R v Al Batat & Ors (No 22) [2020] NSWSC 1352

R v Al Batat & Ors (No 22) [2020] NSWSC 1352

The identification procedure evidence was inadmissible. It should have been elicited in chief if admissible at all, because the Crown knew a psychiatric credibility attack was predictable. The evidence did not rationally re-establish Mr Weng's credibility: the jury already knew he had made the same assertions the day after the shooting, and the jury could not properly assess from the video whether he was affected by mental illness. Although the court was satisfied that s 108(3)(b) was broad enough to cover non-deliberate fabrication or reconstruction by hallucination or illusion, the evidence had only slight probative value, carried significant danger of unfair prejudice, and risked undue...

Jurisdiction
Australia
Judgment Date
08 October 2020
Procedural Posture
Criminal Trial; Procedural and Evidence Ruling / Ruling During Trial on Admissibility of Identification Procedure Evidence Sought in Re Examination and Through Later Police Witnesses
Outcome
Evidence of two identification procedures undertaken by Mr Jian Feng Weng was held inadmissible and could not be adduced in re-examination or later through police witnesses.
Legal Topics
['re Examination' 'credibility Evidence' 'prior Consistent Statements' 'identification Procedures' 'psychiatric Illness of Witness' 'probative Value and Unfair Prejudice' 'undue Waste of Time']
['criminal Law' 'evidence'] ['re Examination' 'credibility Evidence' 'prior Consistent Statements' 'identification Procedures' 'psychiatric Illness of Witness' 'probative Value and Unfair Prejudice' 'undue Waste of Time']

Case Brief

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Procedural Posture

Criminal Trial; Procedural and Evidence Ruling / Ruling During Trial on Admissibility of Identification Procedure Evidence Sought in Re Examination and Through Later Police Witnesses

Legal Issues

  1. 1 ['Whether evidence of two identification procedures undertaken by Mr Jian Feng Weng could be adduced in re-examination after cross-examination attacked his credibility by reference to schizophrenia, hallucinations and his opportunity to observe.' "Whether the identification procedure evidence was capable of rationally re-establishing Mr Weng's credibility." 'Whether the evidence was admissible under s 108 of the Evidence Act 1995 (NSW) and, if so, whether it should be excluded under ss 135 and 137 or leave refused under s 192.']

Ratio Decidendi

The identification procedure evidence was inadmissible. It should have been elicited in chief if admissible at all, because the Crown knew a psychiatric credibility attack was predictable. The evidence did not rationally re-establish Mr Weng's credibility: the jury already knew he had made the same assertions the day after the shooting, and the jury could not properly assess from the video whether he was affected by mental illness. Although the court was satisfied that s 108(3)(b) was broad enough to cover non-deliberate fabrication or reconstruction by hallucination or illusion, the evidence had only slight probative value, carried significant danger of unfair prejudice, and risked undue...

Court Disposition

Evidence of two identification procedures undertaken by Mr Jian Feng Weng was held inadmissible and could not be adduced in re-examination or later through police witnesses.

Orders

  • ['The evidence of two identification procedures undertaken by the witness, Mr Jian Feng Weng, is inadmissible.']