Director of Public Prosecutions v Young

(1) The timing of McGuire's death, being between 1.50am and 2.53am on 5 April 2024.

(2) McGuire was already deceased by the time her body was driven in the Triton ute to Scarsdale, which was later set alight.

(3) Young engaged in a "protracted and shameful" series of behaviours trying to distance himself from the killing.

(4) Young obtained possession of McGuire's phone and sent messages to himself and McGuire's mother "foolishly" suggesting McGuire might have taken her own life.

(5) Young transferred money from a banking application on McGuire's phone in a "desperate attempt" to make the deception seem more plausible.

(6) After McGuire's body was found, Young carried on with his untruths with those to whom he spoke, including friends and family, and then later police.

1. The admissions made in front of the jury were explained on the basis that Young had attempted to avoid the peril he had placed himself in over the killing he did not intend; and that it was not a murder.
2. Although not expressly stated to the jury yet, the court has also been informed that there will be no dispute that:

(1) McGuire was killed at the home jointly owned by Young and McGuire.

(2) Young placed McGuire's body in the rear footwell of her car.

(3) Young drove in her car to a state forest, followed by a friend in another car.

(4) Young was present while the car was ignited and McGuire was incinerated.

1. There is a substantial body of evidence that will be adduced by the prosecution to establish such matters.
2. The prosecution's opening address also squarely identified the real issues in the case. It was acknowledged that the prosecution is required to prove all 4 elements of the offence of murder beyond reasonable doubt.[1] However, in light of Young's plea of guilty to manslaughter, the differences between the elements of that offence and murder were identified. The jury was told that "[e]lements 1, 2 and 4 are the same". Then, the "key difference" of element 3 was referred to, being an intention to kill or cause really serious injury at the time Young committed the acts that caused the death of McGuire.
3. Accordingly, whether or not Young had a murderous intent at the relevant time is the substantive issue between the parties.

1. The photograph from the autopsy
   • B.1 Existing evidence

1. A view was undertaken yesterday. Before it was conducted, evidence was adduced from the informant, Detective Senior Constable James Allen from the homicide squad.
2. Photographs were tendered as part of a photobook of the arson scene. Photographs numbered 22, 71, 72 and 91 of this photobook all show what remained of McGuire's body as it was found in the rear footwell of the vehicle, but the remains were partly obscured. A further photograph, number 151, showed the body in the same location, but apparently after the material that had been obscuring her body had been removed. Her remains were clearly depicted in this photograph which was taken from the left rear door.
   • B.2 Further evidence sought to be adduced
3. In addition to these photographs, the prosecution seeks to adduce the evidence of a single photograph from the autopsy. That photograph shows the remains of McGuire on a tarpaulin.
   • B.3 The submissions
4. In emphasising that this was a murder trial, the prosecution submitted a significant part of the allegations concerned the fact that Young burnt McGuire's body such that relevant evidence was eviscerated, including the manner in which McGuire was killed.
5. It was submitted the photograph was relevant to causation, as to why the opinion of the forensic pathologist who conducted the autopsy, Dr Joanna Glengarry ("Glengarry"), is limited, and why a cause of death could not be established. The evidence will include that Dr Glengarry was not able to examine some parts of the body or observe potential injuries because they were burned to such a degree.
6. Further, it was submitted the photograph was relevant to the jury's assessment of incriminating conduct. It will be submitted in due course that the conduct of Young was so extreme that it could only be consistent with murder. In this context, the prosecution submitted the autopsy photograph was relevant to the extent of the damage he caused and demonstrated his attempts to remove any trace of McGuire in relation to his conduct.
7. Furthermore, it was submitted the prosecution is entitled to present evidence in support of its case, including pictorial representations, and was not confined to oral evidence. In this regard, while it was accepted that the photograph was somewhat confronting, it was submitted that it was not gratuitous and was not the most graphic of photographs that are often produced in murder trials. It was also submitted that it would be highly unusual for the jury not to see a single photograph from an autopsy in a murder trial.
8. Moreover, it was submitted the prejudice to Young was not unfair. The prosecution submitted it was taking a conservative approach and that the photograph assisted it in proving its case.
9. When specifically asked to identify how the photograph is relevant to causation, it was submitted the photograph was direct evidence of McGuire's death. When it was noted that it was not in issue that Young killed McGuire, that Young drove McGuire's car to a state forest with McGuire's body inside, and that Young was present while the car was ignited and McGuire was incinerated, it was submitted the prosecution still has to prove each element beyond reasonable doubt and that the other photographs in evidence were not very clear. In relation to photograph number 151, it was submitted there was ash and debris mixed in with McGuire's body, whereas the autopsy photograph gave a clear pictorial representation of what Dr Glengarry had examined.
10. The defence did not make any submissions on the question of relevance, but sought to have the photograph excluded pursuant to section 137 of the Evidence Act 2008 (Vic).[2]
    • B.4 Approach to be adopted concerning photographs of a deceased
11. There are a number of cases that have dealt with the question of whether or not graphic or gruesome photographs of a deceased in a murder trial ought to be excluded because of the danger that unfair prejudice will outweigh any probative value. Although most of the cases precede the Evidence Act, they remain relevant. I have reviewed them in assessing whether the photograph in question ought to be excluded under section 137 of the Evidence Act.[3]
12. In one such case, it was observed that the sensitivity of jurors to photographs can be too easily overstated.[4] This and other cases have acknowledged that in serious criminal trials, including murder trials, a degree of robustness should be extended in this regard.[5]
13. It has also been acknowledged that photographs, or even descriptions of the injuries, may be so gruesome that they would cloud a jury's understanding of the matter rather than assist them to evaluate the evidence with clinical detachment.[6]
14. Each photograph must be considered individually. Although some photographs may be relevant and ought not be excluded, if a particular photograph is of a shocking nature, the danger of unfair prejudice may require its exclusion notwithstanding it has some probative value.[7]
    • B.5 Ruling
15. Having considered the evidence already adduced and the other evidence to be led, the danger of unfair prejudice to Young outweighs the probative value of the autopsy photograph. It is particularly gruesome. That this is so is not gratuitous, but is reflective of the state of McGuire's remains. The photograph includes a compilation of small parts or fragments of her charred remains. Further, because of the level of incineration, the total weight of what remained was only 13 kilograms and internal parts of the body are graphically exposed. There can be little doubt that the image of a body in this state laid out on a tarpaulin would be shocking to most jurors.
16. Naturally, if the photograph were of high probative value then the shocking nature of the photograph would not mean it would necessarily be excluded. However, in light of the limited matters in issue and the other photographic and video evidence, its probative value is minimal.
17. This may be readily demonstrated. Without being exhaustive, the autopsy photograph is not capable of evidencing the nature of the injuries McGuire suffered or the cause of her death. In short, the photograph does not advance such matters at all. Further, it is of little, if any, probative value as circumstantial evidence of Young's state of mind at the time he killed McGuire given the other evidence that is already before the court. The photographs from the arson scene already prove the level to which McGuire's body was destroyed or depleted.
18. Furthermore, having read the report of Dr Glengarry, it is not necessary for this additional photograph to be before the jury in order for them to be able to properly understand her evidence concerning the autopsy she conducted or her findings.
19. Moreover, the photograph does not advance the prosecution's case concerning incriminating conduct any further. Again, there is a substantial body of evidence relevant to this issue, including the number of photographs at the crime scene, which means that this photograph is, relevantly, really just more of the same.
20. Accordingly, the autopsy photograph must be excluded.

1. The video of the crime scene
   • C.1 Details of the video

1. The further issue for determination is whether or not the audio of a video should be played to the jury. The video records when police were first in attendance after the burnt out vehicle had been found. In this shortened version, which goes for approximately 5 minutes, police can be heard to make various observations about what they saw or believed they saw at the time. These include an expletive, as well as them speculating and expressing uncertainty about what they were observing.
   • C.2 Submissions
2. The defence has no issue with the video being played before the jury, but objects to it being accompanied by the audio of what was said by the police officers in attendance.
3. The prosecution again referred to the fact that this is a murder trial and that there would necessarily be confronting matters put before the jury. It was submitted the audio was not prejudicial and that it was necessary to hear the audio because without it the footage did not necessarily make sense. It was submitted it was not clear what was happening without the audio, and that the audio provided context. It was noted that at times descriptions were given of things that could not be seen on the video itself. With respect to the expletive, it was acknowledged that could be edited out.
   • C.3 Ruling
4. Having viewed the video in its entirety both with and without the audio, it is apparent that the audio is of little probative value and adds nothing of real significance to the visual images. In short, the visual aspect of the video insofar as it shows what was found is the probative component of the evidence. In addition, as referred to above, there are already photographs before the jury illustrating what was found.
5. Further, the officers expressing inaccurate views of what did or did not remain of McGuire's body is unhelpful. While the prejudice should not be overstated, as it could not be described as high, these inaccuracies give rise to a danger of unfair prejudice that outweighs what little probative value the audio may provide.
6. Furthermore, in light of the fact that the video includes clear images of McGuire's body, the audio is not necessary for there to be a proper understanding of what was discovered. To the extent that it might be said by the prosecution that some aspects of it may be unclear without the audio, those parts of the video can be edited out.
7. Accordingly, the video may be played to the jury (either edited or unedited). However, for the reasons stated the audio must be excluded as whatever probative value it has is outweighed by the danger of unfair prejudice to Young.

[1] The defence took no issue with this, though has relied on the absence of various issues in seeking to have various pieces of evidence excluded: compare Director of Public Prosecutions v Hazelwood Pacific Pty Ltd & Ors (Ruling 3) [2019] VSC 872, [16]-[21], esp [17] (Keogh J), where some evidence of the admitted facts was likely to assist the jury to understand the issues it was required to decide, and Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374, 380-381 [14], [16], 397 [83]-[84] (Gummow, Crennan, Kiefel and Bell JJ), 406-407 [106]-[108] (Heydon J, dissenting), where the High Court allowed an appeal on the basis that similar fact evidence had been led on an issue which was not live in the trial.

[2] For a discussion on the operation of s 137, see Director of Public Prosecutions v Young (No 2) [2025] VSC 405, [93]-[104].

[3] R v Ramage [2024] VSC 391; R v Cliff [2018] NSWSC 78; R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489; Telford v R (1996) 86 A Crim R 427; R v Murdoch (1987) 37 A Crim R 118; R v O'Sullivan (1975) 13 SASR 68.

[4] R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489, 514 [156] (Wood CJ at CL, with whom Ireland and Kirby JJ agreed).

[5] Ibid; R v Cliff [2018] NSWSC 78, [13] (Campbell J).

[6] R v Murdoch (1987) 37 A Crim R 118, 127.4 (Street CJ, with whom Yeldham and Finlay JJ agreed).

[7] R v Ramage [2004] VSC 391, [125]-[130], esp at [127] (Osborn J).