R v Hawi & ors (No 11) [2011] NSWSC 1657

R v Hawi & ors (No 11) [2011] NSWSC 1657

Ms Brown's proposed identification of Mahmoud Hawi had minimal probative value because the striking features of her description of the single man wielding a bollard, especially height, dark trousers, hair and tattoos, were substantially more consistent with Mr Menzies than with Mr Hawi. There was a danger that the jury would misuse the evidence by treating her identification of Mr Hawi as evidence that he was another bollard wielder despite her description being of one man and despite Mr Hawi's presence in the general vicinity not being disputed. That danger of unfair prejudice outweighed the minimal probative value, so the evidence was inadmissible.

Jurisdiction
Australia
Judgment Date
29 June 2011
Procedural Posture
Common Law Criminal / Procedural Ruling on Admissibility of Identification Evidence on a Voir Dire
Outcome
Evidence inadmissible
Legal Topics
['admissibility' 'relevance' 'identification Evidence' 'unfair Prejudice' 'probative Value' 'section 137 Evidence Act 1995']
['criminal Law' 'evidence'] ['admissibility' 'relevance' 'identification Evidence' 'unfair Prejudice' 'probative Value' 'section 137 Evidence Act 1995']

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Procedural Posture

Common Law Criminal / Procedural Ruling on Admissibility of Identification Evidence on a Voir Dire

Legal Issues

  1. 1 ["Whether Ms Brown's proposed evidence identifying Mahmoud Hawi as the man she saw wielding a bollard was admissible." 'Whether the probative value of the proposed identification evidence was outweighed by the danger of unfair prejudice under s 137 Evidence Act 1995.' "Whether the jury might impermissibly use the evidence to conclude that Mr Hawi was another bollard wielder despite the witness's description being inconsistent with his appearance."]

Ratio Decidendi

Ms Brown's proposed identification of Mahmoud Hawi had minimal probative value because the striking features of her description of the single man wielding a bollard, especially height, dark trousers, hair and tattoos, were substantially more consistent with Mr Menzies than with Mr Hawi. There was a danger that the jury would misuse the evidence by treating her identification of Mr Hawi as evidence that he was another bollard wielder despite her description being of one man and despite Mr Hawi's presence in the general vicinity not being disputed. That danger of unfair prejudice outweighed the minimal probative value, so the evidence was inadmissible.

Court Disposition

Evidence inadmissible

Orders

  • ['The proposed evidence by Ms Brown that the person she described as striking the deceased with a bollard was the accused Mahmoud Hawi is inadmissible.']