R v Mohammad Hadi Parivash [2014] NSWDC 62

R v Mohammad Hadi Parivash [2014] NSWDC 62

The identification evidence was obtained in contravention of s 3ZO(1) of the Crimes Act 1914 as the accused, who was available for an identification parade, was not offered this opportunity and the Crown failed to establish that it was unreasonable or impractical to do so. As such, under s 138 of the Evidence Act 1995, the evidence should not be admitted; the seriousness of the contravention and the vulnerability of detainees outweighed the probative value of the evidence in this case.

Jurisdiction
Australia
Judgment Date
22 May 2014
Procedural Posture
Criminal / Voir Dire on Admissibility of Identification Evidence
Outcome
Evidence inadmissible
Legal Topics
['admissibility of Evidence' 'identification Evidence' 'illegally Obtained Evidence' 'people Smuggling' 'institutional Recklessness']
['criminal Law'] ['admissibility of Evidence' 'identification Evidence' 'illegally Obtained Evidence' 'people Smuggling' 'institutional Recklessness']

Case Brief

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Procedural Posture

Criminal / Voir Dire on Admissibility of Identification Evidence

Legal Issues

  1. 1 ['Whether identification evidence obtained via a photo board is admissible, given alleged contravention of s 3ZO Crimes Act 1914 and s 138 Evidence Act 1995' 'Whether the probative value of the identification evidence is outweighed by prejudicial effect under s 137 Evidence Act 1995']

Ratio Decidendi

The identification evidence was obtained in contravention of s 3ZO(1) of the Crimes Act 1914 as the accused, who was available for an identification parade, was not offered this opportunity and the Crown failed to establish that it was unreasonable or impractical to do so. As such, under s 138 of the Evidence Act 1995, the evidence should not be admitted; the seriousness of the contravention and the vulnerability of detainees outweighed the probative value of the evidence in this case.

Court Disposition

Evidence inadmissible

Orders

  • ['The identification evidence sought to be led by the Crown is not admitted as it is contrary to s 138 of the Evidence Act.']