Regina v Iyman Derbas and ors [2004] NSWSC 972

Regina v Iyman Derbas and ors [2004] NSWSC 972

The photograph procedure at the Crime Commission was picture identification evidence in the ordinary sense, but not picture identification evidence within s 115 because the photographs were not shown by police and were apparently not pictures kept for the use of police officers. It was therefore excluded from the definition of visual identification evidence in s 114, so s 114 did not apply and the evidence was admissible. If s 114 did apply, Derbas had previously refused an identification parade and no further offer was required. In relation to Cheikho, the evidence was also admissible because it was recognition of a man previously known to Mostyn as "Shaker". The probative value of the...

Jurisdiction
Australia
Judgment Date
23 August 2004
Procedural Posture
Criminal Proceedings / Ruling on Admissibility of Identification Evidence on the Voir Dire
Outcome
Evidence admitted
Legal Topics
['identification Evidence' 'picture Identification Evidence' 'visual Identification Evidence' 'identification Parade' 'unfair Prejudice' 'recognition Evidence']
['criminal Law' 'evidence'] ['identification Evidence' 'picture Identification Evidence' 'visual Identification Evidence' 'identification Parade' 'unfair Prejudice' 'recognition Evidence']

Case Brief

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Procedural Posture

Criminal Proceedings / Ruling on Admissibility of Identification Evidence on the Voir Dire

Legal Issues

  1. 1 ['Whether evidence of John Mostyn being shown photographs by the Crime Commission and what he said about them was admissible.' 'Whether the evidence complied with or was governed by ss 114 and 115 of the Evidence Act.' 'Whether Derbas needed to be offered a further identification parade before the photograph evidence could be admitted.' 'Whether the evidence should be excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice.' 'Whether the evidence relating to Cheikho was recognition evidence rather than identification evidence.']

Ratio Decidendi

The photograph procedure at the Crime Commission was picture identification evidence in the ordinary sense, but not picture identification evidence within s 115 because the photographs were not shown by police and were apparently not pictures kept for the use of police officers. It was therefore excluded from the definition of visual identification evidence in s 114, so s 114 did not apply and the evidence was admissible. If s 114 did apply, Derbas had previously refused an identification parade and no further offer was required. In relation to Cheikho, the evidence was also admissible because it was recognition of a man previously known to Mostyn as "Shaker". The probative value of the...

Court Disposition

Evidence admitted

Orders

  • ['The evidence of the witness Mostyn in relation to both Accused Derbas and Cheikho is admissible.' 'The evidence should not be excluded pursuant to s 137 of the Evidence Act.']