Citation: R v Wayne Rodney SCHNEIDER (No 4) [2010] NSWDC 10
Court: District Court of New South Wales
Date: 11 February 2010
Judge(s): Berman SC DCJ
Background
The accused faced criminal charges before the District Court. The Crown alleged that the accused had been present at a venue called the Sapphire Club on 11 February 2006, and that his lower arms had been visible at the time of the offence.
After that date, the accused altered tattoos on his arms. The Crown sought to lead this alteration as evidence of consciousness of guilt, arguing that a jury could infer the accused changed the tattoos because he knew his arms had been visible and could be identified.
Before the jury was empanelled, the court was asked to rule on whether this evidence was admissible.
Legal Issues
- Whether evidence of the accused's post-offence alteration of his tattoos was admissible as consciousness of guilt evidence.
- Whether the probative value of that evidence outweighed the risk of unfair prejudice to the accused.
- Whether the accused would be compelled, in rebutting the Crown's case, to disclose potentially prejudicial information about his association with motorcycle clubs.
Decision
The court ruled the evidence admissible, being satisfied that its probative value outweighed the risk of unfair prejudice.
On probative value, the court found the inference available to a jury was clear: the accused appeared on video footage in a short-sleeved shirt, his lower arms were therefore visible during the alleged offence, and the subsequent alteration of arm tattoos could support an inference of consciousness of guilt. The court noted the accused would not have known what descriptions witnesses had given of his tattoos, which added weight to that inference.
On prejudice, the accused's counsel argued that rebutting the Crown's case would require the accused to reveal his past membership of the Lone Wolf motorcycle club and his desire to join the Hell's Angels. The court rejected this as a compelling prejudice concern, finding it unnecessary for the accused to disclose those details in order to effectively rebut the Crown's consciousness of guilt submission. The court also observed that the Lone Wolf club, unlike some other motorcycle organisations, had not been the subject of significant adverse publicity.
Other prejudice arguments were also dismissed. The court rejected the suggestion that a jury would infer from the duration of the tattooing process that the accused had been evading police, describing that reasoning as requiring too many speculative inferential steps. The court also noted that tattoos are now commonplace and carry no inherent implication of bad character.
Orders Made
- The evidence of the alteration of the accused's tattoos was admitted.
Key Takeaways
- Evidence of post-offence conduct is capable of supporting a consciousness of guilt inference where the surrounding circumstances make that inference reasonably available to a jury.
- The probative value versus unfair prejudice balancing exercise required the District Court to assess not only the strength of the Crown's inference, but also whether any prejudice to the accused was truly unavoidable or merely theoretical.
- Where a defendant has an innocent explanation for the conduct in question, that explanation goes to weight rather than admissibility; it does not deprive the evidence of its probative force.
- The court found that an accused is not necessarily required to disclose all surrounding circumstances when rebutting a consciousness of guilt inference; the adequacy of a more limited rebuttal is relevant to the prejudice assessment.
- Speculation that a jury might draw multiple unsupported secondary inferences from a piece of evidence did not, without more, constitute the kind of unfair prejudice capable of excluding otherwise probative evidence.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.