b) the composition of any clothing that the implement may pass through;
(c) the relative kind of kinetic energy between the blade and the deceased; and
(d) the anatomical structures that the blade passes through.
The defence notes that Dr Iles confirmed she could only speak to the fourth matter in the present case. It is submitted that one of the facts in issue in the trial will be the direction from which the force came, which relates to kinetic energy. The defence contends that the relevant question will be whether the force of the energy came from the accused, the deceased or a combination of both bodies in movement. Reference was made to Dr Iles’ evidence that ‘the relative kinetic energy is really just the energy that an object possesses due to its motion’ and her description of the footage as demonstrating ‘dynamic movement’. The defence also refers to Dr Iles’ evidence that her use of the term ‘moderate force’ was not a reference to the direction of that force.
The defence points to the account given by the accused in his police interview, being that he had not used force at all and was not even trying to do so. Submitting that it is the direction of the force which will be a relevant issue before the jury, the defence contends that this is not a matter upon which Dr Iles could provide evidence.
Further, it is submitted that Dr Iles has not provided an opinion on whether the anatomical structures have any bearing on the issue of deliberateness. Accordingly, the defence argues that there is limited relevance and probative value that arises from her evidence to render her opinion about ‘at least moderate force’ relevant. It contends that it was difficult to determine the conclusion that could be reached by a jury based on Dr Iles evidence, given that the fact in issue relates to the direction of the force employed.
As such, the defence argument is that Dr Iles’ evidence regarding the use of at least moderate force has limited to no probative value to a relevant fact in issue. On the other hand, should the evidence be led, it is contended that there would be a significant risk of misuse by the jury and a danger of unfair prejudice to the accused. The defence notes that the jury could observe the struggle on the porch on CCTV footage and determine for itself what degree of force may have been used.
The prosecution’s submissions
The prosecution contends that Dr Iles did not bluntly assert that at least moderate force was used to cause injury to the deceased, but instead offered a scientific explanation of the factors which can and cannot be used to determine the degree of force.
It is submitted there is no risk that the jury will misuse the evidence if it is carefully explained in the scientific terms employed by Dr Iles statement, with the necessary qualifications. The prosecution notes that Dr Iles properly conceded to there being other factors in the assessment of the degree of force and discounted such factors as being available in this case. As such, it is submitted that Dr Iles can state that the damage to the deceased’s costal cartilage would require at least moderate force.
The prosecution argues that, in the absence of any explanation by a qualified person on this issue, the jury may speculate and draw their own conclusions regarding the degree of force. It is contended that a significant issue in the trial will be whether the fatal strike was deliberate. Accordingly, it is submitted that an opinion from a pathologist that the damage to the deceased’s costal cartilage required at least a degree of moderate force has relevance to the jury’s assessment.
Analysis and conclusions
In my opinion, evidence of the application of ‘at least moderate force’ can be given by Dr Iles. Her opinion does not directly speak to deliberateness, which is a major issue in the trial. In some cases, a forensic pathologist can opine whether an injurious act was deliberately carried out through assessment of the type, location and nature of the injury, but that is not the case here.
The prosecution case is that the accused committed a deliberate act in stabbing the deceased. Numerous pieces of evidence will be before the jury, including CCTV footage of what occurred on the porch. In this trial, it appears to me that the questions of deliberateness and force are inter-related issues, of relevance to each other. It is plainly obvious that, in circumstances where the prosecution assert a deliberate act took place, the penetration by the accused of a knife into the body of the deceased involves an application of force. In my opinion, it is relevant for the jury to consider whether a degree of force was applied when determining whether the accused’s act was deliberate. Without evidence of the application of force by the accused, deceased or combination of both, the jury may speculate as to how the injury to the deceased occurred.
As above, the jury will be able to see vision of the events on the porch for themselves, including the degree of force applied by the three persons involved. In my opinion, it will be open to the jury to determine that all participants were applying multi-directional force in the dynamic struggle that occurred. The jury will also have the evidence of Dr Iles as to her opinion that at least a moderate degree of force was needed to penetrate the deceased’s body. They will be able to assess for themselves the circumstances of how and why the knife entered the deceased’s body.
Thus, it is my opinion that the evidence of Dr Iles is relevant to facts in issue in the trial and should be led before the jury. I accept the prosecution’s submission that Dr Iles’ opinion is scientific and transparently explained, with its limitations easily able to be put before the jury and understood. Ultimately, it will be a question of what weight the jury decide to place on her evidence.
In respect of ss 137 and 135 EA, I reject the submission that the evidence should be excluded from the jury’s consideration. In my opinion, the evidence is of probative value and there is little to no risk of the jury misusing it if it is properly explained. As such, I do not think the probative value of the evidence is outweighed by any prejudice.
Further, the evidence of Dr Iles is not inconsistent with what the jury will see for themselves, which is largely uncontroversial. Finally, the evidence alleviates the inevitable question posed by a juror as to what degree of force would be required to penetrate the deceased’s body with a knife.
The autopsy photographs
As above, an autopsy was performed on the deceased’s body and a series of photographs taken. The prosecution seek to tender two of these photographs into evidence. Both show the deceased’s body in the autopsy environment. One photograph shows the torso of the deceased and the stab wound. The other depicts a member of the coronial staff holding a long and thin metal rod, demonstrating the track taken by the knife when it penetrated the body of the deceased.
The defence objects to the tender of these two photographs.
The defence’s submissions
The defence submits that no autopsy photographs ought to be admitted into evidence or relied on by Dr Iles in giving evidence. Rather than relying on graphic photographs, it is submitted that the autopsy images and any evidence arising from them can be visually demonstrated to the jury through the use of an anatomy program. The anatomy program provides a three-dimensional representation of particular parts of the body. The defence contends that it is unnecessary to show graphic and confronting photographs to the jury, which will carry a level of prejudice to the accused, where a more neutral and sensitive approach could be taken through use of the anatomy program.
Further, it is submitted that there is no issue about which the way the knife was held, and the length of the wound, thus contributing to the lack of necessity in placing these photographs before the jury.
The prosecution’s submissions
The prosecution maintains its intention to adduce the photographs into evidence. It submits that a sensitive approach can be ensured by cropping the head of the deceased from any photograph shown. It is submitted that the first photograph is relevant in showing the position, length and breadth of the entry wound and that the other is relevant in showing the jury the track taken by the knife. The prosecution contends that the photographs constitute the best evidence of the injury and its location, as well as informing Dr Iles opinion as to the position in which the knife was held. It is submitted that the photographs will assist Dr Iles in giving evidence, particularly in explaining the entry wound and the way in which the knife entered the body.
It was pointed out that Dr Iles evidence was that she had not previously produced images in respect of this particular issue on the anatomy program.
Analysis and conclusion
The defence accepts that as a general rule autopsy photographs would not normally be shown to a jury unless relevant to a particular issue to be determined. However, I would add that the prosecution is entitled to adduce evidence that assists in placing an appropriate narrative before the jury. It is conceded by the defence that the two photographs under consideration have relevance and were shown to Dr Iles during her oral evidence. Further, one of the photographs was employed to demonstrate the angle at which the knife may have entered the deceased’s body.
On being questioned about the metal rod depicted in photograph 51, Dr Iles stated it was used to demonstrate the trajectory of the knife into the deceased’s body. The photograph demonstrates that the trajectory is from front to back, but also shows the direction from the deceased’s right to left. Dr Iles confirmed the possibility of using an anatomy program rather than showing an autopsy photo to the jury.
Dr Iles conceded that she could give the sort of representation contained within the above photograph by using the anatomy program, and that it may be more sensitive than to show the jury photographs of the deceased’s body. It was also submitted that the anatomy program could be used to show the size of the knife wound. As such, the defence contends that in circumstances where the same evidence can be given in a more sensitive manner, such an approach should be preferred. On the other hand, the prosecution argues that the photographs constitute the best evidence and should be placed before the jury.
I agree with the submissions of the prosecution, being of the opinion that the two photographs can properly and safely be put before the jury. Firstly, the photographs contribute in providing an acceptable degree of narrative, thus assisting the jury in understanding the prosecution case. Additionally, the photographs will assist Dr lles in giving her evidence and explaining the nature of the entry wound and the direction of the knife’s penetration. The prosecution is entitled to put these matters before the jury.
Further, it is my opinion I should not exercise a discretion to exclude the evidence on the basis that the probative value of the photographs is substantially outweighed by the danger of unfair prejudice to the accused or that they might be misleading or confusing. I do not accept the submission that the photographs are particularly graphic and confronting. Provided that appropriate warnings are given, the jury acting properly will easily be able to grapple with the evidence and not be overwhelmed by any prejudice towards the accused. It is clear to me that the photographs are towards the lower end of confronting, in comparison to similar types of photographs regularly placed before juries in other cases.
Accordingly, I rule that the two photographs can be adduced into evidence, as sought by the prosecution.
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