Citation: R v Hawi & ors (No 5) [2011] NSWSC 1651
Court: Supreme Court of New South Wales
Date: 18 May 2011
Judge: R A Hulme J
Background
This decision arose from the criminal prosecution of twelve accused persons in connection with events at Sydney Airport on 22 March 2009, during which a fatal assault occurred. The accused included members of the Comanchero and Hells Angels motorcycle clubs who were present at the airport that day. The matter proceeded before a jury.
Before trial commenced, the Crown sought to tender a folder of exhibits for the jury, including twenty pages of photographs and biometric details relating to the twenty motorcycle club members present at the airport. The Crown also sought to include a PowerPoint presentation constructed from CCTV footage, designed to assist the jury in understanding the chronological sequence of events.
Several of the accused objected to the admissibility of particular photographs, principally post-arrest images showing their tattoos. The central dispute was whether those photographs were relevant to the issues at trial, and whether any probative value was outweighed by the risk of unfair prejudice to the accused.
Legal Issues
- Whether photographs of accused persons depicting tattoos were relevant to the issues at trial, particularly to eyewitness identification evidence
- Whether such photographs carried a risk of unfair prejudice sufficient to exclude them
- Whether a photograph of one accused (Potrus) used in the PowerPoint presentation was admissible
- Whether a photograph of another accused (Padovan) taken in prison clothing was admissible, and whether modifications to photographs could cure prejudice concerns
Decision
Hulme J resolved each objection by examining whether the contested photographs had probative value by reference to the Crown's anticipated evidence. Eyewitnesses to the events at the airport had described assailants by reference to features including height, build, appearance, and, critically, the presence and location of tattoos on arms, shoulders, and necks. The photographs of the accused taken after 22 March 2009 were found to be relevant because they allowed the jury to assess whether witness descriptions were consistent with, or could refer to, a particular accused. That assessment was at the heart of the identification issues in the trial.
On the prejudice question, the court considered each accused individually. Where an accused's tattoos were referenced in eyewitness accounts, or where the photographs assisted in evaluating a witness's reliability, the probative value was held to justify admission. The court acknowledged the argument that tattoos may attract adverse community attitudes, particularly in the context of an alleged senior member of a motorcycle club, but found that evolving community attitudes diminished this concern and that the relevance of the evidence was sufficiently strong. For one accused (Menzies), no objection was taken at all, including to a tattoo bearing the acronym "ACCA," explained as standing for "Always Comanchero, Comanchero Always."
Regarding the accused Potrus, the court treated the disputed image in the PowerPoint presentation as if it were a still photograph, since the jury could pause the recording on any individual frame. The image was an identifying photograph used to connect Potrus to a figure depicted in CCTV footage. The court found it was relevant for that identification purpose.
For the accused Padovan, the court was concerned about a photograph taken in prison clothing and about certain tattoos (including lettering reading "CRO-LEB" and a cross with text) that risked inviting impermissible reasoning about character. The Crown offered to modify the photographs by reducing their size to obscure that lettering and removing the problematic upper-arm image. On the assumption those modifications would be made, the court admitted the remaining photographs, finding no remaining danger of unfair prejudice.
Orders Made
• The photographs of Mr Padovan are admissible (upon the assumption that the modifications foreshadowed by the Crown will be made)
Key Takeaways
- Photographs depicting an accused's tattoos can be relevant in a criminal trial where eyewitness descriptions of a perpetrator include references to tattoos, enabling the jury to assess whether those descriptions are consistent with the accused's appearance.
- A court may treat a single frame of a PowerPoint or video presentation as equivalent to a still photograph when evaluating admissibility, given that a jury can pause the recording during deliberations.
- The risk of unfair prejudice from tattoo photographs does not automatically outweigh probative value, particularly where community attitudes toward tattoos have evolved; the court conducts an individual assessment for each accused and each photograph.
- Where particular photographs raise distinct prejudice concerns (such as images taken in prison clothing or depicting tattoos with inflammatory text), the Crown may address those concerns through modifications to the tendered exhibit, and the court may admit the modified version.
- Admissibility rulings of this kind are conducted on a voir dire (a pre-jury hearing to determine admissibility) to allow the compilation of jury materials to proceed before the substantive trial begins.
Legislation and Cases Referenced
No legislation or cases were cited in the provided text of this judgment.