Reported Decision : 10 DCLR (NSW) 9 New South Wales District Court CITATION: R v Wayne Rodney SCHNEIDER (No 3) [2010] NSWDC 9 HEARING DATE(S): 10 - 11 February JUDGMENT DATE: 11 February 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: Evidence not admitted CATCHWORDS: CRIMINAL LAW - Judgment - Admissibility of evidence - Evidence of flight PARTIES: The Crown Wayne Rodney Schneider FILE NUMBER(S): DC 2009/8191 COUNSEL: Ms T Smith - Crown Mr C Heliotis QC, Mr A Djemal - Defendant SOLICITORS: Director of Public Prosecutions Galloways - Defendant JUDGMENT 1 HIS HONOUR: Much of the last few days has been taken up with the question of whether the Crown should be entitled to rely on evidence of flight before the jury. 2 It seems that soon after the events of 11 February 2006 the appellant learnt from rumours at his workplace and from his friends that he was a suspect in the shooting. He approached a number of lawyers and arrangements were made for him to hand himself in. But instead of that occurring he fled, making efforts to cover his tracks. The authorities heard nothing from him until some eighteen months later when the accused, who was then living in South Australia, contacted a South Australian lawyer. Arrangements were made for him to surrender himself to South Australian police. He was granted bail and he voluntarily came back to New South Wales where he turned himself in to New South Wales police. 3 A great deal of the evidence that I have heard concerns the events of early March. The accused relies on those events as demonstrating that he had a reason for absconding that was unrelated to a consciousness of guilt. I do not need to set out that evidence in any detail at all. I will however say that I do not accept that that was the reason for his initial flight. It is not the law that an accused person can cause Crown evidence to be rejected simply by claiming a need to introduce prejudicial evidence to rebut it. And so if I was looking only at the question of initial flight I would say that I do not accept the appellant's evidence on that and would have allowed the Crown to call the evidence it wished. However the situation is entirely different regarding an explanation that the accused offered for his continued absence. 4 He gave evidence that whilst he was on the run he became aware of newspaper articles. The Crown tendered a copy of one of the newspaper articles. It contains a number of inaccurate and inflammatory statements, I am not able to reject the accused's evidence that having seen or at least learnt of these articles he formed the opinion that he may not get a fair trial. The article is headed "Police hunt for bikie angel of violence" and a photograph of Mr Schneider appears. The first paragraph is, "This is the man police believe drew first blood in a dangerous ongoing turf war between Sydney's outlaw motorcycle gangs". This is not correct. The shooting had nothing to do with any "turf war". Of course I can tell the jury that it is not correct but no doubt the fact that Mr Schneider who was there at the scene when the shooting occurred and knew that it had nothing to do with an ongoing turf war between Sydney's outlaw motorcycle gangs would have led Mr Schneider to have concerns about the fairness of any trial that he would face, both in terms of the inaccuracy of the statement and its likely effect on any potential juror. 5 The article refers to a "spray of bullets". Again that is not accurate but has the potential in Mr Schneider's mind to inflame a potential juror and cause concern that inaccurate information was published. The article says, "Gang squad detectives are tight lipped about Schneider". Well that is not true either. It seems that they were responsible for the publication of the article in the first place in a matter referred to by Detective Sergeant Kerfoot in his evidence before me. I wish to make it clear I am not being critical of the police at all. They had a man who they believed to be an armed and dangerous offender on the run and needed the assistance of the media in order to identify where he was. So I repeat, I am not being critical of the officers. What I am looking at however is the affect of the publication of that article on the decision of Mr Schneider to remain in hiding. 6 Having looked at the article, having heard Mr Schneider's evidence, I cannot say that I am satisfied that the newspaper article had nothing to do with his decision to remain in hiding. That means I have to look at the question of whether it would be fair to Mr Schneider to introduce evidence of flight and remaining in hiding in circumstances where I consider that he should be entitled to put before the jury an explanation which reveals a number of aspects of his character including that he was a member of the Hell's Angels outlaw motorcycle gang. In particular I have to compare the probative value of the evidence of flight with the risk of unfair prejudice that the explanation would create. 7 This is an unusual flight case because of the circumstance that the offender ultimately turned himself in. Nor is it a case where he waited until the evidence against him was significantly weaker, such as might be the case if a star Crown witness had died. So in terms of consciousness of guilt this is not as strong a case as if the accused had ultimately been detected by police and arrested without his cooperation. 8 The probative value of flight is always problematic because it can usually, in fact almost always, be explained by a fear of unjust conviction. A person can say "look I ran away because I was worried that I, an innocent man, would find myself unjustly convicted. " 9 On top of that is the circumstance that I referred to in this case; that it was the offender who turned himself in. The probative value of the evidence has to be looked at in that light. 10 Then we come to the question of the risk of unfair prejudice and there are two particular aspects that I wish to refer to. The first is the accused, in order to present his response to the Crown's suggestion that he fled because he knew he was guilty, would have to refer to some aspects of the newspaper articles, those being the aspects that caused him concern. The newspaper articles, even such reference to them would raise in a potential juror's mind significant questions as to the accused's bad character. 11 The other is the possibility, which I must do what I can to guard against, that despite any direction from me, even a forceful one, a juror might act in contrary to his or her oath or affirmation and conduct their own research. If one types in the words "Wayne Schneider" into Google the results are such that significant features of the publicity that has attended Mr Schneider are revealed. 12 So the risk of unfair prejudice encompasses not only the fact that in order to present his case as forcefully as it should be presented, he would have to refer to the content of the newspaper articles. It also includes the risk that a juror would himself or herself, having learned about the existence of the newspaper articles, go looking for them. The publicity which has attended Mr Schneider's flight and arrest, and I see from Google other matters as well, is going to require careful management by me and counsel as well in order to prevent jurors being prejudiced against the accused. The risk however of prejudice is exacerbated to the extent that the risk of unfair prejudice outweighs the probative value of the flight, if I were to admit evidence of flight. 13 I note in passing that Madam Crown made the submission that evidence of the accused's membership of the Hell's Angels would need to be admitted in any case. However I rather gather that she pressed that position somewhat faintly. In my view the accused's membership has, as I understand the case, no relevance at all and certainly if it has relevance in a way I have not yet understood, I cannot see how the probative value of that evidence would outweigh the risk of unfair prejudice; that risk of unfair prejudice being rather obvious. 14 The result is that I will not allow the Crown to adduce evidence of flight, nor will I allow the Crown to adduce evidence at this stage that the accused was a member of the Hell's Angels. It may be that I need to revisit that latter ruling later on, but as matters stand that is the decision I have come to. ********** 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. 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