Regina v Amir Ibrahim El Mostafa

[2007] NSWDC 326

Reported Decision: 6 DCLR (NSW) 305

District Court

CITATION:	Regina v Amir Ibrahim El Mostafa [2007] NSWDC 326
HEARING DATE(S):	Please see Regina v El Mostafa [2007] NSWDC 219 for hearing dates.
JUDGMENT DATE:	17 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Picture identification evidence is admissible under s115 of the Evidence Act 1995.
CATCHWORDS:	Criminal law - Admissibility of evidence - Picture identification evidence
LEGISLATION CITED:	s115 Evidence Act 1995
CASES CITED:	Regina v McKellar [2000] NSWCCA 532 Regina v Darwiche & Ors [2006] NSWSC 942
PARTIES:	Regina Amir Ibrahim El Mostafa
FILE NUMBER(S):	06/11/0574
COUNSEL:	Mr Calvert for the Crown Mr Simpson for Amir Ibrahim El Mostafa
SOLICITORS:	Ms Flemming for the NSW DPP Ms Duffy for Amir Ibrahim El Mostafa

JUDGMENT

1. This is a case in which part of the evidence against the accused Mr El Mostafa involves evidence from witnesses who have purported to identify him from photographs shown to them by police officers. Mr Simpson, on behalf of his client, seeks a ruling that that process of identification is not admissible pursuant to s 115(5) of the Evidence Act 1995. Section 115(1) provides:

“In this section: 'picture identification evidence' means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.”

2. The section then goes on to specify various circumstances in which such picture identification is not admissible. This case is clearly a case in which, so far as this process of identification is concerned, the process amounted to picture identification evidence. Mr Simpson's reliance, as I have said, is upon subs (5) which provides as follows:

“Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:

(a) the defendant refused to take part in an identification parade; or

(b) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into custody; or

(c) it would not have been reasonable to have held an identification parade that included the defendant.”

3. Mr Simpson frankly acknowledged - and correctly in my opinion - that his application depended upon satisfying me that his client was "in the custody of a police officer of the police force investigating the commission of the offence" at the relevant time. It is common ground that at the time the picture identification evidence was obtained in this case, Mr El Mostafa was in the custody of the Department of Corrective Services or whatever the relevant authority managing corrective centres is.

4. I am not satisfied that Mr El Mostafa was in the custody of a police officer of the police force investigating the commission of the offence at the relevant time. I hold that opinion for these reasons: First, I note from the dictionary to the Evidence Act that for the purposes of the New South Wales Act "a police officer" relevantly means a member of the police force of this state. Hence it is clear that the custody in which, so far as the definition of "police officer" is concerned, a defendant must be held, is that of a police officer of this state.

5. Secondly, in my opinion the fact that Mr El Mostafa was in the custody of Corrective Services authorities must exclude him from being in the custody of a police officer of the police force investigating the commission of the offence. There is no way in which it can be said that the Department of Corrective Services was charged with investigating the commission of the offence in this question. That is clearly the province of the police force. To my mind the wording of the subsection by reference to "a police officer", by further reference to "a police force" and by additional reference to "force investigating the commission of the offence" leaves no doubt that a person in the custody of prison authorities could not fall within that provision.

6. I am reinforced in my view by a judgment of the Court of Criminal Appeal in Regina v McKellar [2000] NSWCCA 532. Although that case did not concern the issue which I have to determine, Howie J in delivering the judgment of the court in that case said at [34] that it seemed plain to him that the normal meaning should be applied to the words "in the custody of a police officer". I appreciate that his Honour was referring to the nature of the custody, rather than the nature of the authorities who held the prisoner in custody in that case.

7. However, Mr Simpson has also drawn my attention to a judgment of Bell J of the Supreme Court in Regina v Darwiche & Ors [2006] NSWSC 942. In that case it appears that the issue before me was raised because the prisoner in that case was in custody at a correctional centre. At [33] her Honour said:

“ The plain words of s 115(5) do not seem to me to admit of the construction for which Mr Segal contended. On 1 April 2004 the accused was in custody, but he was not in the custody of a police officer of the police force investigating the commission of the offence with which he has been charged .”

I record my appreciation for Mr Simpson drawing my attention, entirely appropriately, to that decision which as I said reinforces my own opinion.

8. Accordingly, in my opinion s 115 of the Evidence Act does not render inadmissible the picture identification evidence sought to be led by the Crown in this case.

oOo