IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0142

DPP 	Crown	
		
v  		
		
DT	Accused	

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JUDGE:	Fox J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	27 March, 28 March, 10 April and 11 April 2024	
DATE OF RULING:	6 May 2024	
CASE MAY BE CITED AS:	DPP v DT (Ruling No 2)	
MEDIUM NEUTRAL CITATION:	[2024] VSC 345	1st revision: 19 June 2024
Para [4]	

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CRIMINAL LAW — Evidence — Child homicide — Application to exclude evidence of a ‘live’ photograph in which the accused utters the word ‘zombie’ — Relevance — Whether probative value of the evidence is outweighed by the danger of unfair prejudice — Evidence excluded — Evidence Act 2008 (Vic) ss 55, 56 & 137 — IMM v The Queen (2016) 257 CLR 300.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr M Gibson KC, with 
Mr E Dober	The Director of Public Prosecutions 	
			
For the Accused	Mr R Nathwani SC, with 
Ms L Thies	Furstenberg Law	

HER HONOUR:
Introduction
1	The accused is charged with child homicide.  It is alleged that on or about 29 November 2017 he killed his son, Oscar, who was aged 26 days at the time of his death.
2	Senior counsel on behalf of the accused applies to exclude evidence of a ‘live’ photograph taken of Oscar shortly before his death, in which the accused can be heard to say the word ‘zombie’.  The application is opposed.
3	I have given an earlier ruling in this matter which outlines the prosecution case.  I will not repeat that outline.  This ruling should be read together with my earlier ruling.
Brief overview
4	Oscar was the second child of the accused and MH.  At the relevant time, the couple were living in [redacted].  The prosecution case is that on the night of 27 November 2017, or in the very early hours of 28 November, the accused violently shook or assaulted Oscar in the bedroom while MH was in the kitchen.  He then carried Oscar into the kitchen and told MH that there was something wrong with Oscar and they needed to call an ambulance.  In the early hours of the morning of 28 November, Oscar was rushed to the Royal Children’s Hospital.  He did not survive.  
5	The defence at trial will be that the accused accidentally dropped Oscar.  It is anticipated that an expert witness, called by the defence, will state that it is reasonably possible for the constellation of injuries seen in this case to be the result of an accidental fall from a limited height, such as from a carer’s arms.  Thus, the accused admits causing Oscar’s death, but denies he assaulted, shook or otherwise physically abused his son.
The contested evidence
6	On 27 September 2018, a search warrant was executed at the home address of MH in [redacted] (the accused and MH had separated by this time, and MH remained in [redacted]).  An Apple iPhone 6 belonging to MH was seized and subsequently examined.  A ‘live’ photograph (‘photograph’) was found, taken at the Royal Children’s Hospital at 3:40am on 30 November 2017.  Oscar can be seen lying in a hospital bed, and the accused is heard to say ‘zombie’.  By this time, Oscar had been declared brain dead and was being kept viable to enable organ donation to occur.
7	It is common ground that the accused uttered the word ‘zombie’.  In argument, the prosecution conceded that they cannot say who took the photograph, or where MH was at the time the photograph was taken.  
8	The prosecution seek to lead the photograph for two purposes.  First, they argue it is a piece of circumstantial evidence that shows the accused’s antipathy or apathy to Oscar’s situation, making it more likely he assaulted Oscar on 28 November.  This is relevant to whether the accused’s actions were conscious, voluntary and deliberate.  Second, they submit the evidence rebuts or contradicts other evidence that the accused was distressed by the plight of his son while at the hospital.
Defence submissions
9	Senior counsel for the accused objects on the basis that the evidence is not relevant within the meaning of s 55 of the Evidence Act 2008 (Vic) (‘Act’) and therefore not admissible pursuant to s 56. Alternatively, if the evidence is relevant, it should be excluded pursuant to s 137.
10	Counsel for the accused argued that both the taking of the photograph and the zombie utterance are neutral as to any issue, and cannot rationally affect the assessment of any fact in issue in the trial. Counsel argued that the utterance has ‘zero context’, it is devoid of meaning and could mean ‘absolutely anything’. 
11	Counsel argued that the identity of the photographer is relevant, and the prosecution cannot establish who took the photograph.  It cannot be said that the accused intended to record himself, which further undermines its relevance. 
12	Counsel submitted the zombie utterance is not capable of rebutting distress.  Trauma affects different people differently.  At the time of the utterance, the accused had recently learned that his son was brain dead, and was being kept alive on life support so his liver could be harvested and donated.  A jury could not conclude that the accused was not distressed because, for one second in time, he uttered the word ‘zombie’ while a photograph was taken of his son.
13	Alternatively, counsel submitted that if the evidence is relevant, it should be excluded pursuant to s 137.  The probative value is extremely low.  There is a danger the jury will misuse the evidence as an implied admission, or reason that because the accused uttered the word zombie, he must have unlawfully assaulted his son.  
Prosecution submissions
14	The prosecution submitted that ‘zombie’ is a pejorative or derogatory word because it connotes a form of incapacity.  They conceded that people react differently in different situations.  However, senior counsel argued that it was an unusual word, and ‘zombie’ is the last thing you would expect a father to call his child in the circumstances.  
15	The prosecution submitted that the evidence of how the accused presented while at the hospital is not ‘all one way’.  Dr Wraight, a paediatrician who was involved in Oscar’s care, described Oscar’s parents as ‘appropriately distressed about our concerns for Oscar’s brain injury and his chance of survival’.  The zombie utterance rebuts this evidence of distress and presents a more balanced picture.
Legal principles
Relevance
16	Pursuant to s 55(1) of the Act:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
17	Section 55 sets a low threshold for the admission of evidence.  The evidence may be of weak probative value but relevant. The words, ‘if it were accepted’, require relevance to be determined on the assumption that the tribunal of fact will accept the evidence.  This excludes considerations of reliability or weight.  The test is one of logical relevance, and the challenged evidence must be looked at in the context of the acts alleged and matters in dispute. Common sense is to be used when deciding questions of relevance.
Section 137
18	Section 137 of the Act is expressed in terms of ‘an evaluative judgment mandating exclusion’.  That is, if the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, the court must refuse to admit the evidence. 
19	At least since the High Court’s decision in IMM it has been clear that, in assessing the probative value of evidence for the purposes of s 137, a trial judge is required to take that evidence at its highest — credibility and reliability must be assumed for the purposes of the s 137 assessment.  It is necessary to have regard to the whole of the evidence, not simply the piece of evidence under challenge, as the context in which evidence is tendered will impact its probative value.  
20	The fact that a piece of evidence has low or slight probative value does not of itself create a danger of unfair prejudice for the purposes of s 137.  Evidence ‘may be unfairly prejudicial to a party if there is a real risk that the evidence will be misused by the jury in some unfair way’.  That is, the evidence will provoke an irrational or emotional response in the jury; or be given more weight than it should be; or be misused in a manner that is logically unconnected with the issues in the case.  
21	When considering s 137, the final step is to determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice.  If it is, s 137 mandates the exclusion of the evidence.  In undertaking this balancing exercise, it is appropriate to have regard to any judicial warnings or directions that may be given to a jury, and whether they would remove or mitigate the danger of unfair prejudice.
Considerations
22	I have viewed the photograph.  It lasts one second, and a flash appears to go off.  The accused can be clearly heard to say ‘zombie’.  It is difficult to characterise his tone; it is certainly not aggressive, hostile or sinister.  It is better described as gentle; more like the tone an adult would use when talking to, or playing with, a very young child.
23	In my view, when considering the first purpose for which the prosecution seek to lead the evidence, the evidence is irrelevant.  It does not assist a jury to determine whether the accused deliberately shook or assaulted Oscar, or whether he dropped him.  The utterance lacks context and no safe conclusion can be drawn as to why the accused made the utterance, what he was thinking, how he was feeling or what he meant by it.  The jury would have to engage in a form of impermissible propensity reasoning, or treat the evidence as evidence of bad character, to use it in favour of the prosecution.  That is, they would have to reason that because the accused uttered the word ‘zombie’, he did not really like his son, and so is more likely to have harmed his son.  It is not the prosecution case that there were any prior existing difficulties, or malice, on the part of the accused towards Oscar.
24	Alternatively, the evidence is only relevant in the first way alleged by the prosecution if the jury impermissibly engage in incriminating conduct reasoning.  That is, by uttering the word ‘zombie’, the accused was impliedly admitting that he had deliberately harmed his son.  The prosecution, understandably, do not seek to rely on the utterance as an implied admission to anything.
25	The second way the prosecution seek to use the evidence is to rebut other evidence of distress.  In my view, the evidence is also not relevant for this purpose.  The utterance is logically incapable of rebutting or countering other evidence that the accused was appropriately distressed.  The utterance does not mean that the accused was not really distressed when he spoke with Dr Wraight earlier.  Nor does it follow that because he said zombie, the accused was no longer distressed. 
26	Alternatively, if the evidence is relevant, its probative value is very slight.  Whether and to what extent the accused was distressed while at the hospital is of little relevance in the trial.  The prosecution case is that this was an unplanned, spontaneous attack by the accused on his son.  In those circumstances, the accused’s distress is equally consistent with both the prosecution and defence cases.  
27	The danger of unfair prejudice is significant.  There is a real risk the evidence will provoke an irrational or emotional response, or be misused by the jury in a manner that is logically unconnected with the issues in the case.  Examples of the way it may be misused include speculating about what was meant in a way that is unfavourable to the accused; treating the evidence as an implied admission; or reasoning that the accused did not really like his son and was therefore more likely to have harmed Oscar.  
28	I have considered whether the identified prejudice could be ameliorated by judicial direction and reached the conclusion that it cannot be.  It must be assumed juries are robust, in the sense they are able to put out of their minds irrelevant and prejudicial matters, and focus on the evidence only.  It must also be assumed they obey judicial direction, including any direction as to how a piece of evidence may or may not be used. However, whilst it must be assumed a jury will obey judicial direction, there is a limit to what one can expect of juries.  
29	I consider the very slight probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. 
Conclusion
30	The application is granted and the evidence is excluded.