R v Smith (No.3) [2014] NSWSC 771

R v Smith (No.3) [2014] NSWSC 771

The identification evidence was refused because it arose from Mr Stein seeing a single photograph of the accused in a news article identifying him as a person sought by police, creating a real risk of unconscious displacement. Its probative value was relatively low, particularly because the accused admitted firing the fatal shot and the issue was self-defence, while the risk of unfair prejudice was very high. Under s 137 of the Evidence Act 1995, the danger of unfair prejudice far outweighed any probative value.

Jurisdiction
Australia
Judgment Date
03 June 2014
Procedural Posture
Criminal Proceeding on Indictment for Murder / Interlocutory Application Concerning Disputed Identification Evidence in Re Examination
Outcome
Crown application dismissed; leave to adduce the identification evidence refused.
Legal Topics
['identification Evidence' 'single Photograph Identification' 'displacement Effect' 'probative Value' 'unfair Prejudice' 'evidence Act 1995 S 137']
['criminal Law' 'evidence'] ['identification Evidence' 'single Photograph Identification' 'displacement Effect' 'probative Value' 'unfair Prejudice' 'evidence Act 1995 S 137']

Case Brief

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Procedural Posture

Criminal Proceeding on Indictment for Murder / Interlocutory Application Concerning Disputed Identification Evidence in Re Examination

Legal Issues

  1. 1 ['Whether the Crown should be granted leave to further re-examine Mr Stein with respect to his identification of the figure on Gidley Crescent.' 'Whether identification evidence arising from Mr Stein seeing a single photograph of the accused in an online news article should be admitted.' 'Whether, under s 137 of the Evidence Act 1995, the danger of unfair prejudice to the accused outweighed the probative value of the identification evidence.']

Ratio Decidendi

The identification evidence was refused because it arose from Mr Stein seeing a single photograph of the accused in a news article identifying him as a person sought by police, creating a real risk of unconscious displacement. Its probative value was relatively low, particularly because the accused admitted firing the fatal shot and the issue was self-defence, while the risk of unfair prejudice was very high. Under s 137 of the Evidence Act 1995, the danger of unfair prejudice far outweighed any probative value.

Court Disposition

Crown application dismissed; leave to adduce the identification evidence refused.

Orders

  • ['Leave to further re-examine Mr Stein with respect to his identification of the figure on Gidley Crescent is refused.']