R v Smith (No.3) [2014] NSWSC 771

Supreme Court New South Wales

Medium Neutral Citation: R v Smith (No.3) [2014] NSWSC 771 Hearing dates: 21/05/2014 Decision date: 03 June 2014 Jurisdiction: Criminal Before: Garling J Decision: (1) Leave to further re-examine Mr Stein with respect to his identification of the figure on Gidley Crescent is refused. Catchwords: CRIMINAL LAW - evidence - identification evidence - modes of identification - other visual identification - single photograph - accompanying online news article CRIMINAL LAW - evidence - identification evidence - admissibility - single photograph - unreliability - displacement effect CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - Evidence Act 1995; s 137 - prejudicial evidence - probative value - unfairly prejudicial to accused - whether danger of unfair prejudice to the accused outweighs probative value Legislation Cited: Evidence Act 1995 Cases Cited: Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 R v Skaf [2004] NSWCCA 37 Category: Interlocutory applications Parties: The Crown Graham Smith (Accused) Representation: Counsel: Mr M Barr (Crown) Ms K Traill (Accused) Solicitors: Director of Public Prosecutions (Crown) SCT Lawyers (Accused) File Number(s): 2013/23883

Judgment - Disputed Identification Evidence 1The Crown has sought leave in the re-examination of Mr Jason Stein to lead identification evidence. Counsel for the accused opposes the introduction of the identification evidence on the basis that the evidence has little, if any, probative value, and there is significant unfair prejudice to the accused if the evidence is admitted. 2For the reasons which follow, I have decided to reject the evidence, and accordingly, dismiss the application of the Crown.