R v Carberry (No 4) [2023] NSWSC 176

R v Carberry (No 4) [2023] NSWSC 176

The temperature evidence and the photographs crossed the low threshold of relevance because they could rationally assist the jury in assessing the accused's account, the prosecution case about why the car window was open, the layout of the premises, and Ms O'Hanlon's evidence. Any unfairness from photographs taken after the event could be addressed by explaining changes to the jury and, if sought, recalling Ms O'Hanlon for further examination or cross-examination.

Jurisdiction
Australia
Judgment Date
01 March 2023
Procedural Posture
Criminal Proceeding / Procedural Ruling on Objections to Prosecution Evidence During Trial
Outcome
Objections dismissed; the temperature evidence and photographs in Exhibit VD-F were ruled admissible, with leave to recall Tearna O'Hanlon to be granted if sought. After the ruling, the Prosecutor withdrew the tender of photographs 4, 5 and 6.
Legal Topics
['relevance' 'admissibility of Circumstantial Evidence' 'photographic Evidence' 'recall of Witness']
['criminal Law' 'evidence'] ['relevance' 'admissibility of Circumstantial Evidence' 'photographic Evidence' 'recall of Witness']

Case Brief

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Procedural Posture

Criminal Proceeding / Procedural Ruling on Objections to Prosecution Evidence During Trial

Legal Issues

  1. 1 ['Whether evidence of the temperature in Griffith at 09.00am on 11 September 2020 was relevant and admissible.' 'Whether photographs of 9 and 11 Middleton Avenue contained in Exhibit VD-F were relevant and admissible despite some being taken more than two years after the events.' "Whether any unfairness from late photographic evidence concerning Ms O'Hanlon's position and capacity to see could be cured by recalling her under s 46 of the Evidence Act 1999 (NSW)."]

Ratio Decidendi

The temperature evidence and the photographs crossed the low threshold of relevance because they could rationally assist the jury in assessing the accused's account, the prosecution case about why the car window was open, the layout of the premises, and Ms O'Hanlon's evidence. Any unfairness from photographs taken after the event could be addressed by explaining changes to the jury and, if sought, recalling Ms O'Hanlon for further examination or cross-examination.

Court Disposition

Objections dismissed; the temperature evidence and photographs in Exhibit VD-F were ruled admissible, with leave to recall Tearna O'Hanlon to be granted if sought. After the ruling, the Prosecutor withdrew the tender of photographs 4, 5 and 6.

Orders

  • ['The evidence proposed by the Prosecutor to be led by the officer in charge as to the temperature in Griffith at 09.00am on 11 September 2020 is admissible.' 'The photographs contained in Ex VD-F are admissible.' "If an application is made to recall Tearna O'Hanlon pursuant to s 46 of the Evidence Act 1999 (NSW),...