R v Abdallah (No. 5) [2014] NSWSC 233

Supreme Court New South Wales

Medium Neutral Citation: R v Abdallah (No. 5) [2014] NSWSC 233 Hearing dates: 17 - 21; 24 - 28; February; 3 - 13 March 2014 Decision date: 13 March 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: Tender rejected Catchwords: EVIDENCE - admissibility - credibility or reliability - whether photographic evidence of tattoos admissible for the purposes of bolstering witness's credibility in terms of what may be observed from certain vantage points; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE - prejudicial nature of evidence - whether probative value outweighs unfair prejudice to the accused Legislation Cited: Crimes (Forensic Procedures) Act 2000 (NSW) Evidence Act 1995 (NSW) ss 102, 136, 137 Category: Interlocutory applications Parties: Regina (Crown) Tarek Abdallah (Accused) Representation: Counsel: P Leask (Crown) D Dalton SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) AHA Taylor (Accused) File Number(s): 2012/00008057

1On 6 March 2014 I rejected the tender by the prosecution of Exhibit VD2. These are my reserved reasons for that decision. 2Exhibit VD2 is a series of six copy photographs of the accused taken under the provisions of the Crimes (Forensic Procedures) Act 2000 (NSW). There is no issue that they were lawfully taken. They depict the accused naked from the waist up. The photographs were obviously taken for identification purposes. Their main purpose seems to have been to record the very extensive tattooing on the accused's torso, neck and right arm. About 75 per cent of his body from the waist up to head level is tattooed. The tattoos are intricately detailed between his waist and neck. Only most of the left side of his abdomen, left shoulder and left arm are not tattooed. His back, the back, and right side, of his neck, the right side of his torso and his right arm (in a sleeve distribution) are covered in tattoos. From what can be seen of his legs in the photographs, his right leg is also tattooed. I repeat, from the depicted postures and poses that he was no doubt asked to adopt the main purpose of the photographs seems to be to record all aspects of his tattoos. 3Identification is not an issue in the Trial. The accused admits that he is the person who shot Neal Todorovski and who pursued John Leger, discharging a firearm during that pursuit. He relies on self-defence on each charge. On the attempted murder charge he disputes the Crown case by saying that he was not shooting at Leger, but rather firing the gun to warn him off. 4The learned Crown Prosecutor says that the purpose of the tender is to establish evidence of a circumstantial nature, that has the effect of supporting eyewitness accounts given by Crown witnesses, when their ability to observe events has been criticised in cross-examination and doubtless will be the subject of defence submissions. In a non-technical sense this is a submission that the photographs are corroborative of the witnesses whose ability to observe the facts and events about which they have given evidence has been questioned. Moreover, the accuracy of the detail recounted by some witnesses, whose opportunity for observation has not been called into question, has been challenged. A number of witnesses fall into these categories, but one witness in particular, Mr Boutsikakis, falls into the former category. 5Mr Boutsikakis' evidence is of particular significance to the Crown case, if accepted by the Jury as reliable. His evidence is that he observed the accused shoot the deceased in two discrete episodes, each involving multiple shots. The episodes were separated by the accused's pursuit of Mr Leger. On Mr Boutsikakis' account, the accused fired multiple shots at the deceased which brought him down onto the road, immobilised. He then chased Mr Leger and Mr Boutsikakis heard further discharges of the gun. The accused then returned to the deceased (he was not yet dead) and delivered what might be referred to as a "coup de grace", finishing the deceased off, as it were, with a further volley of shots to the head and neck. It suffices to say that there is some support for this "theory of the case" in the expert ballistic and pathological evidence. In part, the cross-examination of Mr Boutsikakis proceeded on the basis that he was not in a position to see the things he said he saw, because from his vantage point he had only a limited field of vision. It is unnecessary to go into the detail of that challenge to his reliability for present purposes. (But see for example 515.35T et seq). 6Mr Boutsikakis did not mention the accused's tattoos in his oral evidence, except when cross-examined about evidence he had given in the committal proceedings, when apparently the person who shot the deceased was referred to as "the tattooed man". However, in the 000 call made by Mr Boutsikakis immediately after the shooting, a recording of which was played to the Jury, he described the shooter, inter alia, as "covered ... with all sorts of tattoos and everything". In answer to a question by the operator he confirmed that the shooter "was covered in tattoos". No description of the tattoos was proffered. 7Mr Mataipule, another eyewitness, referred to tattoos on the shoulders of the accused, back around his shoulder blades (604.40 - 604.5T). He was not asked to elaborate. A Mr Sua, a companion of Mr Mataipule's, described the shooter as "pretty heavily tattooed" on his legs and arm and on his back (689.35 - 3690.30T). He could not "really see what they were of". He could not provide any further detail whatsoever. 8Ms Kiel, a witness to the discharge of the gun, the subject of the second count involving Mr Leger said "I definitely remember it looked like he had a tattooed sleeve running down his arm". This was the right arm, but she could not describe the tattoos. She did not describe tattoos anywhere else (742.35 - 743.5T). 9I repeat that it is not an issue in this trial, that the accused is the person who shot the deceased and chased Mr Leger, that he was wearing shorts and a singlet top, and that he is extensively tattooed. The Crown argues that because of the very substantial challenge to Mr Boutsikakis' reliability, and the questioning of the accuracy of the detail recalled by the other witnesses, the photographs are admissible to demonstrate they were close enough to see tattooing on the body of the accused and the recall of each of them was accurate about that. 10 Mr Dalton SC for the accused argued that as identification of the accused as the gunman is not in issue, the photographs showing his tattoos are not relevant. Moreover, the vagueness of the evidence of the lay witnesses about the content of the tattoos means, in any event, that the photographs are not capable of rationally affecting directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings. Learned Senior Counsel argued that the purpose identified by the Crown prosecutor offended the credibility rule established by s 102 of the Evidence Act 1995 (NSW) and no established exception had been made out; and finally the probative value of the photographs (if any) was outweighed by the danger of unfair prejudice to the accused. 11As to the application of s 137 of the Evidence Act, the learned Crown Prosecutor said in reply that I should be slow to conclude that the Jury would misuse the evidence by reasoning that a person as extensively tattooed as the accused would be the type of person to commit murder. 12I am of the view that the photographs are not relevant. The vagueness of the evidence of the lay witnesses about the content of the tattoos in circumstances where there is no issue that the accused is the gunman, makes the photographs incapable of supporting the evidence of the lay witnesses. It is not in doubt that each of the lay witnesses, including Mr Boutsikakis was in a position to observe at least some of the events surrounding the shooting of Mr Todorovski. 13There is no counterpart, for instance, to s 106(2)(d) permitting the admission of evidence which tends to prove a witness was able to be aware of matters to which his or her evidence relates applicable here. 14Accordingly, I rejected the tender. 15I might say, however, that had the matter depended upon the applicability of s 137, I would have accepted the prosecution argument that with adequate directions, given that extensive tattooing is now quite common as a fashion in our community, the jury will not reason in he irrational manner implicit in the defence reliance upon the section. To put the matter another way, I would not have been persuaded that the jury would have misused the photographs to reason irritationally to the accused's guilt. Even so, given what I regard as the very slight probative value of the evidence, it would not take by way of danger of unfair prejudice to outweigh it.