A Barrister's Blog

R v Tran (No 2) [2022] NSWSC 1391 is a fairly gruesome murder case where the elements of murder were conceded but there was a partial defence of substantial impairment.  Let me extract some facts for you:

• There is no dispute that the accused used an axe to effect the death of the deceased extremely violently;
• Tragically, the face and head of the deceased were struck repeatedly and very heavily with the axe;
• There has already been evidence that process sounded like “chopping meat”;
• There is also evidence  of “a gurgling sound” being heard;
• There are also some very illuminative CT scans, about which the forensic pathologist in oral evidence drew the metaphor of an eggshell having been cracked repeatedly.

Although the jury had been provided with a scaled photograph of the axe, the issue in the case became whether the axe, suitably packaged, should go into the jury room. The court had to consider whether the probative value of having the actual axe is outweighed by the danger of unfair prejudice to the accused (pursuant to s137 Evidence Act). Button J’s ruling included:

15. As for the axe itself that effected the homicide: there is nothing horrific or disgusting about it. …
16. Having said that, Parliament has asked me to reflect on contingencies by use of the phrase “the danger of unfair prejudice”. I think that it is one thing for a person involved in the criminal justice system for many years to be used to looking at and thinking about homicide weapons, as opposed to a layperson perhaps. Holding it in one’s hands – a plastic container that contains an item that was used violently to end the life of a fellow human being – may, on the part of some jurors, give rise to a danger of unfair prejudice.

….the axe will not be going into the jury room.

Creative commons acknowledgment for the photograph.