CITATION: R v Yassar BAKIR [2009] NSWDC 12
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 12 February 2009
JUDGMENT DATE:
13 February 2009JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The identification evidence of Mrs Moore is excluded CATCHWORDS: Criminal law - Voir Dire - Judgment - Admissibility of evidence - Probative value - Picture identification - Improper conduct of Prosecutor causes unfair prejudice LEGISLATION CITED: Evidence Act 1995 CASES CITED: Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612 at [12]
R v Blick (2000) 111 A Crim R 236 [2000]; NSWCCA 61
R v Fisher [2001] NSWCCA 380TEXTS CITED: Australian Law Reform Commission (ALRC 26 vol1, para 644) PARTIES: The Crown
Yassar BakirFILE NUMBER(S): DC 08/11/0875 COUNSEL: N Williams (Crown)
B Walker SC (Accused)
A J Kimmins (Accused)SOLICITORS: NSW DPP
Ryan & Bosscher Lawyers
Introduction
1 On 15 November 2007 Mrs Kathleen Moore was sitting in a four-wheel drive motor vehicle in Norton Street Leichhardt. She heard a number of loud bangs and saw three men. One of them handed a pistol to another man, who then fired a shot. The Crown case is that the man who fired the pistol was the accused Yassar Bakir. He has been charged with a number of offences including an offence of shooting with intent to murder Mahmoud Hawi. The Crown wants to rely on the evidence of Mrs Moore as to the identity of the shooter. The Crown case is that she identified a photograph of the accused as being the man whom she saw shooting the pistol.
2 This judgment concerns the admissibility of Mrs Moore’s evidence. It is argued by Mr Walker SC and Mr Kimmins on behalf of the accused that the probative value of Mrs Moore’s evidence is outweighed by the danger of unfair prejudice, requiring the exclusion of the evidence under sections 135 and 137 Evidence Act. It is also argued that the evidence should be excluded because of what is said to be the proper interpretation of section 115 Evidence Act.
Mrs Moore is shown some photographs
3 Some 5 ½ months after the events of 15th of November 2007, and well after the arrest of the accused, a police officer travelled to Queensland for the purposes of showing a number of photographs to Mrs Moore. One of them, number 7, was a photograph of the accused. Quite appropriately the process was video recorded. On the voir dire before me the Crown tendered a DVD containing the video recording. This was played in court. A transcript of the conversation between the police officer and Mrs Moore was also prepared and this too was tendered. However, as is almost always the case, a proper understanding of what occurred can only be obtained by viewing and listening to the recording. The transcript of course records only the words, and in some cases the proper…
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- Case
- [2009] NSWDC 12
- Decision Date
CaseChat Overview and Summary
The court was required to address several key legal issues, including the assessment of the probative value of the identification evidence against its potential prejudicial impact. Furthermore, it had to consider whether the conduct of the prosecutor during the voir dire process unduly influenced the jury, potentially leading to an unfair prejudice against the appellant. The court was also required to balance the need to ensure a fair trial against the necessity of allowing relevant evidence to be presented.
In its judgment, the Supreme Court found that the identification evidence provided by Mrs Moore was of limited probative value, given the circumstances of the identification. The court determined that the prosecutor's conduct during the voir dire process had introduced elements of unfairness, which could have prejudiced the jury against the appellant. The court concluded that the prejudicial effect of this improper conduct outweighed the probative value of the identification evidence, leading to its exclusion. As a result, the court ruled that the identification evidence was inadmissible.
The final orders of the court were that the identification evidence provided by Mrs Moore was excluded from the trial. This ruling significantly impacted the prosecution's case, potentially weakening their ability to establish the identity of the appellant as the perpetrator of the alleged crimes.
Orders
Orders of the court
The identification evidence of Mrs Moore is excluded
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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