Regina (C'Wealth) v Elomar & Ors [No 6] [2008] NSWSC 1445

Regina (C'Wealth) v Elomar & Ors [No 6] [2008] NSWSC 1445

Assuming that s 3ZP of the Crimes Act 1914 (Cth) was breached, certainly in relation to the Cooley identification and possibly in relation to the Bodkin identification, the evidence was admissible under s 138 of the Evidence Act 1995 because its probative value and importance to the Crown case were high, the charged offence was of the highest seriousness, the contraventions resulted from ignorance, inadvertence and carelessness rather than deliberate or reckless conduct, there was no intention to deny statutory rights, the integrity of the identification process was not affected, and there was no real suggestion that proper procedures would have produced a different result.

Jurisdiction
Australia
Judgment Date
16 December 2008
Procedural Posture
Criminal / Application During Trial to Exclude Identification Evidence
Outcome
Evidence not excluded and may be admitted at trial.
Legal Topics
['identification Evidence' 'photographic Identification Arrays' 'breach of S 3 ZP of Crimes Act 1914 (cth)' 'discretion to Exclude Improperly or Illegally Obtained Evidence Under S 138 Evidence Act 1995' 'joint New South Wales and Federal Police Operations']
['criminal Law' 'evidence'] ['identification Evidence' 'photographic Identification Arrays' 'breach of S 3 ZP of Crimes Act 1914 (cth)' 'discretion to Exclude Improperly or Illegally Obtained Evidence Under S 138 Evidence Act 1995' 'joint New South Wales and Federal Police Operations']

Case Brief

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Procedural Posture

Criminal / Application During Trial to Exclude Identification Evidence

Legal Issues

  1. 1 ['Whether the photographic identification procedures breached s 3ZP of the Crimes Act 1914 (Cth) by failing to undertake separate identification processes for each suspect.' 'Whether, assuming a breach or possible breach of s 3ZP, the identification evidence should be excluded under s 138 of the Evidence Act 1995.' 'Whether the desirability of admitting the identification evidence outweighed the undesirability of admitting evidence obtained in contravention of an Australian law.']

Ratio Decidendi

Assuming that s 3ZP of the Crimes Act 1914 (Cth) was breached, certainly in relation to the Cooley identification and possibly in relation to the Bodkin identification, the evidence was admissible under s 138 of the Evidence Act 1995 because its probative value and importance to the Crown case were high, the charged offence was of the highest seriousness, the contraventions resulted from ignorance, inadvertence and carelessness rather than deliberate or reckless conduct, there was no intention to deny statutory rights, the integrity of the identification process was not affected, and there was no real suggestion that proper procedures would have produced a different result.

Court Disposition

Evidence not excluded and may be admitted at trial.

Orders

  • ['The identification evidence should not be excluded and may be admitted at trial.']