R v Wayne Rodney Schneider (No 2)

CITATION:	R v Wayne Rodney SCHNEIDER (No 2) [2010] NSWDC 7
HEARING DATE(S):	8 - 9 February 2010
JUDGMENT DATE:	9 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Evidence excluded.
CATCHWORDS:	CRIMINAL LAW - Judgment - Application to exclude evidence of identification - Risk of unfair prejudice
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Wayne Rodney Schneider No 1 [2010] NSWDC 6
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 Prosecutions Galloways - Defendant

JUDGMENT

1 HIS HONOUR: Identification witnesses pose a particular problem to the criminal justice system. The problem is, as has been recognised repeatedly, is that such witnesses are usually honest and the question at issue is whether they are mistaken. Identification witnesses are usually very persuasive and the authorities recognise that there is a risk that this honesty and ability to persuade the jury can lead to their evidence being treated as having greater weight than it truly deserves. The criminal justice system responds to these considerations in various ways two, in particular, concern directions that judges should give and restrictions on the admissibility of identification evidence. Identification evidence is singled out under the Evidence Act for very special treatment.

2 In this case the accused asks that I exclude evidence of what occurred when a Mr Usman was shown a number of photographs, including that of the accused. I will not repeat the basic facts of this case, they are to be found in a judgment I delivered before lunch R v Schneider No 1 [2010] NSWDC 6. Assuming that the reader has a familiarity with the facts to be found from that judgment I can say that Mr Usman was one of the doormen present on the night. He was involved in a fight and so did not see the person holding the pistol at the time it was discharged. He was able to say, however, and has told police that before he became involved in the fight he saw a man with a pistol in his hand. The evidence suggests there was only ever one pistol produced that evening and so it is the Crown case that the person who produced the pistol and was seen by Mr Usman with the pistol in his hand is the one who discharged it. The Crown case is that that man was the accused.

3 In his statement to police Mr Usman described that person as being;

“about six foot five inches and had a muscular build. He was probably mid-twenties, he had tattoos on his left arm, they came down to the end of his bicep. The tattoos looked like flames and were red and yellow. He had a goatee which was brown. His hair was brown and short, but spiky with blond tips. He appeared to be Lebanese.”

That statement was made on 12 February 2006.…