Citation: [2018] NSWSC 211
Court: Supreme Court of NSW
Date: 14 February 2018
Judge(s): Harrison J
Background
Four accused faced criminal proceedings in the Supreme Court. During the trial, the Crown sought to tender two photographs depicting the tattooed torso of one of the accused, along with a close-up detail of the same tattoo. The photographs were said to have been forwarded as screenshots within a series of text messages exchanged between some of the accused in or around May 2015.
Counsel for the accused whose torso appeared in the photographs objected to their tender. The objections centred on relevance, unfair prejudice, and the risk that the photographs might give the jury a misleading impression of the accused's physique at the time of the alleged events.
Legal Issues
- Whether the photographs had sufficient relevance to be admitted into evidence
- Whether the probative value of the photographs was outweighed by a danger of unfair prejudice to the accused
- Whether the photographs risked giving the jury a misleading impression of the accused's physique at the relevant time
Decision
Issue 1: Relevance
Harrison J accepted that the photographs, viewed in isolation, had only marginal relevance. However, considered in conjunction with the proposed tender of the text messages, the photographs gained sufficient relevance to the subject matter of those messages (at [3]). The court noted that the photographs appeared to have been forwarded as screenshots within the messages themselves, making their content material to understanding what was being communicated (at [1]-[3]).
Issue 2: Unfair Prejudice
The court rejected the submission that the photographs would cause unfair prejudice. Harrison J observed that the tattoos were not offensive in scope or content, did not suggest a predisposition or propensity for violence or criminal conduct, and that parts of the tattoos were artistically rendered (at [5]). His Honour noted that concerns of this kind would carry more weight if the material contained overtly offensive imagery, suggestions of violence, or criminal themes to which a jury might react adversely (at [6]). In the absence of such content, no unfair prejudice attended the proposed tender (at [7]).
Issue 3: Misleading Impression of Physique
Counsel argued that the photographs, taken at a different time, might mislead the jury about the accused's physical appearance on the date of the relevant events in March 2015. Harrison J was not persuaded. The court reasoned that, over a period of approximately five to six months between April and September 2015, a person would not be likely to have changed significantly in body form or shape such that the photographs would create a misleading impression (at [11]).
Orders Made
- Photographs of the accused's tattoos are admissible.
Key Takeaways
- Photographs of limited standalone relevance may nonetheless be admissible where their relevance is substantially enhanced by the context of other evidence with which they are tendered, such as related text messages (at [3]).
- A risk of unfair prejudice from tattoo photographs is not established merely by speculation that a jury might react adversely; the concern gains force where the imagery is overtly offensive, depicts violence, or suggests criminal conduct (at [5]-[6]).
- Where tattoos are neither offensive nor indicative of a criminal disposition, a court may find that they carry no meaningful risk of unfair prejudice and may even create a neutral or favourable impression with jurors (at [5]).
- A photograph taken months after the relevant events does not automatically create a misleading impression of a person's physical appearance; absent evidence of significant bodily change, the temporal gap alone will not render the material inadmissible (at [11]).
- The court applied a balancing exercise between probative value and potential prejudice, confirming that the threshold for exclusion on prejudice grounds requires something more concrete than unspecified adverse speculation by a jury (at [4]-[7]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated