R v Cairney (No 9)

File Number(s): 2022/381365

Publication restriction: Nil.

EX TEMPORE JUDGMENT (REVISED)

1. I am asked to rule on the admissibility of photograph number 41 (the photograph) of a collection of 227 crime scene photographs. It has been admitted on the voir dire as Exhibit ‘KK’.

2. Ms Climo, learned counsel for the defence, submits that the photograph is not relevant because it does not tend to prove, whether directly or indirectly, any primary fact in dispute. Counsel further submits it is not relevant to the extent it proves factors which may be relevant to any disputed primary fact, such as where property of the deceased was deposited after he was stabbed. Those factors, to the extent they are relevant, can be proved by other means.

3. Ms Climo submits that the blood staining depicted in the photograph on the rear side panel above the rear wheel of the white utility vehicle parked opposite Turner Esplanade is likely to be prejudicial inasmuch as the jury may recoil from the apparent amount of blood staining depicted. Counsel also says that the photograph is misleading insofar as what it shows is the spread of a pool of blood which had been deposited on the cover over the tray of the utility vehicle which then overflowed down the side of the vehicle during rain which later fell.

4. The Crown Prosecutor submits that the photograph is relevant to the facts in issue. In particular, the Crown submits that the location of the clothing and the backpack of the deceased where he collapsed after exiting the backyard of Turner Esplanade is relevant to the issue of whether he was armed.

5. There will be evidence, I apprehend from previous rulings, that demonstrate that, when the deceased entered the backyard of the premises on the fatal occasion, his hands were empty. And an inspection of Mr Smith’s clothing, which were removed during the effort to resuscitate him, and I infer that his backpack which he was carrying at the time in its final location in the immediate aftermath, goes to the Crown case that he had no weapon on or about his person at least when he emerged from the backyard. That certainly is a central fact going to the question of self-defence.

6. It is well-established that the Crown is entitled to prove facts which provide a full narrative of the events, whether or not every element of the offence charged is in issue.

7. Moreover, I accept the Crown argument as to the relevance of the photograph, in particular, the markers. With respect, in terms of the basic question of relevance, it does not seem to me to be a reason to exclude evidence that there may be other ways of proving the same facts.

8. So far as the question of bloodstaining is concerned, I am not of the view that it is either misleading or prejudicial. To the extent that what is shown or depicted in the photograph indicates an overflow of rain-diluted blood from the cover, that can be explained to the jury either by way of an agreed fact or by evidence from a relevant crime scene officer.

9. So far as prejudice is concerned, the jury are going to see a lot of photographs of blood. It would seem to me to be very unlikely that a jury of mature adults empanelled to try a murder case would draw any adverse inference in respect of the accused merely from photographs depicting blood when a stabbing is involved. And in any event, to the extent to which that may be a risk, that can easily be covered, in my opinion, by a very simple direction reminding the jury of the direction they have already been given, as it happens, twice in this case, not to be motivated by sympathy or prejudice, perhaps even expanded upon or amplified somewhat to include specific reference to bloodstain evidence.

10. I will not exclude the photograph.

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