R v Amir El Mostafa; R v Saleh Khodr

[2007] NSWDC 392

CITATION:	R v Amir EL MOSTAFA; R v Saleh KHODR [2007] NSWDC 392
JUDGMENT DATE:	18 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The evidence is admissible
CATCHWORDS:	CRIMINAL LAW - jury trial - application to call evidence of visual identification pursuant to s 114 of the Evidence Act 1995 - whether the evidence amounted to visual identification evidence - whether the accused refused to take part in an identification parade
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	Regina Amir El Mostaga Saleh Khodr
FILE NUMBER(S):	2006/11/0574; 2006/21/0047
COUNSEL:	Mr Calvert for the Director of Public Prosecutions Mr Simpson for Mr El Mostafa Dr Webb for Mr Khodr

JUDGMENT

1. The Crown Prosecutor intends to call certain witnesses in this trial who will identify the accused, Mr El Mostafa, by evidence that they saw him at the scene of the alleged riot. The evidence of identification will be by description and also, I understand, by evidence that they recognised him by one means or another. On this application the Crown Prosecutor tendered statements from those witnesses which I marked VDEM 33. In addition Detective Whitton was called and gave evidence.

2. The Crown Prosecutor submitted that the evidence did not amount to visual identification evidence. I disagree with that submission. The evidence clearly amounts to identification evidence relating to an identification based wholly or partly on what the respective witnesses saw.

3. The Crown Prosecutor submitted that in accordance with s 114(2) of the Evidence Act 1995, that he was released from such evidence being inadmissible because it would not have been reasonable to have held a parade. I reject that submission because the police in fact proceeded to use photographic identification so that they clearly regarded it as important to take the investigation a further step.

4. That left the crown prosecutor relying upon s 114(2)(c) in that Mr El Mostafa was said to have refused to take part in an identification parade. He relied upon the answers given by Mr El Mostafa to questions 59 through to 64 inclusive of exhibit VDEM 1, the record of interview.

5. In my opinion those answers amount to an unqualified assertion by Mr El Mostafa that he did not desire to take part in a process of identification by an identification parade and it amounted to a refusal to take part in such a parade. Not only did he refuse in clear terms but he gave reasons.

6. I should add that Mr Simpson expressed some concern about those reasons being tendered into evidence before the jury. I can understand that concern. The Crown Prosecutor indicated that he would turn his mind to seeing whether the evidence of the refusal can be presented in a more straightforward way which does not include the accused's reasons.

7. Accordingly in my opinion there is evidence that Mr El Mostafa refused to take part in the identification parade. Accordingly the visual identification evidence in the form of recognition evidence from witnesses at the scene is, in my opinion, admissible.

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