New South Wales Supreme Court CITATION : Regina v Iyman Derbas and ors [2004] NSWSC 972 HEARING DATE(S) : 23 August 2004 JUDGMENT DATE : 23 August 2004 JUDGMENT OF : Dunford J DECISION : Evidence admitted CATCHWORDS : CRIMINAL LAW - Evidence - identification - examination of photographs shown by Crime Commission - not pictures kept for use by police officers - whether picture identification evidence - prior refusal of identification parade - whether further offer required - whether unfair prejudice - WORDS and PHRASES - picture identification evidence LEGISLATION CITED : Evidence Act CASES CITED : R v Gee (2000) 113 A Crim R 376 Regina v Iyman Derbas PARTIES : Regina v Sham Zreika Regina v Mohamed Rustom Regina v Ahmed Cheikho aka Ahmed Ebaid FILE NUMBER(S) : SC 70240/03; 70242/03; 70093/03; 70241/03 J L A Bennett SC - Crown G J Drake - Derbas COUNSEL : L M McSpedden - Zreika P A Beale/A Moen - Rustom C Simpson - Cheikho S Kavanagh - Crown William OBrien - Derbas SOLICITORS : Macelbing Mednis & Associates - Zreika Sir Owen Dixon Chambers - Rustom Voros Lawyers - Cheikho - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J MONDAY, 23 AUGUST 2004 70240/03 - REGINA v IYMAN DERBAS 70242/03 - REGINA v SHAM ZREIKA 70093/03 - REGINA v MOHAMED RUSTOM 70241/03 - REGINA v AHMED CHEIKHO JUDGMENT - on admissibility of identification evidence re witness Mostyn; see p 505 of transcript 1 HIS HONOUR: The next witness proposed to be called by the Crown is John Mostyn, who was at 4 January 2002 another prisoner at Parklea Correctional Centre. On 9 August 2002, he answered questions at the Crime Commission and described various events and persons that he saw and was then shown somewhere between six and twelve photographs, possibly seven, all of which, with one exception, had numbers appearing on their face. 2 He identified a photo of the Accused Derbas as the person he had previously referred to in his evidence to the Crime Commission as looking like an Islander, and he identified the unnumbered photograph, which was a photo of the Accused Cheikho, as the person he had previously referred to in his evidence as "Shaker". Later that day, he made a statement to the police repeating what he had said to the Crime Commission and including the fact that he had been shown the photographs and had "identified" the persons in them in the manner I have said. 3 Objection is taken to the evidence of his being shown the photographs and what he said about them to the Crime Commission and to his later identification of the same photographs to the police. The Crown, as I understand it, does not press the identification of the photographs to the police as evidence of identification of either of the two accused to whom I have referred, but merely as identifying the photographs which he had previously been shown by the Crime Commission, so the issue is whether evidence can or should be given of what he said and indicated when he was first shown the photographs. 4 It is submitted that the evidence does not comply with s 115 of the Evidence Act and, alternatively, that it should be excluded as carrying the risk of unfair prejudice within the meaning of s 137 of that Act. Identification evidence is defined in the Dictionary to the Act, and one then turns to ss 114 and 115. Section 115(1) defines "picture identification evidence" as being 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, and the succeeding subsections of the section make it clear that what is being referred to is identification to police of photographs shown to the prospective witness by police. These photos were not shown to the witness by police and what was shown were not apparently pictures kept for the use of police officers. Accordingly, s 115 does not apply to this evidence. 5 When one turns to s 114, "visual identification evidence" is defined as meaning identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence (my underlining). 6 The first question which therefore arises is whether the process that took place was picture identification evidence. In my view, it clearly was picture identification evidence because it was identification from the process of being shown pictures. It was not picture identification evidence within the meaning of s 115, but the definition of "picture identification evidence" in s 115 is only a definition for the purposes of that section (see the first three words of subs (1) of that section). 7 It follows that the definition in s 115 of "picture identification evidence" is not relevant to the construction of the same words in s 114(1) and, accordingly, the procedure was "picture identification evidence" for the purposes of s 114, and so is excluded from the definition of "visual identification evidence" in s 114, and s 114 has no application and the evidence is admissible. 8 However, if I am wrong in this conclusion, in the case of the Accused Derbas, he had been offered an identification parade and refused to take part in such a parade. The evidence to this effect comes from the electronically recorded interview, a transcript of which is Exhibit C on the voir dire. He was asked, Question 20, "...do you agree to taking part in an identification parade", and his answer was "no comment". It can be argued that this was not an express refusal, but in the context where he had been warned he was not required to answer questions and answered "no comment" to a large number of questions, I construe his answer to that question as a refusal to take part in an identification parade. 9 Mr Drake on his behalf has submitted that any refusal to take part in an identification parade occurred on 5 January 2002, the day after the death of Assad Barakat, but this photo identification procedure at the Crime Commission did not take place until 9 August 2002 and, accordingly, that he should have been again offered the chance of an identification parade. I see no reason why this should be so. He had been offered an identification parade shortly after the events in question. He had, as I have held, refused. There was no reason, in my view, why he needed to be offered another one. It may have been better if he had been, but if s 114 applied at all, I am satisfied its requirements had been met. I am, therefore, satisfied that the evidence of John Mostyn relating to the accused Derbas is admissible. 10 Mr Drake then submits that it should be excluded pursuant to the provisions of s 137 of the Act on the grounds that its probative value is outweighed by the danger of unfair prejudice to the accused. He submits that there is no detailed evidence of the procedure that was followed. There is no evidence that Mr Tim O'Connor, the officer of the Crime Commission who conducted the questioning and showed the photographs, will give evidence, there is some doubt as to the precise number of photographs shown and no evidence of whether there was any evidence or direction given to the witness as to which photographs he should choose. He, accordingly, submits that the admission of the evidence would be unfairly prejudicial to his client. 11 There is some evidence as to how the photographic procedure occurred, and that is to be found in the evidence of Mr Mostyn in cross-examination at the committal where, having told the Commission what he had told them about what he claimed he had seen, he was asked, (p 44 of 5 November 2003), whether he could describe the persons referred to and he replied, "Is there any photos and I will show you which ones." He then identified the persons in the photos, as he described in paras 29 to 38 of his statement to the police of 9 August 2002. 12 There are what might be called weaknesses in the procedure, but these are matters that can be explored in cross-examination. It is true he was only shown a small number of photographs, but this is a matter to which the jury's attention can be directed. The evidence has probative value as it purports to identify a person present at the time of the killing of the deceased. It is certainly prejudicial, but I am not satisfied that when the appropriate directions are given it will be unfairly prejudicial, in the sense that there is any danger that the jury may misuse the evidence. 13 Sections 116 and 165(1)(b) require that extensive directions and warnings be given about the dangers of identification evidence and such warnings will be given at the appropriate time. 14 Objection is also taken to similar evidence in relation to the Accused Cheikho. For the reasons already given, I am satisfied that s 114 does not apply, but if I am wrong, I am satisfied that there is a further reason it does not apply, because it is not strictly identification evidence but evidence of recognition by the witness in a photograph of a man previously known to him: compare R v Gee (2000) 113 A Crim R 376 at para [38]. In the earlier part of his statement, he described what he had seen the person known to him as Shaker doing, whom he described as being from the same yard, that is the units 1B/1D yard, and what he said when shown the photograph was merely an identification of the person whom he had previously known by the name "Shaker" and whom he had recognised playing the part he allegedly claimed he played on 4 January. I am satisfied, therefore, that the evidence in relation to Cheikho is admissible. 15 Mr Simpson also submits this evidence should be excluded pursuant to s 137, and he takes the same points as Mr Drake in relation to the apparent weaknesses in the procedure and what has been described as "the lack of transparency"; but he also makes two further objections in relation to the particular photograph. First of all, that it is smaller, that is the actual photograph is smaller than the other photographs which he was shown; and secondly, that it was unnumbered. These considerations would be of greater significance if he was being asked to identify a person not previously known to him, but as I have said this was an case of recognition rather than identification, and in fact the photo numbered 5, although not as wide, is no taller than the photo of the Accused Cheikho; and the fact that it was not numbered in the circumstances as described by the witness Mostyn in his evidence at the committal does not appear to have any significance, although once again these are matters that will properly be drawn to the jury's attention in counsel's address and in my summing-up when giving the necessary warnings concerning identification evidence. 16 For these reasons, I am satisfied that the evidence of the witness Mostyn in relation to both Accused Derbas and Cheikho is admissible, and that it should not be excluded pursuant to s 137. I rule accordingly. ********** Last Modified: 10/20/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.