Regina v Amir Ibrahim El Mostafa & Saleh Khodr

[2007] NSWDC 322

CITATION:	Regina v Amir Ibrahim El Mostafa & Saleh Khodr [2007] NSWDC 322 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17/04/2007
JUDGMENT DATE:	17 April 2007
JURISDICTION:	District Court of NSW
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Application to exclude evidence under ss135 and 137 of the Evidence Act.
CATCHWORDS:	Evidence - Admissibility of photographic evidence - Prejudicial effect upon jury - Probative value to the Crown
LEGISLATION CITED:	ss135 and 137 Evidence Act 1995
PARTIES:	Regina Amir Ibrahim El Mostafa Saleh Khodr
FILE NUMBER(S):	06/11/0574; 06/21/0047
COUNSEL:	Mr Calvert for the Crown Mr Simpson for Mr El Mostafa Dr Webb for Mr Khodr

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JUDGMENT

1 Mr Simpson, on behalf of his client, applies to me for a ruling to refuse to admit the photographic identification evidence of his client. That application has been made in this instance under s 135 and s 137 of the Evidence Act 1995. Mr Simpson argued that there were two issues for me to consider.

2 The first was this: that the witnesses who purported to identify his client by reference to the photographs had all already made statements regarding what they saw at the scene of the riot and nominated a person Abu Fajr by reference to them recognising him, including by a description of his clothing.

3 In this regard Mr Simpson submitted that by the time of the arrest, his client was a suspect and the investigatory stage had finished, so that the purported identification by the photographic array could take the matter no further for the Crown, hence the probative value was very low, but, on the other hand, prejudicially a jury may overestimate the value of such evidence. He submitted that if the photographic array had included men in traditional Muslim male clothing similar to that described by the witnesses in their earlier statements, then the photographic array might have had more weight because it would have been relevant to the means by which those witnesses previously or initially identified the person known as Abu Fajr.

4 Mr Simpson's second argument was that the array of photographs was not a fair array. He submitted that his client was the only one looking down, that the image of his client in the photograph was smaller, it was not a random selection and the men depicted in the array were not in traditional clothes. Hence he said again the prejudicial effect is that the jury could overestimate the value of the photographic identification process. He compared VDEM 26, which was the photographic array in question, with VDEM 34, another photographic array which he said was demonstrably fairer.

5 The Crown Prosecutor argued that the probative value of the photographic identification evidence was high, for two reasons: the first was that this is a case where there is some confusion so far as the name of this particular accused is concerned. He has been referred to by more than one name, including in the court lists, and the purported identification of the person alleged to be him is by reference to yet another name Abu Fajr. Hence the Crown Prosecutor argues the probative value of the photographic identification is high, given that confusion.

6 As to the array, he argues that it was a good array of similar people presented in a similar way. He says that the array contains photographs of other men who are either looking downwards or sideways and in particular he refers to photograph number 20, where the man, not the accused, is looking arguably both sideways and downwards. I should add that the photograph of Mr Simpson's client in the array in VDEM 26 is photograph number 3.

7 I regard the probative value of the photographic identification evidence as relatively high. I agree with the Crown Prosecutor that, given the circumstance that this particular accused has been referred to by a number of names and in particular the circumstance that the purported recognition of this accused by witnesses at the scene is by reference to a description and a name which is a different name to this accused's given name, the probative value of this identification process is quite significant.

8 I do not regard the array as unfair. There are indeed differences in the photographs, but there are aspects of each photograph, or aspects of many of the photographs, which could be said to distinguish that particular photograph, so that the photograph of Mr El Mostafa being number 3 does not stand out particularly. In addition, there are other photographs where the person posing for the photograph is either looking sideways or downwards, although I acknowledge not as much as Mr El Mostafa. But I do not regard the array as an unfair array from which to present to witnesses for the purposes of this identification process.

9 So far as the clothing was concerned, the Crown Prosecutor submitted that the fact that none of the persons depicted in the array was wearing traditional male Muslim clothing, was a point in his favour. I am inclined to agree with that. Had Mr El Mostafa been depicted in the photograph in clothing similar to that described by the witnesses and even if the other members of the array had been so depicted, it would have provided additional data by which witnesses might have recognised the accused. Because the clothing aspect of the recognition was absent, this meant that recognition was limited to the face.

10 I do not think it likely that a jury will overestimate the value of the identification evidence, given the issue in the trial, or at least an aspect of the trial, about the name of this particular accused.

11 Accordingly, so far as section 135 of the Evidence Act is concerned I do not regard any unfair prejudice as substantially outweighing the probative value of the evidence. Indeed, I do not regard the evidence as having any unfair prejudice and I am of the same opinion so far as section 137 is concerned. Accordingly the application is refused.

oOo

29/04/2008 - Typographical error - Paragraph(s) 1