R v Hawi (No 5)
[2011] NSWSC 1651
•18 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: R v Hawi & ors (No 5) [2011] NSWSC 1651 Hearing dates: 16 May 2011 Decision date: 18 May 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Evidence admitted in part
Catchwords: CRIMINAL LAW - evidence - relevance - whether unfairly prejudicial - photographs of accused showing tattoos - photographs of one accused in prison clothing Category: Procedural and other rulings Parties: Regina
Mahmoud Hawi
Farres Abounader
Usama Potrus
Zoran Kisacanin
David PadovanRepresentation: Counsel:
Ms N Adams with Ms H Roberts (Crown)
Mr S Grant (Hawi)
Mr J Trevallion (Abounader)
Mr R Driels (Potrus)
Mr J Gordon (Kisacanin)
Mr A Conwell (Padovan)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Sid Hawach & Co (Hawi)
Archbold Legal (Abounader)
Barakat Lawyers (Potrus)
Elie Rahme & Associates (Kisacanin)
Nyman Gibson Stewart (Padovan)
File Number(s): 2009/50087
Judgment
HIS HONOUR: The Crown proposes to tender before the jury 20 pages, each containing photographs and other identifying information relating to the 12 Comanchero and 8 Hells Angels who were at Sydney Airport on 22 March 2009. Each page, insofar as they concern the seven accused, contain still photographs taken from CCTV footage at the airport, photographs taken at some time subsequent to 22 March 2009, and some "biometric details", that is, age, height and weight if known.
The Crown Prosecutor proposes to tender as an exhibit during her opening address a folder containing various maps, plans and photographs and it is proposed to include the 20 pages to which I have just referred. Objection is taken on behalf of some of the accused to the admissibility of some of the photographs and so it is appropriate to resolve such objection now so that the compilation of the jury folders may proceed.
Objection is also taken by Mr Driels, counsel for the accused Potrus, to a photograph of his client that is included in a PowerPoint presentation that the Crown proposes to tender. This is a series of still images taken from CCTV footage at the airport. It has various captions and labels designed to assist the jury to understand who and what is depicted. The PowerPoint presentation has been compiled from the footage from a number of CCTV cameras and the idea, as I understand it, is to provide such a compilation in a chronological order so that the jury can better understand the events which occurred in their proper sequence.
The image that Mr Driels is concern with is a head and shoulders, face to camera, photograph of Mr Potrus which has a line connecting it to a figure in a CCTV still that depicts seven men. The purpose appears to be to identify the figure indicated to be Mr Potrus and so there is the photograph with his name underneath it. I was acquainted with this by the Crown providing me with a printout of the PowerPoint presentation. It is not intended that the jury will be provided with this printout, but the Crown will tender a disc containing a recording of the presentation. I suppose, however, that when the jury replay this recording in the jury room, it will be open to them to stop or pause on particular slides in order to make a closer examination. For this reason it is appropriate to approach this issue as if what was being tendered was a still photograph of Mr Potrus.
If the subject of this judgment is of any relevance at a later time, I record that oral submissions were made by counsel on 11, 16 and 17 May 2011. Written submissions dated 13 May 2011 were also provided by the Crown Prosecutor. Exhibits on what I have called the "admissibility of photographs voir dire" are the 20 photographs of the Comanchero and Hells Angels members who were at the airport on 22 March 2009 (Exhibit A); the PowerPoint printout (Exhibit B) and statements by witnesses identified by the numbers 9 and 48 (Exhibit K1).
Before dealing with the objections taken on behalf of each accused it is useful to note the nature of descriptions given by some of the eyewitnesses. I have taken the following sample from the Crown's written submissions:
Witness 300 witnesses the fatal assault upon the deceased. He describes a man on the ground attempting to fend off his attackers. He describes a man assaulting him with a bollard as being: "Lebanese, 6'4", muscular, looked like steroid user, dark coloured short hair, long in back, tattoos on arms, dark coloured singlet and grey tracksuit pants."
Witness 3 was working at a check in counter when she saw two men running towards her. One, chasing another male, was muscular, tall, had a tattoo on right bicep.
Witness 77 saw a man assault [the deceased] with a silver stand. The male was: "6', big build, well built, middle eastern appearance, olive skin, short dark hair, coloured tattoos around both biceps, ripped tshirt, tracksuit pants, running shoes".
Witness 42 saw a male swing a bollard down on [the deceased] twice and describes him as follows: "very tall about 6'5"m olive skin, dark short shaved hair, short sleeved yellow coloured shirt, tattoos in blue/pink amongst darker colours, they were from elbow to shoulders, dark coloured track pants".
Witness 21 heard yelling coming from the economy check in, looked and saw men running towards doors, between check-in counters. One was wearing a dark grey singlet and had tattoos all down his arms.
It is also worthwhile noting that no objection was taken by senior counsel for the accused Menzies to the page concerning his client. It includes two photographs showing tattoos on his left and right lower arms and another photograph showing an "ACCA" tattoo on the front of his neck. Evidence elsewhere indicates that "ACCA" is an acronym for "Always Comanchero, Comanchero Always".
No objection was taken by senior counsel for the accused Eken to the page concerning his client either. The photographs do not depict any tattoos or any other matters of concern.
No counsel objected to the pages concerning the other Comanchero and Hells Angels members who were present at the airport. Photographs of Mr Costa show that he is heavily tattooed on both arms, his left shoulder and his left chest. Mr Aouli is shown wearing a long-sleeved shirt with sleeves rolled up with no visible tattoos. Mr La Rosa has both upper arms heavily tattooed. Tattoos on both arms and across the chest are shown in the photographs of Mr Pirini. There are tattoos extending down the length of SP's left arm as well as tattoos on the back of the neck and on the right upper arm. AL is shown to have discrete tattoos on both arms but they are not as extensive as others. Mr Ovalle has a heavily tattooed right upper arm but no visible tattoos elsewhere. Mr Peter Zervas has a tattoo of the words "Hells Angel" on his upper chest, a heavily tattooed left upper arm and chest, and a tattoo on his right forearm. There are no photographs, apart from CCTV still images, of the deceased and the Hells Angels members, Messrs Wainohu, Baker, Martin and Khoury
The accused Hawi
Mr Grant objected to some of the photographs on the page that concerns his client, Mr Hawi. No objection was taken to three photographs taken from CCTV footage. They show Mr Hawi standing or walking somewhere in the airport. The images are grainy and blurred but are sufficient to show that he was dressed in a white T shirt with black writing on the front and white long trousers.
The objection is concerned with three photographs that were taken on 6 April 2009. One photograph is a head and shoulders, face to camera image. An elaborate tattoo is apparent on his left shoulder/upper chest which continues up the left side of his neck. Another photograph, which is of his right arm, shows a tattoo on the upper arm. A photograph of his left side shows that the tattoo shown in the first photograph on the left neck and shoulder/upper chest in fact continues down his arm almost to the elbow. There is another tattoo on the left side of his abdomen.
The objection is based upon a contention that there is no probative value in the evidence concerning the appearance and location of tattoos on Mr Hawi's body. There emerged in the course of submissions something of a dispute as to whether any witness will give evidence of something being done by a person that the Crown alleges was Mr Hawi by the witness making reference to the person having, or not having, tattoos. I indicated to the Crown Prosecutor that in order for me to resolve this issue I would need to be provided with some detail as to the evidence that would give the question of Mr Hawi having tattoos some probative value. Written submissions dated 13 May 2011 were subsequently provided by the prosecutors.
Aside from the assertion that the evidence has no probative value, Mr Grant submitted that the evidence was unfairly prejudicial to his client. He submitted, "Some people don't like tattoos, and they form adverse views about people who do have tattoos" (T192.40). I indicated to him that community attitudes to tattoos appear to have evolved and that there are some popular and admired people these days who are heavily adorned with them. Mr Grant responded, "That may be the case, but we have somebody who is said to be the national president of the motorcycle club, heavily tattooed, all of those prejudices are reeking out in relation to it" (T193.1).
The written submissions of the Crown identify a number of ways in which the evidence of Mr Hawi's tattoos is relevant. The witness presently identified by the number 159 is expected to give evidence about the behaviour of a man on the flight from Melbourne to Sydney. The Crown says this man was Mr Hawi. The witness described the man's appearance as including that he was Middle Eastern, solid build, 20-30 years of age, about 5'10" tall, with short dark hair which was short on the sides but less so on top. That is certainly a description that the jury could find matches Mr Hawi. The witness described the man's clothing in similar terms to that which Mr Hawi was wearing, albeit with some discrepancies. Significantly for present purposes, the witness said that the man had tattoos across the back of his neck and was heavily tattooed on the right arm and across the shoulders. That is a description the jury might accept was of Mr Hawi, if it was prepared to accept that the witness was mistaken and that it was the left arm and shoulder that was heavily tattooed rather than the right.
The Crown referred to the evidence expected to be given by witness 41. She was seated near to Messrs Hawi, Menzies and Eken on the flight. She provided police with a sketch of the tattoo on the man seated in 44D which, on the Crown case, was Mr Hawi. The witness' description of the man was that he had short dark neat hair; he was 6 foot tall and had a "huge muscly build"; and there was a tattoo of swirls from his shoulder that went down his arm and filtered into his hand. The sketch, and the description, are each capable of being regarded by the jury as a likeness of Mr Hawi's left arm tattoo.
Witness 41 saw part of the gate 5 affray and observed the person who had been in seat 44D grab a man who the Crown asserts was Mr Padovan in a fashion that resulted in his t-shirt coming off. She later saw the same man near [Padovan] attempting to hold him on the ground. She described the fight between this man and [Padovan] to be the "main fight". The witness gave evidence at the committal hearing that she also saw the man from seat 44D punching [Padovan] (T 1352).
Witness 40 saw a man who the Crown alleges was Mr Hawi punch the president of the Hells Angels at the commencement of the Gate 5 affray. She described his physical features in a manner that could be regarded as being consistent with Mr Hawi. In addition, she said that he had a tattoo which was of diagonal lines that started on his right shoulder and went down to his bicep and ended at about the elbow. That could be regarded as an apt description of the tattoo on Mr Hawi's left arm. The witness said that the man had another tattoo on his left arm but she could not tell what it was. Mr Hawi has a tattoo on his other arm but it is less prominent.
Another witness to the Gate 5 affray, witness 217, saw two men approach and punch a third man who the Crown says was Mr Padovan. The description given of one of the men included that he had a tattoo on his neck, as Mr Hawi does.
Witness 92 described a man on the flight in terms capable of being regarded as consistent with Mr Hawi. The description included that he was "heavily tattooed". He described this man as "aggressive in demeanour". He later saw the same man after the affray and described him as "agitated and his clothing was tousled".
In a pre-trial disclosure notice, Mr Hawi's representatives indicated that their client denied exhibiting animosity towards Mr Wainohu on the flight. There is no dispute that he had words with Mr Wainohu at Gate 5 but he denies involvement in the affray. The evidence of the witnesses to which the Crown has referred, if accepted, is capable of proving the contrary.
The witnesses' evidence in part depends upon the correctness of their descriptions of the man they saw. Given that it includes reference to tattoos, evidence of the location and appearance of Mr Hawi's tattoos is relevant. In this day and age I very much doubt that having tattoos reflects badly upon a person's character. Even if it might in Mr Hawi's case, any danger of unfair prejudice does not outweigh the probative value of the evidence.
The submissions of Mr Grant that I have referred to above were made on 11 May. He made further submissions on the subject on 16 May. Mr Grant submitted that the events in the departure hall, and particularly the assault upon the deceased, are "what the trial is really about" (T276.16). He described what occurred at Gate 5 as "the side show of this trial" (T276.35). Mr Hawi is charged with affray concerning the latter and he denies any involvement in it. Whether or not it is a "side show", given the pre-trial disclosure denials, it remains a matter for the Crown to prove beyond reasonable doubt.
Mr Grant's submissions implicitly acknowledged that Mr Hawi's tattoos were relevant to the eyewitnesses' descriptions of events on the plane and at Gate 5 by saying that if the photographs were excluded, it would be incumbent upon the cross-examiner to be careful to avoid asking questions that would make the photographs relevant. Mr Grant then submitted that the written submissions for the Crown failed to identify any relevance of the tattoos to the descriptions of witnesses as to what occurred in the later incident in the departure hall.
Conclusion as to the photographs concerning the accused Hawi
In my view, the photographs of Mr Hawi's tattoos are clearly relevant, at least, in relation to events on the plane and at Gate 5. It is, therefore, unnecessary to explore their relevance in respect of events in the departure hall. The photographs are admissible.
The accused Abounader
In his submissions on 11 May 2011, Mr Trevallion, on behalf of the accused Abounader, indicated a possible objection to the page concerning his client. It has three rather blurred images from CCTV footage that are not objected to. Then there are four photographs taken on 3 July 2009 which show tattoos on Mr Abounader's right chest, back and each arm. Mr Trevallion indicated that he would speak with the Crown Prosecutor in order to see if there could be some resolution of his concerns (T195).
Subsequently, the Crown provided written submissions in which there was reference to the evidence of the witness identified by the number 301:
Witness 301 was watching the riot between gaps in the counters and saw a group of men fighting, and states "the man I remember was a pacific islander. He was the closest to me. The fight shifted through between the larger gap. The Pacific Islander I would describe as being 6 foot 2, muscular, thick set build, dark skin colour...and I believe there was an eagle tattoo. The tattoo was on either the upper portion of his chest or the upper portion of his back. He was twisting and turning, so I am not sure as to what side the tattoo was on. I do remember that the eagle tattoo had its wings outstretched." Mr Abounader has an eagle on his back (but is neither an Islander nor 6 foot 2).
Mr Trevallion's concerns had not been allayed by the time the issue was revisited on 16 May. The four photographs of Mr Abounader taken on 3 July 2009 depict (1) a head and upper chest, face to camera, image showing a tattoo on the left upper chest and portions of tattoos on each upper arm; (2) an image of Mr Abounader's back, showing the word "Comanchero", then above that an eagle with its wings fully outstretched, then above that, on the back of the neck, the letters "CMC"; (3) a side-on image of the left arm showing tattoos from shoulder to wrist; and (4) a side-on image of the right arm, also with tattoos from shoulder to wrist. What is depicted in the tattoos in images 1, 3 and 4 are extremely difficult to discern.
Concern was expressed about the word "Comanchero" on Mr Abounader's back. "It may lead the jury to believe that he is a more dedicated or more company man, if I can use that term, and therefore more likely to blindly follow what the others are doing or his club president or other more senior members are doing" (T265.50). I am not going to assume that jury members are stupid and irrational and so I reject that submission. I note, as well, that if there was any validity in this concern, it might also apply to the "CMC" on Mr Abounader's neck, but no objection was taken to that tattoo.
More to the point, Mr Trevallion submitted that no witness makes any reference to this particular tattoo and so it has no relevance. It was also asserted that Mr Abounader's instructions were that he did not have this tattoo on 22 March 2009 but that it had been acquired later.
The Crown Prosecutor agreed to modify the size of the photograph so that the word "Comanchero" is removed. The Crown maintained that all of the image of the tattoo of the eagle was admissible, regardless of whether there was evidence of Mr Abounader's shirt being removed, because of the description given by witness 301 and the fact that none of the other participants had such a tattoo. As to the submission that no witness saw Mr Abounader's shirt removed, the Crown Prosecutor submitted that the singlet that he was wearing was loose fitting and may well have moved with him during the course of the events.
As to the tattoos on Mr Abounader's arms, it was asserted that some of these had also been added after 22 March. However, it was conceded that both arms were heavily tattooed as at that date and no witness purported to identify Mr Abounader by reference to any particular tattoo on his arms. Mr Trevallion, however, then conceded that "the arms and front view is admissible" (T268.16) but maintained his objection to portions of the photograph of Mr Abounader's back.
The Crown Prosecutor submitted that the images of the tattoos on the arms were admissible because witness descriptions included various references to men with a white singlet and tattooed arms. Some were, the Crown says, a reference to Mr Hawi, notwithstanding that he was wearing a t-shirt with very short sleeves. So, the Crown submitted, it was important that the jury had images of Mr Abounader as well in order for them to determine whether such descriptions referred to Mr Hawi, Mr Abounader, or someone else.
As to the photograph of Mr Abounader's head and shoulders, face to camera, it was submitted for the Crown that, as in the case of Mr Potrus and Mr Kisacanin, it was important for the jury to be able to familiarise themselves with the facial appearance of the accused. Looking at the men in the dock in the courtroom might enable the jury to acquire a familiarity with their facial features over time, but providing such photographs would hasten that task and enable the jury to assess the eyewitness descriptions of participants in the events from an early stage of the trial.
Conclusion as to the photographs concerning the accused Abounader
In my view, all of the photographs of Mr Abounader are admissible, subject to modification of the photograph of his back that the Crown undertook to make.
It is not to the point whether witnesses actually describe a particular accused by reference to specific tattoos on his body. The fact that there is at least a description of one accused by reference to specific tattoos, coupled with the fact that there are other descriptions that make a more general reference to the presence, or the absence, of tattoos on a part of the person's body, makes it relevant for the jury to have photographs of each of the accused, and each of the other participants, in order that they may be able to distinguish between each man when they hear any such description given by a witness.
Further, it would be of no assistance, and perhaps misleading, if the jury were to have photographs of only some of the participants. It would be almost impossible for the jury to make a proper assessment of descriptions given by eyewitnesses if they were only able to make a comparison with the appearance of some, but not others, of the men who were present.
The same can be said in relation to the images of the facial appearance of Mr Abounader and the other participants. When witness descriptions include reference to some aspect of a person's facial appearance, such as the person's apparent racial origin, it will be of assistance to the jury to have an image of each of the 20 alleged participants to examine and compare. Being able to look at 7 out of the 20 alleged participants in the dock is no substitute for that.
The photographs of Mr Abounader, subject to the modification of that of his back, are admissible.
The accused Kisacanin
The page concerning Mr Kisacanin has three CCTV images of him at the airport which show him wearing a singlet top and shorts. Objection was taken by Mr Gordon to three photographs taken on 17 February 2010 of Mr Kisacanin wearing a green singlet and green shorts. The objection is not concerned with tattoos, none are visible, but to the fact that Mr Kisacanin is shown dressed in prison clothing. I do not know whether it is generally known in the community that prison clothing is green but there must be a possibility that a juror would be aware.
The Crown's response to that concern was to indicate that it would remove two of the photographs that show Mr Kisacanin wearing green shorts as well as a green singlet but leave in the photograph that shows the singlet but not the shorts.
Mr Gordon also submitted that there was an issue in the descriptions of eyewitnesses as to the colour of singlets. The CCTV stills of Mr Kisacanin do not clearly depict the colour of his singlet because of the poor quality of the images. Mr Gordon took me to the statements of two of the eyewitnesses (Exhibit K1). The witness identified by the number 9 provided a description of a participant which included that the man was wearing a khaki coloured singlet. Witness 48 described a man wearing "a short dark green/khaki coloured T-shirt". As I understood the submission, it seems that these witnesses were not describing a man who the Crown contends is Mr Kisacanin. However, given the description of the colour of the man's (or the men's) upper garment, a photograph of Mr Kisacanin wearing a green singlet would be "an invitation to speculate ... dangerous ... and prejudicial rather than probative" (T281.38).
The Crown Prosecutor indicated, however, that it is proposed to tender the singlet that was worn by Mr Kisacanin at the airport and so the colour of the singlet that he was wearing will be well known to the jury. She informed me that the singlet is dark grey. For that reason there would be nothing misleading about the singlet he was wearing when the subsequent photographs were taken.
It was also submitted by Mr Gordon that no witness purports to identify someone who the Crown asserts is Mr Kisacanin by facial features and therefore the image of his upper body and face has no relevance. It was also submitted that Mr Kisacanin's facial appearance was different as between 22 March 2009 and 17 February 2010.
Conclusion as to the photographs concerning the accused Kisacanin
The appearance of Mr Kisacanin, including his face and, in his case, the absence of tattoos, is a relevant matter for the jury to take into account in the assessment of descriptions given by eyewitnesses for the same reasons I have indicated in relation to the appearance of Mr Abounader. If Mr Kisacanin's facial appearance changed between 22 March 2009 and 17 February 2010, it would only be in respect of facial hair. Any such differences can be pointed out to the jury. I cannot imagine the jury assuming that Mr Kisacanin's facial hair as shown in the later photographs must have been exactly as it was on 22 March 2009 in any event.
I am not persuaded that the probative value of the evidence of the photograph of Mr Kisacanin which shows him wearing a green singlet, but does not show his shorts, is outweighed by a danger of unfair prejudice. There is a possibility, and it can be put no higher than that, that the jury will think that the photograph was taken while Mr Kisacanin was in custody. That would hardly come as a surprise in the case of a person charged with murder, riot and affray. I am not prepared to assume that the jury will act irrationally and be influenced in deciding the case concerning Mr Kisacanin by this fact. If Mr Gordon wishes me to give the jury any direction about this I will consider doing so.
The Crown's proposal to tender the actual singlet that Mr Kisacanin was wearing at the airport will remove any possibility that the jury will be misled about its colour and so I reject the submission that there is unfair prejudice for this reason.
The photograph of Mr Kisacanin taken on 17 February 2010 showing him wearing a singlet but not showing his shorts is admissible.
The accused Potrus
Mr Driels objected on behalf of the accused Potrus, not to the rather blurred CCTV images of him but to three photographs of him taken on 16 October 2009. One shows simply his head and neck, face to camera. Mr Driels submitted that the jury will be able to see Mr Potrus in the dock and so this photograph has no probative value. The same submission applies to the head and shoulders, face to camera, photograph of Mr Potrus that is included in the PowerPoint presentation.
Objection was also taken to the other two photographs on the page concerning Mr Potrus. One shows the right upper arm, shoulder and chest which are covered by a tattoo. The other provides a side-on view of the right arm with a view of that aspect of the same tattoo. Mr Driels submitted that the photographs were taken on 16 October 2009 and there was no evidence that the tattoos had the same appearance, or were even there, seven months earlier.
The Crown Prosecutor obtained further instructions and ascertained that Mr Potrus did have a tattoo on his shoulder on 22 March 2009 but subsequently had it enlarged. Accordingly, it would be misleading to place before the jury photographs of the enlarged tattoo.
I understand Mr Driels submission also to have been that as it is not asserted that any witness identifies a person who the Crown says is Mr Potrus by way of tattoo, any photograph of tattoos, even if accurately depicting the tattoos that he had on 22 March 2009 would not be relevant.
Conclusion as to the photographs concerning the accused Potrus
For the same reasons as I have indicated previously, any photograph that accurately depicts the appearance of Mr Potrus on 22 March 2009 is relevant so as to permit the jury to consider the descriptions of witnesses and determine for themselves whether the descriptions do, or do not, apply to a particular participant in the events in the departure hall.
There is nothing prejudicial about the head and shoulders, face to camera, photograph of Mr Potrus. It was taken some 7 months later but, as with Mr Kisacanin, any change in his appearance would be confined to hairstyle and facial hair and that can be pointed out to the jury. In any event, as with Mr Kisacanin, I cannot imagine the jury assuming that Mr Potrus' hair, and facial hair, as shown in the photograph of 16 October 2009 would be identical to how they were on 22 March 2009.
The photographs of Mr Potrus showing head and shoulders, face to camera, in the single page of photographs, and in the PowerPoint presentation, are admissible.
The two photographs showing his tattoos that are presently on the single page are not admissible because they do not depict their appearance on 22 March 2009.
The accused Padovan
Mr Conwell objected to some of the photographs of Mr Padovan. There are two images from the CCTV footage which are not at all clear. One of them shows Mr Padovan walking with his right hand raised to about waist height and he appears to be looking at the back of his hand. Mr Conwell was concerned that the jury could misuse this photograph by inferring that Mr Padovan had recently punched something. He submitted that this image was not fairly representative of the entirety of the CCTV footage. I understand that the Crown is agreeable to substituting another still image from the CCTV footage that does not depict Mr Padovan in this pose. I will assume that will be done and so this aspect of Mr Conwell's objection need not be considered further.
There are three photographs of Mr Padovan taken on 7 July 2009. Objection is taken to two of them which show tattoos on the left chest, both upper arms and the left forearm. Mr Conwell submitted that they have no probative value. Mr Padovan lost his shirt in the events which occurred near Gate 5 and Mr Conwell said that there would be repeated references in the eyewitness evidence to "the man without a shirt". In other words, he is identified without reference to his tattoos.
A further dimension to Mr Conwell's objection was the nature of some of the tattoos. On the left chest are the letters: "CRO-LEB". He informed me that this was a reference to Mr Padovan's parentage, being Croation and Lebanese. Mr Conwell was concerned that this tattoo might be misinterpreted by the jury to be a reference to Cronulla and people of Lebanese origin, with reference to violent conduct that occurred at Cronulla in December 2005 involving people of Lebanese extraction. A tattoo on Mr Padovan's left upper arm has some lettering, the meaning of which eludes me, above and below a cross. Mr Conwell informed me that it was some benign religious phrase but was concerned that this "could be played with by the jury as well" (T199.15).
Mr Conwell did not have objection to the jury being informed in some fashion of the existence and location of Mr Padovan's tattoos. His concern about prejudice was confined to the lettering that might be misinterpreted. I raised with Mr Conwell the possibility that if the lettering in the tattoos was benign, the jury could simply be told that so that they would avoid any prejudicial speculation about the meaning. He accepted that this was a possibility but submitted that there was no probative value in the appearance of the tattoos in the first place because no witness, to his knowledge, identified the person who the Crown says was Mr Padovan by way of the appearance of his tattoos.
In further submissions on the topic, Mr Conwell added a concern about the photograph of Mr Padovan's arms and chest. Among the tattoos that can be seen is one on the lower left arm. It is extremely difficult to make out what is depicted, but Mr Conwell informed me that inside a large red diamond (that much is discernible) there is a "1%".
There is a reference to "1%" in the statement of Sergeant Ian Frater of 9 September 2009 that was tendered before me when the admissibility of evidence concerning the structure and organisation of the Comanchero motorcycle club was being determined. It, apparently, is a tag traditionally used by "outlaw motorcycle gangs" as an indication of a non-conformist attitude of a group who regards itself as being outside of mainstream society.
The Crown submitted that the images showing Mr Padovan's tattoos were relevant. It was relevant generally in showing the appearance of all participants to enable the jury to assess descriptions given by eyewitnesses. It also had specific relevance in relation to a particular witness who described a person who the Crown says was Mr Padovan: "It's clearly him and in her statement (she) says he had no tattoos" (T275.42). The Crown Prosecutor submitted that it was appropriate that photographic depiction of Mr Padovan's tattoos should be before the jury "in order to assess whether that witness is a reliable witness or whether perhaps it's understandable given the position of his tattoos that she did not see him or otherwise describe him as having tattoos" (T275.46).
The Crown indicated that it was prepared to reduce the size of the "arms & chest" photograph of Mr Padovan so that the lettering on the left chest, "CRO-LEB" was not legible and to remove the "left upper arm" photograph which shows the tattoo of the cross with some lettering. I will consider the matter on the assumption that this will be done.
Conclusion concerning the photographs of the accused Padovan
Upon the assumption that the modifications foreshadowed by the Crown will be made, I am satisfied that the photographs of Mr Padovan are relevant. As with others, they are relevant to enable the jury to have a clearer understanding of his appearance, including his tattoos, so as to enable jurors to assess the descriptions given by eyewitnesses and determine, if possible, whether descriptions are, or are not, a possible reference to Mr Padovan. I cannot see any danger of unfair prejudice.
The photographs of Mr Padovan are admissible.
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Decision last updated: 09 February 2012
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