The State of Western Australia v Brown

[2025] WASC 117

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [2025] WASC 117

CORAM:   MCGRATH J

HEARD:   6 MARCH 2025

DELIVERED          :   7 MARCH 2025

PUBLISHED           :   11 APRIL 2025

FILE NO/S:   INS 23 of 2024

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

LAUREN VIVIAN BROWN

Accused

Catchwords:

Criminal law - Murder - Admissibility of photographs of injury to deceased - Whether probative value outweighs prejudicial effect

Legislation:

Criminal Code (WA)

Result:

Evidence admissible

Category:    B

Representation:

Counsel:

Prosecution	:	Mr M M Cvetkoski & Ms L G Hodson
Accused	:	Mr A E Eyers & Mr E P Fitzpatrick

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Equus Chambers

Case(s) referred to in decision(s):

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

Hillstead v The Queen [2005] WASCA 116

Liyanage v The State of Western Australia [2017] WASCA 112

Minhaj v The Queen [2000] WASCA 52

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

R v Swaffield [1998] HCA 1; (1998) 192 CLR 159

R v Zammit (1999) 107 A Crim R 489

The State of Western Australia v BLM (2009) 40 WAR 414

MCGRATH J:

1. Ms Brown has been indicted on one count of murder contrary to s 279 of the Criminal Code (WA). Ms Brown pleaded not guilty and is proceeding at trial in respect to that count.

2. Ms Brown objects to the State leading evidence of photographs of the deceased in situ and during the postmortem examination. 

3. I determined that the photographs were admissible and that I would provide reasons for that ruling in due course.  These are my reasons for my determination that the photographs were admissible.

The photographs objection - photographs of injuries to the deceased.

1. The State proposes to adduce evidence of photographs taken during the postmortem examination of the deceased.  The objection is in respect to six photographs of the deceased in situ taken by police forensic officers and three photographs taken during the postmortem examination.

2. Counsel for the State submitted that the photographs taken during the postmortem examination had been properly considered to remove and edit images of the deceased save those which are necessary to be adduced.

3. In respect of the photographs of the deceased in situ, the State submits the photographs demonstrate the nature of the assault, the location of the fatal injury and the deployment of a capsicum spray which was located on the head, around the eyes, nose, chin, upper lip and ears of the deceased.

4. The State submits a diagram would not adequately identify the location of injury number three which is subject to objection, when viewed with photographs four and five.  In particular, the State submits the orientation and location of the injury may become a relevant fact at the trial.

5. The State submits the concentration of capsicum spray to the head and face, and injury to the left eyebrow of the deceased is relevant to show clearly that the deceased was assaulted and affected by capsicum spray when the accused inflicted the stab wound to the chest.

6. The State submits, in the absence of the photographic evidence taken of the deceased in situ which shows the orange colouration of the deceased's face, the State would only be able to lead general and clinical description of the distribution of the capsicum spray to the head and the face, by Dr Patton.

7. The photographs capture orange staining on the inner eyelids of the deceased and the surrounding area.

8. It is not controversial that evidence is not admissible unless it is relevant to an issue at trial.  In order for that evidence to be relevant it is necessary that it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[1]

   [1] Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303.

9. Relevant evidence may be excluded if its prejudicial effect exceeds its probative value.[2]  Evidence is prejudicial when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.[3]

   [2] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 191 - 192.

   [3] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [51].

10. There are a number of cases which have considered the exercise of the discretion to exclude photographs that graphically depict injuries of the body of a deceased person.[4]  Though, each case depends upon the relevant circumstances of that case.

    [4] Liyanage v The State of Western Australia [2017] WASCA 112; Hillstead v The Queen [2005] WASCA 116; Minhaj v The Queen [2000] WASCA 52; The State of Western Australia v BLM (2009) 40 WAR 414 [71]; R v Zammit (1999) 107 A Crim R 489.

11. In R v Zammit[5] Wood CJ at [156] observed:

    The sensitivity of jurors to photographs can too easily be overstated.  I can see no reason why a degree of robustness should not be extended in this regard.  Nor can I see why the tender of selected photographs, so long as they have a probative value … should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all.

    [5] R v Zammit [156].

12. I consider that the photographs of the deceased's face are relevant in that the photographs are primary evidence of the extent of orange colouration to the face of the deceased which tend to support the State's contention concerning the incident being that the accused used the capsicum spray to render the deceased defenceless prior to inflicting the fatal injury. 

13. The photographs of the deceased's face are confronting.  I accept that the photographs have probative value.  The photographs will assist the jury in understanding the evidence of the medical practitioner.  A diagram or description would be inferior to the photographs in the determination of the questions that they would be asked to consider.

14. I do not consider that the probative value is outweighed by the prejudicial effect.  I will give a direction concerning the photographs in terms similar to that approved in Hillstead v The Queen[6] and Minhaj v The Queen.[7]   I do not consider that a properly directed jury would determine the case otherwise than according to law and by a proper assessment of the entire evidence at trial. 

    [6] Hillstead v The Queen [63].

    [7] Minhaj v The Queen [15].

Conclusion

1. Accordingly, I am satisfied that the photographic evidence subject to the objection is admissible.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RH

Associate to the Hon Justice McGrath

11 APRIL 2025