In this context, it is relevant to observe that the accused's case is that it is a reasonable possibility that L was one of the gunmen. Both his reliability and his credibility would undoubtedly be subject to vigorous attack. The material to which I have just referred would tend to suggest that L is no stranger to violence. Moreover it would clearly be capable of affecting an assessment of his overall credibility.
16 It will be immediately apparent that some of these matters are of greater significance than others. None of them could, by themselves, be regarded as decisive. In fact I adverted to a number of them when I rejected the application which was made before the jury was empanelled. Of course those matters must now be re-evaluated in the light, not only of the fresh material that is now available, but also in the context of the overall Crown case as it has now emerged. I then had regard (as I do so now) to the relevant authorities which refer to the dangers associated with identification evidence and in particular to its seductive effect. See generally Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 556; Festa v The Queen (2001) 185 ALR 394. Not only does experience suggest that jurors may give such evidence more weight than is warranted, but also that such evidence is given by witnesses with greater assurance than the circumstances may justify. See R v Marshall (2000) 113 A Crim R 190. Furthermore I remind myself that in considering the possible application of ss 135 and 137 of the Evidence Act, I must have regard to the plain words of the sections and to the authorities which guide their interpretation. I must, for example, perform the weighing exercise which is mandated by s 137. See R v Blick (2000) 111 A Crim R 326. I need also to consider whether any such concerns as to the asserted frailties of the evidence as may be reasonably entertained, can be adequately met by giving appropriate warnings. In doing so, I must of course make an assessment of the cogency of the evidence in the overall context of the case. See R v Tugaga (1994) 74 A Crim R 190.
17 As McHugh J said in Festa:
In exercising the discretion to exclude positive identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. (at 409)
18 As I have said, I have now had the very considerable advantage of hearing the Crown case. It is unnecessary to refer to it in any great detail. It is not without present significance however that, in addition to L, a number of witnesses who were called in the Crown case were quite capable upon the evidence, of having been one of the gunmen. Prominent amongst those persons were of course D and his brother, T. Notwithstanding their denials, it is clear from the evidence that each played a significant role in organising groups of their friends to attend the railway station in anticipation of a fight with Lebanese boys. It is apparent that they did so in retaliation for injuries which had been inflicted upon D earlier in the week.
19 Each of them pleaded guilty to an affray by reason of his participation in the fight. At their sentencing proceedings, the Crown specifically conceded that the basis upon which each of them did so was that he had nothing to do with the shooting. D nevertheless acknowledged that he could not explain the presence of gun shot residue upon the clothing he was wearing on the day of the incident. T's DNA was located under the fingernails of the deceased. It was also located upon a bottle found at the scene of the shooting. His explanation for its presence there was implausible in the extreme. Each of them was arrested a few days after the incident as they attempted to board a flight to Vietnam.
20 The evidence of D and T was entirely unconvincing. The explanations which they gave as to why they were at Bankstown Railway Station on the day in question were patently false. The evidence of their own sister was at odds with their accounts. The jury would be well entitled to infer that they each had intimate knowledge of the circumstances of the shooting, and in all likelihood some degree of involvement in it. Intercepted material from internet chat lines between D and HN only serves to strengthen such an inference in respect of D. T's denials as to his use of a mobile phone just before the incident, and the fact that he was wearing a cap with a logo which matched the description of the cap worn by the gunman given by an independent eyewitness, give rise to a similar inference in his case.
21 KN's DNA was found on a broken bottle at the scene in circumstances which are entirely consistent, especially in view of the evidence of a number of independent eyewitnesses, with his having joined in the fight just before the fatal incident. He was totally unable to explain the presence of his DNA upon the bottle. Moreover he was in possession of the red Suzuki, which both parties accept was the "getaway car". Immediately after the incident, an independent eyewitness observed two Asian males in it as it was driven away from the scene in an erratic manner. KN then arranged for the vehicle to be spray painted. Indeed he rang the spray painter on no fewer than four occasions on 19 February 2001, that being the next working day after the shooting. He also arranged for the ownership of the vehicle to be transferred to someone who knew nothing of the background of the use to which the car had been put. He told that person that "he [had] used it in a shooting" and that he was not to tell the police about it. That person, AD, initially invented a false story as to the circumstances in which he had acquired the car. He did so, he admitted, in order to protect KN. KN conceded that he had lied to the police and to the Crime Commission insofar as he had denied any involvement in the respraying. His evidence concerning the reason for, and the extent of his involvement in the respraying, was not only at odds with the other evidence on the issue, but utterly implausible on its face. The inescapable conclusion from the evidence and moreover the way in which the parties conducted the case, was that KN was very likely to have been intimately involved in this offence.
22 Before passing from KN's evidence, it is worth recording his answers to some critical questions. When asked if he was one of the two Asian males in the Suzuki when it left the carpark at Bankstown on 16 February 2001, he replied "I don't know". When asked if it was a possibility he said "I don't think so". When it was put to him again later that he was in that vehicle with LD, he said "I can't remember that". Those answers could hardly be described as emphatic denials.
23 LD, who together with KN and the accused, was also a friend of T, having at one stage been his neighbour. Although he was unable when initially spoken to by police to recall his whereabouts on 16 February 2001, he gave evidence that he had indeed got involved in the fight. No doubt he gave that evidence because he knew that evidence from his sister, as well as from a doctor, placed him at Bankstown at the relevant time of the day in question. In addition, his DNA was located on a bottle at a table at the Gourmet Corner Café. He however denied being at the café and was unable to explain the presence of his DNA there. Having initially not been able to say how he left the scene, he later was able to recall that he had not been one of the two Asians who had departed in the red Suzuki. In all the circumstances, the jury may well have thought otherwise. His evidence was in any event, very difficult to accept. No better example of that fact can be provided than his evidence, that notwithstanding that he had told the Crime Commission that he had been stabbed during the course of the fight, he was unable to now recall whether he had in fact been stabbed or not.
24 NV maintained that although he had observed the fight, he had never got closer than 20 metres away from it. However, as was the case with his friend D, gunshot residue consistent with a .25 calibre cartridge case found at the scene, was located upon his clothing. He sought to provide an innocent explanation for its presence. His endeavour to suggest that it may have got there in an incident in a nightclub a month later was simply incredible. That was especially so as the first time he had been made aware of its presence on his clothing was 2½ years after the event when according to him, Detective Doueihi apparently informed him for the first time of that fact just before he gave evidence. Furthermore he agreed that he was wearing a baseball cap which has a very distinctive logo upon it. That logo was described by an eyewitness as being on the cap worn by the gunman. Intercepted internet chat line conversations between him and HN reveal that they were discussing the progress of the police investigation and were also rehearsing what version of events was to be provided by them to police. NV and various of his friends then proceeded to give evidence that was entirely consistent with those discussions. Furthermore, in order to allay suspicion of him, he also assisted his friend, KC by putting the latter's jacket into the bag which he was carrying. KC, it might be noted, also bore some resemblance to descriptions of the gunman which were provided by some of the independent eyewitnesses.
25 It must be said that as a group, the men who were either friends of D or T were highly unsatisfactory witnesses. As I have suggested, it is clear that they all had their own ends to serve. Their evidence clearly reflected that fact. The Crown readily acknowledges that this body of evidence also raised, as I have indicated, the reasonable possibility that one or indeed more than one of them, was in fact responsible for the death of Omar El-Chami Batch.
26 What I have said in the foregoing analysis, makes it perfectly plain that the jury would have to be given a number of warnings in order to ensure that there was proper compliance with ss116 and 165 of the Evidence Act. The manner in which, and the sheer number and scope of the warnings which would be required, may well have the effect of leaving the jury with little room in which to move in terms of returning a verdict.
27 I have had particular regard to the cumulative effect of the combination of matters enumerated in paragraph 14 of these reasons. Having considered them in the overall context of the Crown case, and in particular the evidence concerning the other persons who may have had a significant involvement in this crime, I have arrived at the conclusion that the probative value of the identification is, in all the circumstances, extremely low. It is most unusual, in my experience, for a case to give rise to as many problems as exist here. The case represents, in my view, a text book example of identification evidence which is unreliable, or at the very least is capable of being so regarded. On the other hand, the unfair prejudice to which I have referred is substantial, especially when it is recalled that the identification evidence is pivotal to the Crown case. That being so, there can really be only one conclusion at which I can arrive. Because the probative value of the evidence is outweighed by its prejudicial effect, I am accordingly bound to exclude it and I do so.