Regina v Amir Ibrahim El Mostafa & Saleh Khodr [2007] NSWDC 322

New South Wales District Court

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

Regina PARTIES: Amir Ibrahim El Mostafa Saleh Khodr

FILE NUMBER(S): 06/11/0574; 06/21/0047

Mr Calvert for the Crown COUNSEL: Mr Simpson for Mr El Mostafa Dr Webb for Mr Khodr

- 1 -

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.