R v Yassar BAKIR [2009] NSWDC 12

R v Yassar BAKIR [2009] NSWDC 12

Mrs Moore’s identification evidence was excluded because the probative value was low and the danger of unfair prejudice—due to improper prosecutorial conduct influencing the witness's certainty—was such that no judicial direction could sufficiently guard against risk of the jury giving undue weight to the tainted evidence. Thus, exclusion under ss 135 and 137 of the Evidence Act 1995 was required.

Parties
Prosecution: The Crown; Accused: Yassar Bakir
Jurisdiction
Australia
Judgment Date
13 February 2009
Procedural Posture
Criminal / Voir Dire on Admissibility of Identification Evidence
Outcome
Identification evidence of Mrs Moore excluded from trial.
Legal Topics
Admissibility of Identification Evidence, Voir Dire, Picture Identification, Unfair Prejudice, Prosecutorial Conduct
Criminal Law Evidence Admissibility of Identification Evidence Voir Dire Picture Identification Unfair Prejudice Prosecutorial Conduct

Case Brief

Summary, issues, holding and outcome

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Parties

The Crown

Prosecution

Yassar Bakir

Accused

Procedural Posture

Criminal / Voir Dire on Admissibility of Identification Evidence

Legal Issues

  1. 1 Whether the identification evidence of Mrs Moore should be excluded under ss 135 and 137 of the Evidence Act 1995 due to unfair prejudice outweighing probative value
  2. 2 Impact of prosecutorial conduct on witness certainty and evidence reliability
  3. 3 Interpretation and application of s 115 Evidence Act concerning refusal to participate in an identification parade

Ratio Decidendi

Mrs Moore’s identification evidence was excluded because the probative value was low and the danger of unfair prejudice—due to improper prosecutorial conduct influencing the witness's certainty—was such that no judicial direction could sufficiently guard against risk of the jury giving undue weight to the tainted evidence. Thus, exclusion under ss 135 and 137 of the Evidence Act 1995 was required.

Court Disposition

Identification evidence of Mrs Moore excluded from trial.

Orders

  • The identification evidence of Mrs Moore is excluded.