Citation: [2026] NSWDC 140
Court: District Court of New South Wales
Date: 21 April 2026
Judge(s): Wilson SC DCJ
Background
The accused, Percy Bell, faced charges arising from an alleged aggravated break and enter at a residential unit on George Street, Waterloo, in the early hours of 9 February 2024. The Crown alleged that the accused and two unknown persons forced entry into the unit, armed with an axe and a knife, and stole various items including bicycles, mobile phones, and personal belongings. Four occupants were home at the time.
The tenant, Piya Plubrai, told police he recognised one of the assailants as "Percy," a person who had briefly lived with him some years earlier. Another occupant, Piyapun Intapun, observed the accused inside his bedroom. Police arranged a computer photographic identification board procedure on the same day. Both Mr Plubrai and Mr Intapun positively identified the accused from the photo board, while a third occupant, Ms Sunurat, did not make an identification.
The accused applied to exclude the identification evidence obtained through the photo board procedures, arguing that the evidence should be refused under sections 135 and 137 of the Evidence Act 1995 (NSW) on the basis that the danger of unfair prejudice outweighed its probative value.
Legal Issues
- Whether the photo board identification evidence of Mr Plubrai and Mr Intapun should be excluded under s 137 of the Evidence Act 1995 (NSW), which requires exclusion where probative value is outweighed by the danger of unfair prejudice to the accused.
- Whether the same evidence should be excluded under s 135 of the Act, which provides a general discretion to refuse evidence where its probative value is substantially outweighed by the danger of unfair prejudice, misleading the jury, or causing confusion.
- Whether the process by which the photo board was created (based on limited identifying information and a prior police event involving the accused) gave rise to a danger of unfair prejudice, specifically that the jury would infer the accused had a criminal record or was known to police.
- Whether the limited certainty of Mr Intapun's identification ("I'm pretty sure it's this one") reduced the probative value of that evidence.
Decision
The accused argued that the probative value of Mr Intapun's identification was limited by his uncertainty during the procedure and his brief interaction with the accused. Submissions also highlighted the inherent frailties of identification evidence generally. As to Mr Plubrai's identification, the accused appeared to focus less on probative value and more on the prejudicial process surrounding the creation of the photo board.
A central plank of the accused's argument was that the manner in which the photo board was constructed would lead the jury to infer that the accused was previously known to police and had a criminal record. The photo board was assembled based solely on Mr Plubrai's statement that the offender was named "Percy" from "the Waterloo area," combined with a police event from the evening before in which a person (later identified as the accused) was found in possession of a machete nearby. The accused had been acquitted of charges relating to that prior event, and the defence submitted that the circumstances of the photo board's creation could not be explored before the jury without revealing prejudicial material.
The accused also took issue with the fact that the photo board was not constructed with reference to any physical description of the offender, raising concerns about the reliability and fairness of the array.
Note: The judgment text provided was truncated and does not include the court's final ruling or full reasoning on whether the evidence was admitted or excluded. The full decision, including any balancing analysis under ss 135 and 137 and the ultimate orders, was not available for this summary. Accordingly, the court's conclusions on the application cannot be stated with certainty from the material provided.
Orders Made
- The full orders made by the court are not available from the truncated text of the judgment.
Key Takeaways
- The District Court engaged the established framework for assessing the admissibility of photographic identification evidence under ss 115, 135, and 137 of the Evidence Act 1995 (NSW), including the interplay between probative value and the danger of unfair prejudice.
- A central challenge raised by the accused concerned not the reliability of the identifications alone, but the process by which the photo board was created, on the basis that the narrow information used to compile it (a first name, a suburb, and a prior police event) would inevitably signal to the jury that the accused was known to police and had a criminal history.
- Whether a qualified identification ("I'm pretty sure it's this one") materially reduced probative value for the purposes of the s 137 balancing exercise was a question the Court was asked to resolve.
- The manner in which police compile photographic identification arrays carries particular significance where the basis for including a suspect in the array may itself become a source of prejudice if revealed or inferred at trial.
- No final resolution of the application is discernible from the available text, and the Court's ultimate findings on the balancing exercise remain unclear from the truncated judgment.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 115, 116, 135, 137, 165
Cases cited:
- Festa v R [2001] HCA 72
- Gilbert v The Queen (2000) 201 CLR 414
- R v Malkouf [1999] NSWCCA 94
- R v Mundine [2008] NSWCCA 55
- R v Nguyen [2003] NSWSC 1068
- THD v The Queen [2010] VSCA 115
- Yasser Ahmad v Regina [2004] NSWCCA 460