Citation: R v Yassar Bakir [2009] NSWDC 12
Court: District Court of New South Wales
Date: 13 February 2009
Judge(s): Berman SC DCJ
Background
The accused was charged with several offences, including shooting with intent to murder, arising from an incident in Norton Street, Leichhardt on 15 November 2007. An eyewitness, referred to here as the witness, was seated in a vehicle nearby when she heard shots and observed three men, one of whom fired a pistol.
Approximately five and a half months after the shooting, police travelled to Queensland to conduct a photo identification procedure with the witness. From a set of 20 photographs, she selected two images: photograph 7 (a photo of the accused) as the likely gunman, and photograph 16 as the person who passed the gun. Her selections were tentative, and notably she showed no reaction when she first viewed photograph 7.
At committal proceedings in August 2008, the prosecutor at that hearing told the witness, before she gave evidence, that the person in photograph 16 was not a suspect and not a person of interest. The witness then denied in cross-examination that anything of the kind had been said to her, effectively lying to the court. She later admitted this in the voir dire (a pre-trial hearing to determine the admissibility of evidence), explaining she had believed the information was confidential.
Legal Issues
- Whether the identification evidence of the witness should be excluded under ss 135 and 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
- Whether the evidence was also inadmissible under s 115 of the Evidence Act 1995 (NSW), which governs the circumstances in which picture identification evidence is permitted.
Decision
The court focused first on the consequences of the prosecutor's pre-trial conduct. Once the witness was told that photograph 16 depicted a non-suspect, she would inevitably have inferred that photograph 7 depicted the person police believed to be the gunman. This effectively transformed what had been a genuinely uncertain, dual-selection identification into a confirmation of the accused's identity, guided by information from the prosecuting authority itself.
The court held that the probative value of the witness's identification evidence had been seriously compromised by this sequence of events. Any weight it might have had was undermined by the knowledge that the witness's identification of the accused had been contaminated before she gave her committal evidence. Combined with the already tentative nature of her original selections, the danger of unfair prejudice to the accused outweighed the probative value of the evidence, satisfying the threshold for exclusion under ss 135 and 137 of the Evidence Act.
The court also addressed the s 115 argument, which turned on whether the accused's earlier refusal to participate in an identification parade continued to justify the use of picture identification evidence conducted some months later. The court expressed a preference for the Crown's position, namely that a single earlier refusal was sufficient to authorise the later picture identification procedure, but did not reach a concluded view on this point. That issue was unnecessary to decide given the exclusion already ordered under ss 135 and 137.
The court was careful to note that it had not heard from the prosecutor who gave the information to the witness, and so declined to make definitive findings of personal fault against that individual. Nevertheless, the court described the conduct as "remarkable" and made clear it was improper.
Orders Made
- The identification evidence of the witness is excluded.
Key Takeaways
- Where a prosecutor discloses to an eyewitness, before that witness gives evidence, that one of the witness's earlier photo identifications was incorrect, that conduct can render the remaining identification evidence inadmissible by destroying its probative value and creating unfair prejudice.
- Identification evidence that was already tentative at the time of the photo array is particularly vulnerable to exclusion where subsequent events have further undermined its reliability.
- Under ss 135 and 137 of the Evidence Act 1995 (NSW), a court must exclude evidence where the danger of unfair prejudice to the defendant outweighs the probative value of the evidence. The District Court found that threshold satisfied here.
- The court left open, without finally deciding, whether a defendant's earlier refusal to participate in an identification parade continues indefinitely to satisfy s 115(5) of the Evidence Act, or whether subsequent events could displace reliance on that earlier refusal.
- A witness who conceals from the defence, during cross-examination, the fact of a communication from the prosecution has provided false evidence, even where the witness believed the communication was confidential.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 115, 135, 137
Cases
- Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612
- R v Blick (2000) 111 A Crim R 236; [2000] NSWCCA 61
- R v Fisher [2001] NSWCCA 380
Other
- Australian Law Reform Commission, ALRC 26, vol 1, para 644