R (Cth) v Mohr (No. 3)

[2020] NSWSC 1939

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R (Cth) v Mohr (No. 3) [2020] NSWSC 1939
Hearing dates:	24 February 2020
Date of orders:	24 February 2020
Decision date:	24 February 2020
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Photographs of accused admitted into evidence
Catchwords:	CRIMINAL LAW – trial - conspiracy to import a commercial quantity of a border controlled drug – admissibility of photographs of the accused – question of potential unfair prejudice to the accused – s 137 Evidence Act – discretion to exclude – whether photograph of the accused “makes him look like a drug dealer” – whether admissions accused is prepared to make obviate necessity for tender – whether white area of hair suggests nickname “white stripe” – accused prepared to agree to agreed statement of facts – relevance of photographs in providing independent evidence.
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Principal judgment
Parties:	Regina (Crown) Darren Mohr (Accused)
Representation:	Counsel: M England/C McGorey (Crown) G Brady SC (Accused) Solicitors: Solicitor for Public Prosecutions (Cth) (Crown) McGirr Lawyers (Accused)
File Number(s):	2017/376756
Publication restriction:	Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

EX TEMPORE JUDGMENT (REVISED)

1. HER HONOUR: An issue has arisen in the trial of the accused on a charge of conspiracy to import a commercial quantity of a border controlled drug as to the admissibility of three photographs. The photographs are shown in exhibits VDH and VDJ.

2. VDH is an Extraction Report from the accused's mobile phone. It contains two of the photographs, at pages 14 and 16 respectively. Exhibit VDJ is a single photograph, the origin of which is not clear on the evidence, but which is said in any event to be immaterial to the question of the admissibility of the photograph.

3. Starting with the material in exhibit VDH, the Crown seeks to tender the photographs on the basis that they are capable of supporting the Crown's case that the accused at no stage intended to take employment on the Dalrymple, sailing, as she was due to do, around about 14 October 2016.

4. The first of the photographs, that on page 14, was taken on the afternoon of 14 October 2016, that is, on the very day on which the Dalrymple sailed, and only a matter of hours after the boat had left port in Sydney. It shows the accused and his then girlfriend attending a wedding of a family member of the accused's then girlfriend. The couple are shown in a happy smiling pose in front of some greenery, both dressed as one might expect for a wedding, that is, the accused in a suit and the young lady in a dress.

5. The second of the photographs was taken on 22 October 2016 at a time when the Dalrymple was at sea. It shows the accused dressed in a three-piece suit, apparently at a racecourse, consistent with an intercepted telephone conversation that the jury has already heard of the previous day, 21 October (page 532 of exhibit B), in the course of which the accused referred to the fact that he would be attending a buck's party at the races the following day.

6. The Crown, again, relies upon that photograph to evidence the accused's intention of being in Sydney and able to attend the buck's party, something which he could not have done had he sailed as a crew member on the Dalrymple.

7. The third of the images, exhibit VDJ, is a photograph of the accused seated at a table, showing the accused from the waist up. He is not wearing a shirt and very colourful tattoos are in evidence up and down both arms. The accused appears to be, as other witnesses have described, a person who exercises at a gym. He is wearing a Crucifix around his neck. There is an issue as to whether or not, on the accused's case in objecting to this material, that photograph “makes him look like a drug dealer”.

8. The Crown relies upon that photograph because, very clearly shown in it, on the top of the accused's head, is an area of white colouring in his hair. The Crown relies upon that to support its case that the accused's BlackBerry handle or name was “White Stripe”, as opposed to that which he has asserted it was through his cross-examination of a Crown witness, [REDACTED] “Three Stripes”.

9. Mr Brady of Senior Counsel takes issue with the admission into evidence of all three photographs.

10. Dealing firstly with photographs at pages 14 and 16 of exhibit VDH, Mr Brady says his client is prepared to concede or agree to an agreed statement of facts to the effect that he attended the wedding on 14 October 2016 and attended the buck's party on 22 October 2016, and there is no need for photographs to provide independent evidence of his attendance.

11. It is the accused's contention that the accused, as he appears in these photographs, might bear a resemblance to what some jury members might regard as the way a drug dealer looks. That is said to be the prejudice which attaches to those photographs, and it is argued that that prejudice outweighs the very slender probative worth of the photographs going to establish, as they do, something which is not in dispute.

12. The objection taken to exhibit VDJ similarly relies upon a concern that the accused, as he is depicted in this photograph, might be regarded by the jurors as looking like someone who deals in drugs, and therefore have an impermissible prejudicial effect. Again, the accused, it seems, is prepared to concede that he has a white area of discolouration, or absence of colouration, in his hair at about the top of his head.

13. The whole thing seems to me to be a storm in a tea cup. I can see the relevance of the material to the Crown, slight as it is given the concessions that the accused is prepared to make. With respect to photographs 14 and 16 of VDH, I have seen a lot of drug dealers and I wouldn't suggest that the accused in those photographs necessarily looks like one. At page 14, I see nothing in his appearance which is prejudicial or could be construed as being prejudicial. He simply looks like one half of a happy couple at some social event. I don't think his clothing is suggestive of him being a drug dealer or looking like a drug dealer.

14. Similarly, in the photograph at page 16, he is well dressed in a three-piece suit, with a collared shirt and tie. There is really nothing of note about his appearance, other than that he looks a little uncomfortable, which one might be if photographed with on what was probably a fairly warm day in a three-piece suit. I see nothing from which any jury could draw any impermissible conclusion. I don't think his clothing is in any way suggestive of the accused as necessarily or even possibly a drug dealer. He is simply well dressed in a three-piece suit for a social event.

15. Although the probative value is relatively limited bearing in mind the concession the accused is prepared to make, given that I can't see any impermissible prejudice, I don't believe that section 137 of the Evidence Act 1995 (NSW) is engaged and I would admit those two photographs. Their relevance is conceded.

16. The photograph in VDJ is of a different nature. Again, I have seen many drug dealers and all that is missing from this photograph to put the accused squarely in that category is either a python about his shoulders or a gun in his hands. It is entirely possible that a juror might look at this photograph and draw the conclusion that the accused looks every bit the drug dealer.

17. However, there is a middle ground available. I can see the Crown would legitimately want an image of this white-ish area of the hair in evidence. Again, the probative value is fairly slight in view of the concession that the accused is prepared to make, to the effect that he has this area on the top of his head. If, however, the photograph were to be cropped so that it was cut at a level of just under the accused's chin, enough would be removed from it that the look of what one might regard as the look of an obvious drug dealer would be removed. There would certainly be some evidence of tattooing to his shoulders remaining but, as the Crown has observed, we already have some photographs in evidence, albeit of the accused wearing a sleeved t-shirt, but certainly photographs that make clear he has very significant tattooing to his arms. It is not the tattooing per se that seems to me that would suggest to the jury that the accused is a drug dealer; it is the totality of the chunky jewellery, the tattooing and the body builder type physique, that is consistent with what a juror might consider a drug dealer looks like.

18. Cropped the photograph would not prejudice the accused; it will get the Crown the white spot that it requires in evidence for the jury to be able to look at, and I accept that there is value in a jury being able to see a picture of something of significance, as opposed to having a verbal description of it. That is the probative value of a cropped photograph; it is not outweighed by the prejudicial value, which I think would be removed by the editing.

19. On the basis that the photograph is edited as I have described, I would admit that photograph into evidence.

**********

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024