R v Anas Ayman Abdu Musa

Case [2025] QSCPR 1

SUPREME COURT OF QUEENSLAND

CITATION:  R v Anas Ayman Abdu Musa [2025] QSCPR 1
PARTIES:  THE KING
(respondent)
v
ANAS AYMAN ABDU MUSA
(defendant/applicant)
FILE NO:  Indictment No 1205 of 2023
DIVISION:  Trial Division
PROCEEDING:  Application under s 590AA of the Criminal Code
ORIGINATING  Supreme Court at Brisbane
COURT: 
DELIVERED ON:  28 February 2025
DELIVERED AT:  Brisbane
HEARING DATE:  3 October 2024
JUDGE:  Muir J
ORDER:  The application filed 19 February 2024 is dismissed.
CATCHWORDS:  CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant filed an application pursuant to s 590AA of the Criminal Code to exclude the identification evidence of two witnesses – where the applicant is charged with murder and other offences of violence – where the applicant was initially charged conjointly with twelve other men – where the applicant was granted an order for a separate trial – where the applicant was only recognised by the witnesses when (together) they searched Facebook under the applicant’s name – whether the probative value of the identification evidence is outweighed by its prejudicial effect – whether the discretion to exclude evidence should be exercised.
Criminal Code Act 1899 (Qld) s 590AA
Alexander v The Queen (1981) 145 CLR 395, followed
Bunning v Cross (1978) 141 CLR 54, followed
R v Currie [1990] QSCCCA 288, considered
Moke v R [2017] QDCPR 8, considered
R v Blick (2000) 111 A Crim R 326, considered
R v Christie [1914] AC 545, considered
Strauss v Police (2013) 224 A Crim R 389, considered
COUNSEL:  A Edwards KC for the applicant
N Crane for the respondent
SOLICITORS:  Owens and Associates for the applicant
Office of the Director of Public Prosecutions for the
respondent
The application 

  1. The applicant is charged on indictment with twelve offences of violence against twelve complainants, the most serious being the alleged murder of Girum Gebayaw Mekonnen. The offences are alleged to have been committed in the late afternoon of 13 September 2020, when a group of ten or more young men of African descent armed with baseball bats, knives and machetes attacked a group of about 13 men and two women (also of African descent) in a park colloquially known as “the Zoo” at Zillmere on the north side of Brisbane. The impetus for the attack, apparently being one of revenge, was an earlier assault by someone associated with the complainant group committed against the brother of one of the attackers.

  2. The applicant was initially charged conjointly with twelve other men, but subsequently applied for and was granted an order for a separate trial on the basis that the case against him was “factually different” and “notably weaker”.[1] A trial by jury of the 12 men commenced late last year before another judge of this court, but for various reasons, that trial morphed into a judge only trial with the trial judge’s decision reserved and impending.

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R v Anas Ayman Abdu Musa [2025] QSCPR 1
Case
[2025] QSCPR 1
Decision Date

CaseChat Overview and Summary

In the case of R v Anas Ayman Abdu Musa, the applicant sought an order under section 590AA of the Criminal Code to exclude the identification evidence of two witnesses, Ms Mabior and Ms Awan, who recognised him as one of the attackers in a violent incident that resulted in the death of one person and injuries to eleven others. The applicant was initially charged with twelve others but was granted a separate trial order. The witnesses identified the applicant after searching for him on Facebook under his name, which the applicant argued should lead to the exclusion of this evidence.

The court was tasked with determining whether the probative value of the identification evidence was outweighed by its prejudicial effect, and whether the discretion to exclude evidence should be exercised. The applicant's legal team highlighted numerous inconsistencies in the witnesses' testimonies, arguing that the evidence was unreliable and potentially prejudicial. The court acknowledged the well-established risks associated with identification evidence, especially when it involves recognition rather than a complete stranger, and noted the potential for contamination through the "displacement effect."

After weighing the arguments and the quality of the evidence, the court concluded that the probative value of the identification evidence did not outweigh its prejudicial effect. Consequently, the application to exclude the evidence was dismissed, allowing the identification evidence to be considered at the trial. This decision underscores the importance of carefully assessing the reliability and potential prejudice of identification evidence in criminal cases.

Orders

Orders of the court

The application filed 19 February 2024 is dismissed.

Background

Background to the litigation

It follows that the resolution of the issue for my determination requires a general understanding of the facts and circumstances of the attack and an assessment of the quality, reliability and weight of the evidence which places the applicant in the park on the afternoon in question.[8] [8] Dupas v The Queen (2012) 218 A Crim R 507 at 545–6 [141]–[142] per Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA. Overview of the Crown case and the alleged facts The complainant group were casually drinking and playing cards in the park on the sunlit afternoon of 13 September 2020 when the avenging group of 13 arrived nearby. All of the latter group, apart from the applicant, had travelled in convoy in three cars from Ipswich to Zillmere. The applicant lived at Bray Park and is alleged to have met up with the other 12 men near the park. Three of the men remained with the cars as getaways while around 5.20 pm the other 10 men (including the applicant) walked to the park, disguised by caps, hoodies and masks, and apparently armed with concealed weapons including baseball bats, knives and machetes. Once there, the 10 men almost immediately commenced their retributing ambush of the complainant group using the weapons they had carried with them and some empty beer bottles lying on the ground. What ensued was a chaotic and violent attack resulting in significant injury to 11 complainants. Sadly, the twelfth victim, Mr Mekonnen, suffered a fatal stab wound to his abdomen and died at the scene. The entire attack appears to have lasted for no longer than five minutes.[9] [9] The Applicant’s outline of submissions refers to the attack starting at approximately 5.22 pm at 1 [2], and the Statement of Crown Allegation refers to a call from one of the attackers to one of the getaway drivers being at 5.27 pm at 32 [109]. The Crown is unable to identify a principal offender but relies on each of the 10 attackers present as being criminally responsible for the murder of the deceased and the various injuries upon the 11 complainants under one or more of ss 7(1)(a), 7(1)(c) or 8 of the Criminal Code. The Crown case against the three men who waited with the cars proceeded on the basis that they were participants in the prosecution of an alleged unlawful purpose and are therefore criminally responsible under s 8 of the Criminal Code. The Crown’s written submissions refer to the existence of CCTV footage depicting the “disguised assailants.”[10] However, this footage was not tendered in the application before me with the Crown conceding that “it is not possible for the fact-finder to independently identify the applicant [on the CCTV footage] within that group.”[11] [10] Respondent’s outline of submissions at 2 [5]. [11] Respondent’s outline of submissions at 2 [5]. Identification of the applicant The only evidence that points to the applicant being one of the 10 attackers in the park comes from Ms Mabior and Ms Awan - two women who were part of the complainant group. Ms Mabior is also the complainant in one of the counts, having suffered bodily harm in the attack.

Evidence

Evidence Before The Court

This later statement is of course inconsistent with Ms Mabior’s earlier statement on 17 September 2020 that when she searched “Anas” on Facebook she had no suspicions about him at all and thought he was a girl. Committal Hearing Evidence of Ms Mabior and Ms Awan Both Ms Mabior and Ms Awan were cross examined at the committal hearing. Ms Mabior’s evidence was heard over two days with the committal hearing adjourning part-way through her evidence due to police disclosure issues. Ms Awan’s evidence ran for a day. The applicant referred to a myriad of inconsistencies and difficulties with the evidence given from both women at the committal hearing. Senior Counsel for the applicant described Ms Mabior as unresponsive, argumentative and inconsistent “in the extreme”; referring to her at one stage having “stormed out” of the remote room from where she was giving evidence.[12] [12] Applicant’s outline of submissions at 6 [12]. The applicant pointed to specific inconsistences, weaknesses and difficulties with the evidence of Ms Mabior and Ms Awan. In doing so, the applicant sought to distinguish a number of authorities in which appeals against the admission of Facebook identification evidence were unsuccessful.[13] Some of the specific inconsistencies raised by the applicant with regard to the identification evidence are set out below: [13] Applicant’s outline of submissions at 12 [49]–14 [56] with reference to R v Kearney (2013) 118 SASR 335 at 339–340 [26], 340 [29], 341 [32] per Vanstone J, with Kourakis CJ and Stanley J agreeing; Dia v The Queen [2014] NSWCCA 9 at [68] per Hoeben CJ at CL, with Schmidt J and Barr JA agreeing; Peterson v The Queen [2014] VSCA 111 at [48] and [55] per Priest and Beach JJA. Each case of this kind turns on its facts. I accept the applicant’s submissions about the frailties of Ms Mabior’s and Ms Awan’s evidence. But it is relevant too that the present case is one of recognition and identification, in the sense that the applicant was, according to both witnesses, not a complete stranger. Consideration The principles identifying the potential for a miscarriage of justice arising out of identification evidence are well known.[14] Long before the advent of Facebook, identification evidence, particularly in relation to strangers, has been described as “notoriously uncertain”,[15] “often proved to be unreliable”[16] and “proverbially untrustworthy”.[17] It is also testimony that has been described as “seductive”[18] and very persuasive, and it is a matter about which witnesses may be over-confident and dogmatic.[19] [14] Domican v The Queen (1992) 173 CLR 555. [15] Alexander v the Queen (1981) 145 CLR 395 at 426 per Mason J. [16] Festa v The Queen (2001) 208 CLR 593 at 610 per McHugh J. [17] Strauss v Police (2013) 224 A Crim R 389 at 395 [17] per Peek J with reference to Suzannah B Gambell, “The Need to Revisit the Neil v Biggers Factors: Suppressing Unreliable Eyewitness Identifications” (2006) 6 Wyoming Law Review 189, 190. [18] Strauss v Police (2013) 224 A Crim R 389 at 395 [17] per Peek J with reference to Domican v R (1992) 173 CLR 555 at 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ and Loretta Re, “Eyewitness Identification: Why So Many Mistakes?” (1984) 58 Australian Law Journal 509, 515–516. [19] Strauss v Police (2013) 224 A Crim R 389 at 395 [17] per Peek J with reference to JD Heydon, “Evidence of Identification: The Law” (1982) 14(4) Australian Journal of Forensic Sciences 134, 136.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Each case of this kind turns on its facts. I accept the applicant’s submissions about the frailties of Ms Mabior’s and Ms Awan’s evidence. But it is relevant too that the present case is one of recognition and identification, in the sense that the applicant was, according to both witnesses, not a complete stranger. Consideration The principles identifying the potential for a miscarriage of justice arising out of identification evidence are well known.[14] Long before the advent of Facebook, identification evidence, particularly in relation to strangers, has been described as “notoriously uncertain”,[15] “often proved to be unreliable”[16] and “proverbially untrustworthy”.[17] It is also testimony that has been described as “seductive”[18] and very persuasive, and it is a matter about which witnesses may be over-confident and dogmatic.[19] [14] Domican v The Queen (1992) 173 CLR 555. [15] Alexander v the Queen (1981) 145 CLR 395 at 426 per Mason J. [16] Festa v The Queen (2001) 208 CLR 593 at 610 per McHugh J. [17] Strauss v Police (2013) 224 A Crim R 389 at 395 [17] per Peek J with reference to Suzannah B Gambell, “The Need to Revisit the Neil v Biggers Factors: Suppressing Unreliable Eyewitness Identifications” (2006) 6 Wyoming Law Review 189, 190. [18] Strauss v Police (2013) 224 A Crim R 389 at 395 [17] per Peek J with reference to Domican v R (1992) 173 CLR 555 at 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ and Loretta Re, “Eyewitness Identification: Why So Many Mistakes?” (1984) 58 Australian Law Journal 509, 515–516. [19] Strauss v Police (2013) 224 A Crim R 389 at 395 [17] per Peek J with reference to JD Heydon, “Evidence of Identification: The Law” (1982) 14(4) Australian Journal of Forensic Sciences 134, 136. The risk of the contamination of identification evidence through the subconscious effect of seeing a photograph upon a witness’ recollection of the actual appearance of an offender is often described as the “displacement effect.”[20] This is not a new concept. In R v Crawford (2015) 123 SASR 353, the court referred to the descriptions of the “displacement effect” given by Stephen J in Alexander v The Queen (1981) 145 CLR 395 (and in several other cases) as follows:[21] “Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection [20] See for example: Alexander v The Queen (1981) 145 CLR 395 at 409 per Stephen J; Moreno v The King (2023) 307 A Crim R 519 at 534 [75] per Priest AP, Niall and Kaye JJA. [21] R v Crawford (2015) 123 SASR 353 at 376–7 [88]–[90]. [22] Alexander v The Queen (1981) 145 CLR 395 at 409 per Stephen J. of the original sighting.”[22]