R v Bentley; R v Davies; R v Thomas; R v Tilley
[2018] NSWSC 211
•14 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 211 Hearing dates: 14 February 2018 Date of orders: 14 February 2018 Decision date: 14 February 2018 Jurisdiction: Common Law Before: Harrison J Decision: Photographs of accused’s tattoos are admissible
Catchwords: EVIDENCE – relevance – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – photographs of tattoo on accused’s torso – where tattoo is not offensive and does not show a predisposition to violence Category: Procedural and other rulings Parties: Regina (Crown)
Mitchell James Bentley (Accused)
Jack Davies (Accused)
William Patrick Thomas (Accused)
Jamie Michael Tilley (Accused)Representation: Counsel:
Solicitors:
D Scully (Crown)
J Trevallion (Accused Bentley)
P D Young SC (Accused Davies)
N Carroll (Accused Thomas)
J Stratton SC (Accused Tilley)
Director of Public Prosecutions (Crown)
Gregory J Goold Solicitor (Accused Bentley)
RHA Law (Accused Davies)
Matouk Joyner Lawyers (Accused Thomas)
Voros Lawyers (Accused Tilley)
File Number(s): 2015/258433 (Bentley); 2015/258493 (Davies); 2015/258448 (Thomas); 2015/258462 (Tilley) Publication restriction: Nil
EX TEMPORE Judgment
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HIS HONOUR: The Crown has foreshadowed a proposal to tender two photographs. The first is a photograph of the tattooed torso of Mr Bentley; the second is said to be a detail in a different context of the same tattoo in larger scale. The proposal to tender these photographs is in the context of what the Crown will in due course assert is the subject matter of a series of text messages passing between some of the accused in May of 2015 or thereabouts.
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It is the Crown's contention that the subject matter of the text messages remains in doubt if the content of the photographs, apparently forwarded by screen shot, is not laid clearly before the jury. Mr Trevallion objects to the tender of this material upon the basis that it has little, if any, relevance.
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Standing alone, the relevance, on one view, may be marginal. In the context of the proposal to tender the text messages, however, it gains a relevance to the significance of which in due course no doubt the jury's attention will be directed.
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Mr Trevallion maintains as well, without conceding the relevance of the material, that it is unfairly prejudicial. He maintains that by reason of the nature of the tattoos, the jury may unfairly speculate about the meaning or effect of the tattoos, and more particularly, take a prejudicial view in some unspecified way against Mr Bentley in particular, or the accused in general.
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Whilst I understand that submission in general terms, the tattoos on Mr Bentley's torso are not offensive, either in their scope or content. They do not bespeak a predisposition or propensity for violence or criminal conduct. At one end of the spectrum, parts of them are quite artistic, and for all I know may create a favourable impression with a hypothetical juror.
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Mr Trevallion's concerns would in my opinion be otherwise if the material in terms contained offensive material, or the suggestion of violence or criminal activity, or some other theme to which the jury might revert in a pejorative way.
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In my view the material has limited relevance, but there is no unfair prejudice attending the proposed tender, and I propose to allow it.
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Mr Trevallion argues, further, that the photograph of Mr Bentley's torso is capable of giving a misleading impression of his actual physique at the time of the events that give rise to these proceedings.
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As I understand it, there may be an issue raised by the accused or one or some of them in due course that at least tangentially highlights the significance of Mr Bentley’s physique or that of the other accused.
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If this photograph were capable of misleading the jury about Mr Bentley's actual physique at 31 March 2015, Mr Trevallion submits that there could be a prejudice that would create an unfairness in the circumstances.
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Doing the best I can, whilst I understand that argument in general terms, it does not seem to me, in the space of the period between approximately 1 April 2015 and sometime in September of the same year, that Mr Bentley or anyone in his position would have been likely significantly to have changed body form or shape in a way that could make the impression given by the proposed photograph a misleading impression. For those additional reasons I consider that the material is admissible.
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Decision last updated: 24 October 2019
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