The State of Western Australia v Brown

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:

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

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

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

The matter before the court was an appeal by the respondent, Brown, against his conviction for murder. The case involved the death of a person, and the prosecution sought to introduce photographs of the injuries sustained by the deceased. Brown argued that the photographs were inadmissible as their prejudicial effect outweighed their probative value. The High Court of Australia was called upon to determine the admissibility of the photographs in question.

The central legal issue was whether the probative value of the photographs of the deceased's injuries outweighed their prejudicial effect, as per the common law principles governing the admissibility of evidence in criminal trials. The court had to consider the relevance of the photographs in establishing the cause and nature of the injuries, as well as the potential for the images to unduly influence the jury. This required a careful balancing of the need for a fair trial against the importance of presenting a complete picture of the events leading to the death.

The court held that the probative value of the photographs did indeed outweigh their prejudicial effect. It found that the images were necessary to provide the jury with a comprehensive understanding of the injuries sustained by the deceased, which was critical in establishing the nature and cause of death. The court also considered the potential for the photographs to unduly influence the jury but determined that proper directions could be given to mitigate this risk. Consequently, the appeal was dismissed, and Brown's conviction for murder was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of Brown's conviction.

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established