JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CRIMINAL 

CITATION	:	THE STATE OF WESTERN AUSTRALIA -v- KUZIMSKI [2012] WASC 67 

CORAM	:	JENKINS J 

HEARD	:	7 ­ 15 DECEMBER 2011 

DELIVERED	:	29 FEBRUARY 2012 

FILE NO/S	:	INS 44 of 2011 

BETWEEN	:	THE STATE OF WESTERN AUSTRALIA
Prosecution
 
AND
 
BRETT NICHOLAS KUZIMSKI
Accused 

Catchwords:
Criminal law - Evidence - Judicial discretion to admit or exclude evidence - Direction to jury that prejudicial evidence was irrelevant and not to be used 
Legislation:
Nil 
Result:
Reasons published 
Category:    B 

Representation:
Counsel:
Prosecution	:	Ms L Petrusa
Accused	:	Mr G Rando 
Solicitors:
Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	John Rando & Co 

Case(s) referred to in judgment(s):

Nil

1	JENKINS J:  Brett Nicholas Kuzimski was convicted after trial by jury before me of two charges of murder.  These are my reasons in respect to the admissibility of photographs of the tattoo on the left hand of the accused (as he then was) and the reasons for the direction I gave the jury in respect of the tattoo.
2		During the course of the prosecution case on 12 December 2011, the prosecutor, in the presence of the jury, placed photographs taken of the accused, when he was in police custody shortly after the victims had died, on the document camera.
3		There were a large number of thumbnail size photographs of the accused on the prosecution brief.  Due to the large number of thumbnail photos on the brief and the fact that the parties appeared to have cooperated to reach agreement about the more than 20 bundles of relevant photos which had been tendered prior to the photos of the accused being produced, I did not examine in detail the thumbnail photos of the accused on the prosecution brief.  Nor prior to each photo of the accused being placed on the document camera in front of the jury, did I look at the bundle of photos of the accused which the prosecutor produced to the witness, Michael Lamb.  Regrettably, I had not seen previously the photos in the bundle which showed a tattoo across four fingers on the accused's left hand of the word 'kill'.
4		When the photo which became exhibit 37.18 was put on the document camera, I immediately saw the tattoo of the word 'kill'.  I also appreciated the probative value of the photo to show the injuries or lack thereof on his left hand and the highly prejudicial nature of the tattoo in the context of the trial of the accused on two charges of murder.  However, there was no opportunity for me to stop the jury from seeing the photo as by that point, it was clearly displayed on the document camera.  I believed that all of the jurors saw the tattoo at the same time that I did, even though the photo was only on the document camera for a short period.
5		After the photo had been shown to the jury but before the bundle of photos was tendered, I inspected the entire bundle of photos which became exhibit 37 and noted that exhibit 37.12 also contained a depiction of the tattoo.  I had not been able to read it when it was put on the camera due to it being a longer distance shot of both hands.
6		There was no objection by defence counsel to the tender of the whole bundle of photos of the accused (ts 357).  I decided to accept the tender of the bundle of the photos, despite my concerns about the prejudicial nature of these two photos, on the basis that to say anything about excluding the photos from the tender would have signalled to the jury that I thought that the tattoo was an important matter.  Also, I had not at that time heard submissions from counsel about the relevance of the tattoo.  I understood that the photos of the state of the accused had some probative value as described previously but I thought that it was possible that there was some other probative value of the tattoo or photos, which I did not appreciate, and that the parties may have agreed to the photos of it being tendered for a specific reason.  For example, I thought it was possible that the prosecution wished to cross‑examine the accused about it and therefore was tendering so as to avoid splitting its case.  Although I was displeased that the prosecutor had shown the photo to the jury without prior notice to me, I decided that as the luncheon adjournment was approaching, I would simply admit the bundle of photos into evidence and deal with the matter later in the absence of the jury.  If I decided not to admit the photograph into evidence, I could still withdraw it from the bundle.
7		After I raised the issue with her, the prosecutor made submissions on the relevance of the tattoo, to the effect that it had no relevance to the issues to be decided by the jury and that it was the injuries or lack thereof on the accused's hand which were relevant.  The prosecutor submitted that any prejudice caused by the photos including the tattoo could be dealt with by directions from me.  The accused's counsel did not make any submissions on the issue.  I said that I would consider the matter further and decide what directions to give to the jury about the photos (ts 371).  In the course of deciding what direction to give to the jury about the photos, I went through a decision making process which I did not articulate.  These are my reasons for dealing with the evidence of the tattoo in the manner I did.
8		I formed the view that the only relevance of the photos of the top of the accused's left hand was to show whether or not it was injured or had marks on it which may or may not be consistent with the State's case or the version of events put forward by the accused.  Absent any overriding prejudicial nature of the photographs, they were admissible for this purpose.  Exhibit 37.12 was also admissible more generally to show the state of both hands and arms below the sleeve of the accused's t‑shirt.
9		There was no objection by the defence to the admission into evidence of either photo.  Despite the lack of objection, I was aware that I had an overriding obligation to ensure that the trial was a fair one.  Pursuant to that obligation I considered whether the prejudicial nature of the photos of the hands outweighed their probative value.  I considered that the potential prejudice to the accused in the admission of the photos was quite significant if the jury should use the evidence of the tattoo as evidence of a propensity of the accused to kill another person.
10		The difficulty for me at that point was in deciding how to overcome the potential for such prejudice, given that the jury had already seen the tattoo.  It seemed to me that there were only three options.  The first was to discharge the jury and abort the trial.  Neither party had asked me to do this.  On reflection I decided that I could ensure the trial was a fair one without taking that step.
11		The second option was to refuse the tender of the photos showing the tattoo.  I knew that if I did that I would have to explain to the jury why I was doing it as they had already seen the photos and knew that they were part of a series of photos shown to Mr Lamb, the balance of which would be in evidence.  I was concerned that if I withdrew the photos it would amplify the significance of the tattoo and the jury would interpret it as a signal that I thought that the tattoo was important.
12		Also, when I examined the photos more closely I noted that, given the jury knew what was tattooed on the left hand, the tattoo was legible in the photo which was exhibit 37.20.  Exhibit 37.19 also showed part of the tattoo.  If I withdrew exhibits 37.18 and 37.12 I would also have to withdraw exhibit 37.20, and possibly exhibit 37.19.  The probative weight of all of these photos was greater than the probative value of photo exhibit 37.18, alone.  Finally, as the prosecutor had said in submissions there was also a real chance that one or more of the jurors had already seen the tattoo on the accused as he sat in the dock.  Although I could not see the tattoo from the bench, some of the jurors were a lot closer to the accused than I was.  I concluded that withdrawing the photos from the jury would not result in the jury forgetting what they had seen and may result in them thinking that the tattoo was important, when clearly, it was irrelevant.  In colloquial terms I formed the view that by adopting option 2, the tattoo may become 'the elephant in the corner of the room'.  
13		The third option, and that which I decided to take, was to leave the photos in evidence but to give the jury a firm direction at the end of the trial as to the irrelevance of the tattoo in their deliberations.  I decided that by dealing with the tattoo in that way the jury would not think that I thought that the tattoo had any significance in their deliberations and that they would know that it was irrelevant evidence, which they must not take into account in their deliberations. I considered that it was a matter upon which proper directions to the jury could neutralise the prejudicial nature of the tattoo, given that the jury had already seen the tattoo.
14		There was no mention of the tattoo in court in the presence of the jury between the time when the photos where placed on the document camera and when I gave the relevant direction to the jury.  The photos did not go into the jury room prior to the jury retiring to consider its verdict.  Although I could have given the jury a direction on the tattoo during the course of the evidence, I decided not to because of the risk that it would simply remind them of it and cause it to gain more significance.