R v Amir EL MOSTAFA; R v Saleh KHODR [2007] NSWDC 392

New South Wales District Court

CITATION: R v Amir EL MOSTAFA; R v Saleh KHODR [2007] NSWDC 392

JUDGMENT DATE: 18 April 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The evidence is admissible

CATCHWORDS: CRIMINAL LAW - jury trial - application to call evidence of visual identification pursuant to s 114 of the Evidence Act 1995 - whether the evidence amounted to visual identification evidence - whether the accused refused to take part in an identification parade

LEGISLATION CITED: Evidence Act 1995

Regina PARTIES: Amir El Mostaga Saleh Khodr

FILE NUMBER(S): 2006/11/0574; 2006/21/0047

Mr Calvert for the Director of Public Prosecutions COUNSEL: Mr Simpson for Mr El Mostafa Dr Webb for Mr Khodr

JUDGMENT

1. The Crown Prosecutor intends to call certain witnesses in this trial who will identify the accused, Mr El Mostafa, by evidence that they saw him at the scene of the alleged riot. The evidence of identification will be by description and also, I understand, by evidence that they recognised him by one means or another. On this application the Crown Prosecutor tendered statements from those witnesses which I marked VDEM 33. In addition Detective Whitton was called and gave evidence.

2. The Crown Prosecutor submitted that the evidence did not amount to visual identification evidence. I disagree with that submission. The evidence clearly amounts to identification evidence relating to an identification based wholly or partly on what the respective witnesses saw.

3. The Crown Prosecutor submitted that in accordance with s 114(2) of the Evidence Act 1995, that he was released from such evidence being inadmissible because it would not have been reasonable to have held a parade. I reject that submission because the police in fact proceeded to use photographic identification so that they clearly regarded it as important to take the investigation a further step.