R v Wayne Rodney Schneider (No 1)

CITATION:	R v Wayne Rodney SCHNEIDER (No 1) [2010] NSWDC 6 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 - 9 February 2010
JUDGMENT DATE:	9 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The evidence to be admitted
CATCHWORDS:	CRIMINAL LAW - Judgment - Admissibility of evidence - Photo identification - Assessment of risk of unfair prejudice - Displacement effect
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Bakir [2009] NSWDC 12 R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 325 R v Fisher [2001] NSWCCA 380 R v Mundine [2008] NSWCCA 55 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
PARTIES:	The Crown Wayne Rodney SCHNEIDER
FILE NUMBER(S):	DC 2009/8191
COUNSEL:	Ms T Smith (Crown) Mr C Heliotis QC, Mr A Djemal (Defendant)
SOLICITORS:	Director of Public Prosection Galloways

JUDGMENT

1 HIS HONOUR: On 11 February 2006 a group of people approached a nightclub in the Kings Cross area called the Sapphire Club. They were seeking admission to the club but those responsible for deciding who could enter the club would only let a number of the group into the club. This caused some tension between at least one member of the group and those responsible for admission to the club. After matters were dealt with verbally for some time a member of the group punched a member of the staff of the Sapphire Club. Security guards employed at the club reacted, as did many of the members of the group seeking admission. What I have described so far was captured on CCTV footage. However, at this stage, both the security guards and the group moved out of camera range. Off camera someone produced a pistol and shot one of the security guards, Willy Brown, in the leg. That has led to the accused facing the charge of maliciously inflicting grievous bodily harm with intent. He was arraigned on that charge yesterday and pleaded not guilty.

2 Before the jury could be empanelled I was asked to deal with the question of admissibility of evidence from a Ms Egan identifying the accused as being the person who shot Mr Brown. Ms Egan was in the vicinity of the nightclub and some four months after the events of 11 February 2006 she went to the police station where she was shown, on a computer screen, a number of photographs. Although there were twenty photographs in the array and the accused was in position number 5, Ms Egan selected the accused before she had gone past his photograph. She then continued looking at the remaining photographs and after completion of that process confirmed her selection of the accused as being the person who shot Mr Brown.

3 Mr Heliotis, who with Mr Djemal appears for the accused, says that I should exclude that evidence of identification under s 137 of the Evidence Act because the probative…