Citation: Regina v Amir Ibrahim El Mostafa [2007] NSWDC 326
Court: District Court of New South Wales
Date: 17 April 2007
Judge(s): Cogswell SC DCJ
Background
The accused faced criminal charges, and part of the Crown's case rested on evidence from witnesses who had identified him by examining photographs shown to them by police. This process constituted "picture identification evidence" within the meaning of s 115 of the Evidence Act 1995 (NSW).
At the time the picture identification evidence was gathered, the accused was not held by police. He was in the custody of the Department of Corrective Services, having been detained at a correctional centre.
Defence counsel applied for a ruling that the picture identification evidence was inadmissible under s 115(5) of the Evidence Act 1995. The application turned entirely on whether the accused was, at the relevant time, "in the custody of a police officer of the police force investigating the commission of the offence."
Legal Issues
- Whether the accused was "in the custody of a police officer of the police force investigating the commission of the offence" within the meaning of s 115(5) of the Evidence Act 1995 at the time the picture identification evidence was obtained.
- Whether custody held by Corrective Services authorities, rather than the NSW Police Force, triggers the s 115(5) inadmissibility rule.
Decision
The court held that the accused was not "in the custody of a police officer of the police force investigating the commission of the offence" at the relevant time. The Evidence Act dictionary defines "police officer" as a member of the NSW Police Force, and the Department of Corrective Services plainly does not fall within that definition. The court reasoned that the triple reference in s 115(5) to "a police officer," "a police force," and the "force investigating the commission of the offence" left no room to bring prison authorities within the provision.
The court drew support from two appellate decisions. In Regina v McKellar [2000] NSWCCA 532, Howie J observed that the ordinary meaning should apply to the phrase "in the custody of a police officer." In Regina v Darwiche & Ors [2006] NSWSC 942, Bell J of the Supreme Court reached the same conclusion on materially identical facts, holding that a prisoner held at a correctional centre was not in the custody of a police officer for the purposes of s 115(5).
Because the subsection did not apply, the picture identification evidence was admissible. The defence application was refused.
Orders Made
• The picture identification evidence sought to be led by the Crown is admissible
Key Takeaways
- The District Court held that s 115(5) of the Evidence Act 1995 only excludes picture identification evidence where the defendant was in the custody of a NSW Police officer from the investigating police force at the relevant time.
- Custody held by Corrective Services authorities does not satisfy the s 115(5) threshold, even where the accused is otherwise detained and unavailable to participate in a live identification parade.
- Under s 115(5), all three elements of the custody requirement must be satisfied: the custodian must be a police officer, a member of a police force, and from the force investigating the particular offence.
- Both the Court of Criminal Appeal in McKellar and the Supreme Court in Darwiche applied the ordinary meaning of "in the custody of a police officer," reinforcing that the phrase is not to be read expansively.
- Where s 115(5) is not engaged, the other admissibility exceptions in s 115 (such as the defendant's refusal to participate in a parade or significant change of appearance) become irrelevant to the analysis.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 115 (particularly s 115(1) and s 115(5))
Cases:
- Regina v McKellar [2000] NSWCCA 532
- Regina v Darwiche & Ors [2006] NSWSC 942