New South Wales District Court CITATION: R v Wayne Rodney SCHNEIDER (No 4) [2010] NSWDC 10 HEARING DATE(S): 11 February 2010 JUDGMENT DATE: 11 February 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: Evidence to be admitted CATCHWORDS: CRIMINAL LAW - Judgment - Admissibility of evidence - Consciousness of guilt - Tattoos altered after date of offence PARTIES: The Crown Wayne Rodney Schneider FILE NUMBER(S): DC 2009/8191 COUNSEL: Ms T Smith - Crown Mr Heliotis QC, Mr A Djemal - Defendant SOLICITORS: Director of Public Prosecutions Galloways - Defendant JUDGMENT 1 HIS HONOUR: The final ruling I need to make before the trial can commence before a jury, concerns the admissibility of some evidence to the effect that the accused has changed the tattoos he had on his arms after 11 February 2006. The Crown wishes to rely on that evidence as demonstrating a consciousness of guilt, the Crown suggesting that the jury are entitled to find that the accused changed his tattoos because he knew that he was guilty of the crime and because he knew that his lower arms were exposed at the time he committed the crime. 2 Evidence was called today from the tattooist who altered the accused's tattoos. If accepted that would tend to suggest that the plan to change them had been in place before the offence. Thus if accepted that consciousness of guilt submission falls away completely. However, it is not for me to decide whether Mr Davies was telling the truth or whether Mr Davies was accurate or not. That is, if the evidence is admitted, a matter for the jury. However I will simply say at this stage that it does appear that if Mr Davies comes up to proof there will be no harm (beyond possible prejudice of course) to the accused at all through the admission of the evidence because he will have a complete explanation for the change in tattoos. But of course the probative value of the evidence is obvious. The accused was, according to video footage, in a short sleeved shirt. The accused would not have known what descriptions were given of the tattoos by witnesses and so the jury could conclude that his actions in changing the tattoos after the offence resulted from a consciousness of guilt. 3 Of course simply saying the evidence is probative is not enough to have the evidence admitted, instead I have to compare the probative value of the evidence with the risk of unfair prejudice. The particular prejudice which has caused me some concern relates to the reason advanced by Mr Schneider for him having the tattoos changed. I will have to explain a bit what I mean. One of the tattoos on one of his upper arms was put there as a result of his membership with a motorcycle group called the Lone Wolf motorcycle club. He left that organisation, in somewhat acrimonious circumstance he says, and was seeking to join another motorcycle group, the Hell's Angels. His evidence was that he could not become a member of the Hell's Angels while he still had the insignia of another motorcycle club tattooed upon him. He says therefore he went to the tattooist and made arrangements for changes to be made. He also said that he had on his other arm, the word "corruption" in old English lettering which was put there when he and a number of other men, when they were younger, thought it would be a good idea, a decision he later regretted. He finally says that he has also on his arms now the insignia of the Hell's Angels motor cycle group. 4 Thus it is put by Mr Heliotis that in order to rebut the suggestion made by the Crown, the accused would have to identify himself as a former member of the Lone Wolf motor cycle club and a person who wanted to join the Hell's Angels. In my view it is not necessary for the accused to go into that detail in order to effectively rebut the evidence advanced by the Crown. Even if he did refer to his former membership of the Lone Wolf motorcycle group it is significant that his membership of that organisation has come to an end. I also have to rely on my own experience here. As far as I am aware, there has not been any publicity let alone significant publicity to the Lone Wolf motorcycle group being involved in any crime such as those attributed to other motorcycle groups such as the Nomads and the Bandidos. 5 I further, do not see that it is necessary for the accused to explain that he wanted to get the Lone Wolf tattoo covered up because he wanted to join the Hell's Angels. Also in this regard it is important to understand that the alteration which covered up the Lone Wolf insignia caused the tattoo to extend further down one of his arms and in circumstances where it is the lower arms that were exposed the Crown might be able to advance the argument that it is one thing to get the upper arm tattoo changed but to extend it significantly further down the arm is another matter indeed. 6 Mr Heliotis also said that there is a risk that the admission of this evidence would enable the Crown to rebut some aspects of what the accused was saying by introducing evidence that the accused had absconded for a significant period of time. It is enough for me to deal with that argument by saying that the Crown has indicated that she would not do so. 7 Mr Heliotis also says that it is prejudicial to his client because he needs to demonstrate that there are other men with tattoos present at the Sapphire Club on the relevant night. Despite many attempts I just was not able ever to understand what it was that made the change in Mr Schneider's tattoos relevant to an increased prejudice relating to the fact that other men had tattoos. I would have thought that the fact that other men had tattoos was relevant and would be the subject of evidence from the accused if the Crown did not adduce it, whether or not Mr Schneider had changed his tattoos in any way whatsoever. 8 The Crown makes the point that what has been altered is the visible parts of the arm with colour being introduced. As I have said there may be innocent explanations for that and the accused may be able to advance it, but that does not mean that the evidence loses all of its probative force. 9 Finally Mr Heliotis says that because the tattoos took seven to eight months it may raise the question of what the accused was doing in that time and the jurors may conclude that he had no contact with the police over that time. In my view it is drawing a long bow to say that a jury would conclude merely from the fact that tattoos had significantly changed, that the accused was on the run for a lengthy period of time. That would require the jury to conclude that tattoos took a lengthy period of time to be done, that the tattoos were necessarily done before the accused came to the attention of police, and even that the accused had the particular susceptibility to bleeding that the accused said he did. In my view the danger that a jury might conclude in the way that Mr Heliotis said he or she might, is absent. 10 It must be remembered that we are not dealing with this case in the sixties or the seventies and that tattoos are common place these days. It may have in the past said something about the person's character that they were tattooed but that time has long past. 11 I am satisfied that the probative value of the evidence outweighs the risk of prejudicial effect because it is not necessary for the accused to tell the jury everything he has told me in order to effectively rebut what the Crown says against him. 12 The evidence that the Crown seeks to adduce will therefore be admitted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.