Citation: R v Amir EL MOSTAFA; R v Saleh KHODR [2007] NSWDC 392
Court: District Court of New South Wales
Date: 18 April 2007
Judge(s): Cogswell SC DCJ
Background
Two accused faced trial in the District Court, with the proceedings arising from an alleged riot. The Crown sought to call witnesses who would identify one of the accused, referred to here as the first accused, as having been present at the scene. The proposed identification evidence took the form of both descriptive accounts and recognition evidence from witnesses who saw the first accused at the alleged riot.
Before trial, a voir dire (a preliminary hearing to determine admissibility of evidence) was conducted. The question was whether the Crown could lead this visual identification evidence, given the requirements imposed by the Evidence Act 1995.
Legal Issues
- Whether the proposed witness evidence constituted "visual identification evidence" within the meaning of the Evidence Act 1995
- Whether the Crown was excused from the requirement to hold an identification parade on the basis that it would not have been reasonable to do so
- Whether the first accused had refused to take part in an identification parade, thereby enlivening the exception under s 114(2)(c) of the Evidence Act 1995
Decision
The Crown first argued that the witnesses' evidence did not amount to visual identification evidence at all. Cogswell SC DCJ rejected that submission, finding the evidence clearly fell within the definition: it was identification evidence based wholly or partly on what the witnesses saw.
The Crown next argued that holding an identification parade would not have been reasonable, seeking to rely on that exception to the general inadmissibility rule. The court rejected this argument too. The police had in fact proceeded to conduct photographic identification, which demonstrated they regarded further investigative steps as important. That conduct was inconsistent with a claim that a parade would have been unreasonable.
The Crown then relied on s 114(2)(c), which provides an exception where an accused has refused to take part in an identification parade. The court examined the first accused's answers in his record of interview (questions 59 to 64). Those answers were found to constitute an unqualified refusal to participate in a parade, expressed in clear terms and accompanied by reasons given by the accused himself.
Because the refusal exception applied, the visual identification evidence, including the recognition evidence from witnesses present at the scene, was held to be admissible. The court noted the accused's counsel had raised concern about the reasons for the refusal being placed before the jury, and the Crown indicated it would consider presenting the refusal evidence without those accompanying reasons.
Orders Made
• The evidence is admissible
• Visual identification evidence in the form of recognition evidence from witnesses at the scene is admissible
Key Takeaways
- Recognition evidence from witnesses who observed an accused at the scene of an alleged offence constitutes "visual identification evidence" for the purposes of the Evidence Act 1995, even where the identification includes a descriptive element.
- Where police have themselves taken further investigative steps, such as conducting photographic identification, that conduct weighs against a finding that holding an identification parade would have been unreasonable.
- Under s 114(2)(c) of the Evidence Act 1995, a clear and unqualified statement by an accused in a record of interview that he does not wish to participate in an identification parade can amount to a refusal, even where the accused also provides reasons for that position.
- A refusal to participate in an identification parade removes the general bar on admitting visual identification evidence, making such evidence available to the Crown at trial.
- Separate questions may arise about how refusal evidence is presented to the jury, particularly whether an accused's reasons for refusing should be placed before the jury alongside the refusal itself.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 114 (including s 114(2) and s 114(2)(c))
Cases cited: None cited in the judgment text.