Regina v Amir Ibrahim El Mostafa [2007] NSWDC 326

Reported Decision : 6 DCLR (NSW) 305

New South Wales 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: