Citation: R v Abdallah (No. 5) [2014] NSWSC 233
Court: Supreme Court of New South Wales
Date: 13 March 2014
Judge(s): Campbell J
Background
The accused was charged with murder and other firearms offences. Identification was not in dispute: he admitted to being the person who shot the deceased and pursued another individual while discharging a firearm. His defence was self-defence, and in relation to the pursuit, he argued he was firing to warn rather than to shoot.
Multiple eyewitnesses gave evidence about the shooting. Several described the shooter as heavily tattooed, with one witness describing him in a triple-zero call as "covered with all sorts of tattoos". The accused was, in fact, extensively tattooed across approximately 75 per cent of his upper body.
The Crown sought to tender six forensic photographs of the accused, taken lawfully under the Crimes (Forensic Procedures) Act 2000 (NSW), showing his torso, neck and right arm in detail. The photographs had been taken specifically to record the extent and nature of his tattoos.
Legal Issues
- Whether the photographs were relevant, given that identification of the accused as the gunman was not in dispute
- Whether tendering the photographs to bolster eyewitness credibility offended the credibility rule under s 102 of the Evidence Act 1995 (NSW)
- Whether, if relevant, the probative value of the photographs was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
Decision
Issue 1: Relevance and the credibility rule
The Crown's stated purpose for tendering the photographs was circumstantial: to demonstrate that eyewitnesses were close enough to observe the accused's tattoos, and therefore to support the reliability of their accounts. Campbell J rejected this reasoning. Because identification was not in dispute, the photographs could not rationally affect the probability of any fact in issue in the proceedings.
The vagueness of the eyewitness descriptions was central to this conclusion. None of the witnesses described the content or detail of the tattoos; they spoke only in general terms, such as "heavily tattooed" or a "tattooed sleeve". The photographs of intricate, detailed tattooing across 75 per cent of the accused's body added nothing capable of supporting that vague testimony, and there was no applicable exception to the credibility rule under s 102 that would permit their admission for that purpose.
Issue 2: Unfair prejudice under s 137
Although the tender was refused on relevance grounds, Campbell J addressed the s 137 question in obiter remarks (observations made in passing, not forming part of the binding decision). He accepted the Crown's submission that extensive tattooing is now sufficiently common that, with appropriate directions, a jury would be unlikely to reason irrationally that a heavily tattooed person is the type to commit murder. Even so, he noted that the photographs' probative value was, in his assessment, very slight, meaning that even a modest danger of unfair prejudice would have been sufficient to outweigh it.
Orders Made
- Tender of Exhibit VD2 (the forensic photographs) rejected
Key Takeaways
- Where identification is not in dispute at trial, photographic evidence of a defendant's physical characteristics may lack the relevance necessary for admission, even if offered to support eyewitness reliability.
- The credibility rule in s 102 of the Evidence Act 1995 (NSW) limits the use of evidence tendered to bolster a witness's account, and no applicable exception existed on these facts to permit the photographs' admission for that purpose.
- Vague eyewitness descriptions of an observable characteristic, without any detail about content, are unlikely to be capable of "rational support" from highly detailed photographic evidence of that characteristic.
- In obiter, Campbell J indicated that the mere fact of extensive tattooing would not, with proper directions, lead a modern jury to reason irrationally to guilt, given how common tattooing has become as a fashion.
- Under s 137, where evidence carries only slight probative value, a relatively modest risk of unfair prejudice may still be sufficient to tip the balance in favour of exclusion.
Legislation and Cases Referenced
Legislation
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Evidence Act 1995 (NSW) ss 102, 136, 137
Cases
- Not stated