Regina v Amir Ibrahim El Mostafa [2007] NSWDC 327

New South Wales District Court

CITATION: Regina v Amir Ibrahim El Mostafa [2007] NSWDC 327

HEARING DATE(S): Please see the judgment of Regina v Amir Ibrahim 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: Evidence is admissible

CATCHWORDS: Criminal law - Admissibility of evidence - Probative value and prejudice of evidence

LEGISLATION CITED: ss135, 137 Evidence Act 1995

CASES CITED: Papakosmas v The Queen (1999) 196 CLA 297 R v BD (1997) 94 ACrimR 131

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. Mr Simpson submits that I should refuse to admit evidence of the polling booth demonstration which was in the form of statements and photographic evidence. His submission was based upon s135 and s137 of the Evidence Act 1995. Essentially the arguments in support of both applications was the same.

2. Mr Simpson argued that the probative value of the evidence was not particularly high. He argued that his client may or may not be a protester. However, it seems to me that in light of the evidence of Musadek Al Zargani in exhibit VDEM 16 that it is clear that Mr El Mostafa had views about the election which were contrary to those partaking in the voting procedure.

3. I therefore agree with the crown that the probative value of this evidence is high, particularly given the Crown case that the riot was the result of the combination of three factors, one of which was the political element of the voting in the Iraqi elections. Mr Al Mostafa's presence at the voting in the elections, as demonstrated in the photographs, provides him with a motive to be in the riot and therefore makes more explicable his alleged participation in the riot. I should add when I use the phrase "as demonstrated in the photographs" that in my view it is open to a jury to conclude that the photographs depict Mr El Mostafa.