AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 23 August 2004

Regina v Iyman Derbas and ors

[2004] NSWSC 972

Public order & justice offences
CRIMINAL LAW EVIDENCE IDENTIFICATION WHETHER PICTURE IDENTIFICATION EVIDENCE PRIOR REFUSAL OF IDENTIFICATION PARADE WHETHER FURTHER OFFER REQUIRED

Citation: Regina v Iyman Derbas and ors [2004] NSWSC 972
Court: Supreme Court of New South Wales, Common Law Division
Date: 23 August 2004
Judge(s): Dunford J

Background

Four accused were charged in connection with events at Parklea Correctional Centre on 4 January 2002, including the death of Assad Barakat. A witness, a fellow prisoner, gave evidence to the NSW Crime Commission on 9 August 2002 and was shown a small set of photographs during that examination. He identified two of the accused from those photographs.

Later that same day, the witness made a statement to police repeating what he had told the Crime Commission, including the photograph identifications. The Crown pressed the Crime Commission identification but not the subsequent police identification as substantive identification evidence.

Defence counsel for two of the accused, Derbas and Cheikho, objected to the admissibility of the photograph identification evidence. The primary grounds were that the evidence did not comply with the picture identification regime under the Evidence Act and, alternatively, that it should be excluded because its probative value was outweighed by unfair prejudice under s 137.

  • Whether the photograph identification made at the Crime Commission constituted "picture identification evidence" within the meaning of s 115 of the Evidence Act, given that the photographs were shown by Crime Commission officers rather than police and were not pictures kept for police use.
  • Whether, because the evidence fell outside s 115, it was excluded from the definition of "visual identification evidence" in s 114 and therefore fell outside the requirements of that section altogether.
  • Whether, in the case of Derbas, a prior refusal to participate in an identification parade (made months before the photograph procedure) satisfied s 114's requirements, or whether a fresh offer was required closer in time to the photograph procedure.
  • Whether, in the case of Cheikho, the evidence was one of recognition of a previously known person rather than identification of a stranger, placing it outside s 114 in any event.
  • Whether the evidence should be excluded under s 137 on the basis that procedural weaknesses in the Crime Commission photograph process created unfair prejudice outweighing probative value.

Decision

Section 115 does not apply. Dunford J held that s 115 only captures identification made by examining pictures kept for the use of police officers, and where the photographs were shown by Crime Commission officers rather than police, the section had no operation. The photographs shown at the Crime Commission did not meet that description.

Section 114 also does not apply. The definition of "picture identification evidence" in s 115 applies only for the purposes of that section. For the purposes of s 114, the term carries its ordinary meaning. Because the Crime Commission procedure involved identification from photographs, it constituted "picture identification evidence" in the ordinary sense, and was therefore expressly excluded from the definition of "visual identification evidence" in s 114(1). Section 114 accordingly had no application, and the evidence was admissible without needing to satisfy that section's requirements.

The Derbas refusal point. Dunford J addressed the alternative argument that, even if s 114 applied, its requirements were satisfied. Derbas had been offered an identification parade on 5 January 2002 and had, in the judge's view, refused by answering "no comment" in his electronically recorded interview. His Honour found no obligation to offer a further identification parade before the Crime Commission photograph procedure seven months later. The earlier refusal was sufficient.

The Cheikho recognition point. For Cheikho, a further independent reason existed for admissibility: the evidence was one of recognition, not identification. The witness had previously known the person as "Shaker" from the same prison yard. Citing R v Gee, Dunford J held that recognition of a previously known person from a photograph falls outside the identification evidence regime in any event. On the s 137 challenge for both accused, the judge accepted there were procedural weaknesses (uncertain number of photographs, no evidence of instructions given to the witness, the Cheikho photograph being unnumbered and smaller than the others) but held these were matters for cross-examination and appropriate jury directions rather than exclusion. The probative value was not outweighed by the risk of unfair prejudice.

Orders Made

  • The identification evidence of witness Mostyn relating to both accused Derbas and Cheikho was admitted.
  • Exclusion under s 137 of the Evidence Act was refused.
  • Directions and warnings regarding identification evidence under ss 116 and 165(1)(b) were reserved for the appropriate time at trial.

Key Takeaways

  • The definition of "picture identification evidence" in s 115 of the Evidence Act is confined to that section alone, covering only photographs shown by police from pictures kept for police use. A broader, ordinary-language meaning of the phrase applies when construing s 114.
  • Where identification is made from photographs shown by a body other than police (such as the Crime Commission), s 115 does not apply, and if the procedure otherwise constitutes "picture identification evidence" in the ordinary sense, it falls outside "visual identification evidence" under s 114, removing that section's requirements as a barrier to admissibility.
  • A prior refusal by an accused to participate in an identification parade does not automatically require a fresh offer before any later photographic identification procedure, at least where no compelling reason for a second offer arises.
  • Recognition of a previously known person from a photograph is distinguishable from identification of a stranger, and may fall outside the identification evidence provisions under R v Gee (2000) 113 A Crim R 376.
  • Procedural imperfections in a photographic identification procedure (such as uncertainty about the number of photographs, absence of instructions, or physical differences between photographs) do not necessarily warrant exclusion under s 137, provided appropriate jury directions and warnings under ss 116 and 165(1)(b) can adequately address any resulting risk.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW), ss 114, 115, 116, 137, 165(1)(b), Dictionary

Cases
- R v Gee (2000) 113 A Crim R 376