Regina v Darwiche & Ors

LEGISLATION CITED : Evidence Act 1995 Sentences (Administration) Act 1999

Festa v R (2001) 208 CLR 593 Graham v R (1998) 195 CLR 606 Papakosmas v R (1999) 196 CLR 297 R v Barbaro [2000] NSWCCA 192; (2000) 112 A Crim R 551 CASES CITED : R v BD (1997) 94 A Crim R 131 R v Cook [1959] 2 QB 340 R v Lockyer (1996) 89 A Crim R 457 R v McKellar [2000] NSWCCA 523 R v Sparkes (1996) 6 Tas R 178

Regina PARTIES : Adnan Darwiche (Accused) Nasaem El-Zeyat (Accused) Ramzi Aouad (Accused)

FILE NUMBER(S) : SC 2005/992; 2005/1252; 2005/993; 2005/997

LLoyd Babb / John Pickering (Crown) COUNSEL : Angus Webb / Craig Smith (Adnan Darwiche) Gregory Stanton (El-Zeyat) Phillip Segal (Aouad)

S Kavanagh (Crown) SOLICITORS : Mark Klees & Associates (Adnan Darwiche) Theo Voros (El-Zeyat) John Krajcik (Aouad)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J

2005/992 2005/1252 - Regina v Adnan DARWICHE 2005/993- Regina v Nasaem EL-ZEYAT 2005/997 - Regina v Ramzi AOUAD

JUDGMENT 1 BELL J: Prior to the jury being empanelled I dealt with a challenge on behalf of the accused, Ramzi Aouad, to the admission of evidence of identification. The identifying witness gave evidence in the Crown case on the application. For the purpose of the voir dire I made a direction that his evidence be taken using the name, Michael Delaney. This is a pseudonym. The witness's real name is contained in a sealed envelope, which is in the Court file. For the purpose of these reasons I will refer to the witness as Mr Delaney. 2 Mr Delaney was present at the AP Service Station on 30 October 2003 and witnessed the shooting of Ahmed Fahda. He made a statement to the police on that day. He said that he pulled up his vehicle, a Toyota Cressida, next to one of the petrol bowsers. He was reversing when he heard a number of loud noises that sounded like gunshots. He looked in his rear and side mirrors and saw a male with a dark goatee beard. This man had a gun in his hand and was firing it (shooter no. 1). He had a hood over his head, but because of the angle Mr Delaney was able to see his face. Mr Delaney drove forward towards Dudley Street. He stopped near the station's driveway exit. As he drove he heard more gunshots. At the point at which he stopped his car he saw shooter no.1 running towards him, carrying the pistol in his hand. He saw him get into the passenger side of a Holden Commodore that was about five metres away. 3 In his statement made on 30 October 2003 Mr Delaney gave a description of shooter no.1: The male with the goatee beard was of solid build, about 170 centimetres tall, of Middle Eastern appearance, wearing a hooded track top, red and blue, or possible (sic) red and black in colour. He looked to be in his mid-twenties. I did not notice what pants he was wearing, except they were full length, nor did I notice what shoes he was wearing. I recall he may have had the hood of his top partially over his head, so I am unable to describe his hair.

On the same day it appears that Mr Delaney also completed a com-fit request form. 4 Evidence was given by Mr Fleming, an imaging technician with the New South Wales Police, about com-fit request forms and the production of com-fit images. A com-fit booklet contains computer images depicting different types of human faces and facial features, including eyes, mouths, noses and hair types. Each component in the com-fit booklet is identified by a letter and a number. An identifying witness is asked to select the features that most closely resemble the suspect from the booklet and to record the component numbers for each feature on a com-fit request form. Provision is made on the form for the witness to describe hair colour, complexion, ethnic appearance and other distinguishing features. The com-fit request form is then given to an imaging technician who produces a computer generated com-fit image, a process that involves merging the selected component features to produce a composite image of a human face. 5 I was informed by the Crown Prosecutor that although Mr Delaney had completed a com-fit request form on the day of the shooting, no com-fit image was generated based upon that request form at the time. 6 On 7 January 2004 Mr Delaney was shown a photographic display. He selected three photographs of persons who bore some similarity to the shooter. The photographic display did not include a photo of the accused, Ramzi Aouad. 7 On 9 March 2004 Mr Delaney was interviewed by Constable Hamilton. He was shown the com-fit booklet and completed a com-fit request form dated 9 March 2004. This form is also part of exhibit A. The component features recorded on the form dated 30 October 2003 and those recorded by Mr Delaney on 9 March 2004 are generally consistent. On the latter occasion a number of additional comments were recorded on the form by way of additional detail. Mr Fleming had both forms with him at the time he completed the com-fit image. After Mr Delaney completed the com-fit form he was interviewed by Mr Fleming and he provided further information to assist in the production of the final com-fit image. 8 Mr Delaney was shown the com-fit image in the course of his evidence. He said of it: Very, it is very, very close to the one I believe who was shooting (T 630.26-27). 9 In cross-examination Mr Delaney said this of the com-fit image: As I said that is closest to the one, to the image on my mind at the time about the guy who was shooting. So that is the closest one. It has come after like the drawing on the computer, and this image was the closest one to I believe is the closest one to the one I saw who was shooting (T 631.52-57). 10 On 1 April 2004 Mr Delaney was interviewed by Detective Sergeant Tuckerman. He was shown two computer presentations of photographs of young men of Middle Eastern appearance. Each presentation contained twenty photographs. Each photograph had a hood superimposed over the head of the person. The identification procedure was electronically recorded. The transcript of the identification procedure forms part of the material in exhibit A. The first presentation shown to Mr Delaney included a photograph of the accused, no. 8. Mr Delaney selected photographs numbered 1, 4, 8 and 17. He was shown the presentation on more than one occasion. He ruled out the person depicted in photograph number 4, leaving photographs 1, 8 and 17 as depicting persons similar to shooter no. 1. He identified the face of the person in photograph 17 as being very close to shooter no. 1. He did not select any of the persons depicted in the second presentation. 11 The accused was arrested and charged with an unrelated matter on 7 December 2003. He was in custody thereafter, up to and including 1 April 2004. 12 The accused was charged with the murder of Ahmed Fahda in May 2004. 13 Mr Segal, who was then appearing for Ramzi Aouad, objected to the evidence of the com-fit image and the photographic identification evidence. 14 Mr Segal's challenge to the evidence of picture identification was advanced on two bases: (i) the evidence is not admissible under s 115 of the Evidence Act 1995 (the Act); and (ii) in the event it is admissible, it should be rejected in the exercise of the discretion conferred by s 137 of the Act. 15 On 21 January 2003 the accused was interviewed by Detective Senior Constable Fairclough at the Parklea Correctional Centre. He was informed that Detective Fairclough was investigating the murder of Ahmed Fahda. He was asked if he wished to participate in an identification parade in relation to that matter. He said that he did not wish to talk to police in the absence of his solicitor. 16 On 1 March 2004 the accused was spoken to by Detective Senior Constable Hamilton at the Parramatta Police Station. The accused's solicitor, Martin Churchill, was present on this occasion. The accused was informed that Detective Hamilton's main purpose in speaking to him was to ascertain whether he wished to participate in an identification parade in relation to the murder of Ahmed Fahda. The interview proceeded as follows: MR CHURCHILL : At this point my client says it's a very serious matter, he wishes to make an informed decision, he would like to see other material available to police prior to him making … Q 16. Alright. I think it's fair to say that police have a firm belief that your client Mr Aouad was involved in the murder of Ahmed Fahda. A. It's still the situation we'd like to see before making a decision to … Q 17. Your client at this stage is not being charged or arrested in relation to the offence of the murder of Ahmed Fahda and as such is not entitled to a brief of evidence. A. On your form 10A he is … he is being arrested … he has been arrested. Q 18. The form 10A, he's already in custody. Form A, yeah I stand corrected I did arrest him earlier, yeah. No, I do stand corrected on that, that's true, I did arrest him earlier. Okay situation is that the police will be conducting photographic identification procedures in relation to the identification of the suspect for the murder of Ahmed Fahda included in those photographs being a photograph of Ramzi Aouad. Do you understand that? A. My client also wishes to make an informed decision prior to consenting to any identification procedure.

The interview was concluded shortly thereafter. Sergeant Sherwell, the officer in charge of Parramatta Police Station, then spoke with the accused and Mr Churchill concerning the manner in which the interview had been conducted. Mr Churchill is recorded as saying: Well I want this recorded down … we've then been asked if we … if we are willing to participate in a line-up and we just said, I said on his behalf, I want to be able to look at the material available to be able to make the decision. … Mr Churchill: No he hasn't, but I'm raising the issue on his behalf, he's just not said anything in this interview, I'm raising the issue about how the fairness about this interview has been conducted and that is as the independent officer I would expect the legal function is to record that, there is a challenge to the way this interview has been conducted. This process, he's not waiving his, he might be seeking the opportunity to have this identification … and he might be seeking the opportunity … some considerations, they're very serious matters he's getting charged with … he might be wanting to do is take the time to think about it and that's been avoided by the process of … it's not just a rubber stamp … fact they want to have considered opinion about it. You're just wanting to go through the normal process I understand … 17 The interview was suspended and on its resumption, at a time after the accused had been returned to the prison, Mr Churchill said this in the presence of Detective Hamilton: First off the client was brought in here, he was … arrangements seems to be made to bring him into this police station some time last night or whatever in the early hours of this morning. I wasn't notified until about one o'clock today about the time of this, about this process was going ahead. I then came out and arranged to … I'm not exactly certain of the time, but my telephone records, the interview, he was advised by the interviewing officer that he was not arrested, I corrected the interviewing officer and he agreed that he had been arrested, my client had been arresting in these matters. V, my client, I made it clear on my client's behalf that they were trying to get him in a line-up and I made it clear, I try and make it very clear on my client's behalf, that once he had material provided to him that he would be in a position to make a decision about whether or not he wanted to participate in the interview. I'm trying to make it very clear that once that material is properly provided he might be willing to do so, the officer made it very clear in the interview that a prior decision had been, already been made to effectively ignore his choice because effectively they were saying that in this case that we would be going to have a photo i.d. 18 A further interview between the accused and Detective Senior Constable Wakeham took place at the Parramatta Police Station on 29 March 2004. Again, the accused's solicitor, Mr Churchill, and his law clerk, Mohammed Ali Darwiche, were present at the interview. 19 The accused was told that the police were here to interview him in relation to the murder of Ahmed Fahda. Mr Churchill responded on the accused's behalf, saying that the accused wished to exercise his right to silence. 20 Detective Wakeham said this: Mr Aouad, as we indicated prior to the commencement of this interview, we intended to offer you the opportunity of participating in an identification parade in relation to this shooting. You have previously indicated that, through your solicitor, that you sought further information from the police so you can make an informed decision in relation to your decision to participate in an identification parade. In relation to that, I can indicate that there is a number of witnesses to the murder. Those witnesses have provided police with descriptions of the two persons responsible for the murder. Police are aware of certain intelligence which indicates, or suggests, that you are a person of interest in respect of this matter, and in fairness to you we wish to offer you the opportunity of participating in an identification parade. Do you understand what an identification parade is? A. (no audible reply). Q 12. Ramzi, I would ask you one further time, I am aware that we have had certain correspondence with your solicitor, but we are obliged to offer you the opportunity of participating in an identification parade in fairness to yourself, so I will give you another opportunity. Do you wish to participate in an identification parade? MR CHURCHILL: My client has indicated that he wished to be shown precisely what distinguishes him as a suspect, what the prosecution wants to rely upon, all the evidence that is relevant to the matter on him, and why he is being chosen and selected as a suspect in these proceedings. He wants to be able to make an informed decision before, as before he makes a decision as to whether or not he participates in an identification parade or not. He wants to be able to have that information, a very important decision in, in his life. We have previously been in a similar situation at this very police station with Detective Ian Hamilton, and we indicated that we wanted the, he indicated that he wanted to have that material available to him. You have also cautioned this man that he doesn't have to say or do anything at this point of time, and he is electing his rights to silence at this point of time, other than to say, I want material so I can make an informed decision. DETECTIVE SENIOR CONSTABLE WAKEHAM: Q 13. I can appreciate what you have just said, Mr Churchill, but I am not here to argue with you on a point of law. I am simply here to offer your client the opportunity of participating in an identification parade. We have indicated to you certain information, and we are not going to provide any further information at this particular time, and if it is the case that your client does not wish to answer any further questions there is no point really in continuing this interview. MR CHURCHILL: He, he wishes to be provided with material which makes him a suspect. He wishes to be able, to be shown material which identifies him and puts him in the scene. He wishes to be shown this type of material. 21 The interview was concluded without the accused saying anything and without his agreement to participate in an identification parade. 22 Mr Delaney's evidence that he selected a photograph of the accused, together with photographs of other persons, as being similar to shooter no. 1 is evidence of identification for the purposes of the Evidence Act. This is because it is evidence to the effect that the accused resembles a person who was present at a place where the offence was committed, at about the time the offence was committed, being an assertion that is based wholly on what Mr Delaney saw, heard and otherwise perceived at that place and time ("identification evidence" - as defined in the Act's dictionary). 23 Mr Delaney's evidence is picture identification evidence for the purposes of s 115. 24 Section 115(5) of the Evidence Act relevantly provides as follows: (1) In this section: picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. … (3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if: (a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, and (b) the picture of the defendant that was examined was made before the defendant was taken into that police custody. … (5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless: (a) the defendant refused to take part in an identification parade, or (b) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into custody, or (c) it would not have been reasonable to have held an identification parade that included the defendant. (6) Sections 114 (3), (4), (5) and (6) apply in determining, for the purposes of subsection (5) (c) of this section, whether it would have been reasonable to have held an identification parade. 25 The photograph of the accused that was shown to Mr Delaney in the course of the computer presentation on 1 April 2004 was a photograph taken at the time of his arrest on the unrelated charge on 7 December 2003. 26 Subsections (3) and (5) of s 115 operate to render picture identification evidence inadmissible in the stated circumstances. Each subsection is engaged in circumstances in which, "the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged". Mr Segal's submissions with respect to the application of the two subsections involved contradictory contentions as to the meaning of this requirement. He submitted for the purposes of subsection (3) that Mr Delaney's picture identification was not admissible because on 1 April 2004 when he examined the pictures the accused was not in custody in relation to the murder of Ahmed Fahda. His custody was referable to his arrest on 7 December 2003 on an unrelated charge and the identification was of a picture of him that was taken at that time and was thus one "made before the defendant was taken into that police custody" and rendered inadmissible under subsection (3)(b). 27 Secondly, Mr Segal submitted the picture identification evidence of Mr Delaney was inadmissible under subsection (5) because the accused had not refused to take part in an identification parade for the purposes of subparagraph (a) (and neither subparagraph (b) or (c) applied). For the purposes of bringing himself within the provisions of subsection (5) Mr Segal submitted that the accused was in the custody of a police officer of the police force investigating the commission of the offence with which he has been charged. 28 The transcript of an interview conducted between the accused and Detective Hamilton on 1 March 2004 makes plain that the accused was not at that time charged, nor had he been arrested, in relation to the murder of Ahmed Fahda (Q. 17) and that he was already in custody (Q. 18). It is apparent that he was in custody at a correctional centre and that he had been brought to the Police Station from the correctional centre and that he was returned to the correctional centre prior to the completion of the formal adoption of the interview (p 19). 29 The Crown Prosecutor submitted that the accused was not in the custody of a police officer of the police force investigating the commission of the offence with which he had subsequently been charged as at 1 April 2004. The Crown Prosecutor contended that the submissions advanced by Mr Segal under s 115 (3) must necessarily fail. If, for the purposes of subsection (3)(a) the accused was in the custody of a police officer of the police force investigating the commission of the offence with which he has been charged, the picture of him that was examined was not one made before he was taken into "that police custody" for the purposes of subsection (b). I accept that is so. The picture identification evidence that the Crown seeks to adduce from Mr Delaney is not inadmissible by reason of the provisions of s 115(3). 30 In R v McKellar [2000] NSWCCA 523, the Court rejected the proposition that for the purposes of s 115 of the Act the expression "in the custody of a police officer" should be given an extended meaning embracing "some kind of legal power or influence over the person". In this context, Howie J (with whose judgment Fitzgerald JA and Whealy J agreed) concluded the normal meaning to be applied to the words "in the custody of a police officer" namely under the physical restraint of a police officer was the meaning to be given to the term. 31 The decision in McKellar does not assist in the resolution of the issue raised in this case. On 1 April 2004 the accused was in the custody of the governor of the correctional centre to which he had been committed: s 72 of the Sentences (Administration) Act. He was suspected by the police investigating the murder of Ahmed Fahda of being one of the shooters. Those police knew that he was in custody. It was open to them to arrange for his production from custody to a police station for a purpose in aid of the administration of justice. The Commissioner of Corrective Services has the power to make a local leave order authorising an inmate to be taken from a correctional centre to some other place to enable the inmate to assist in the administration of justice: s 25(2)(b) of the Sentences (Administration) Act 1999.

32 It may be thought that the policy behind the enactment of s 115(5) was that the holding of an identification parade be a precondition of admissibility with respect to identification evidence obtained at a time when a suspect is in custody, subject to the considerations set out in subparagraphs (a) - (c). This accords with the discussion in the Australian Law Reform Commission's Interim Report on Evidence, No. 26 Vol 1 at paragraph 838: A final matter for consideration is the approach to be taken on the admissibility of evidence of photo-identification where the investigators have already identified a suspect. Criticism of the practice by the courts over many years does not appear to have altered it. The Commission has already proposed that photo-identification not be allowed where a suspect is in custody unless the suspect refused to attend an identification parade, or to hold an identification parade would be unfair to the suspect or impractical. The evidentiary consequences of a breach of such a requirement was that an exclusionary discretion applied. The discretion, however, did not address the potential prejudicial effect of photo-identification evidence or the problem of its unreliability. While these can be addressed by existing common law discretions, their apparent failure to change police practices suggests that specific measures are required. An approach should be adopted reflecting the comments of Justice Stephen in Alexander v R (1981) 145 CLR 417: When photo-identification is used after the detection process is over, that will in itself be a strong ground for excluding from the trial all evidence of identification by a witness who has been involved in that photo-identification. The police will in such a case already know, at the time of the photo-identification, the identity of the "wanted man". Accordingly, the particular advantage which photo-identification offers as a means of supplying that information will no longer apply. Instead it will possess only its character of a second-best model of identification, particularly prone to error and also productive of those well-recognised consequences so likely to be prejudicial to an accused. This will, in most cases, be reason enough, at least where some more reliable mode of identification such as an identification parade was available, to exclude from evidence the identification testimony of a witness whose testimony has been infected by contact with photo-identification. It is proposed that evidence of photo-identification by police photographs carried out when a suspect is being held under restraint by the police should not be admissible if an identification parade was not held beforehand unless it would not have been reasonable to hold such a parade. For similar reasons, admission of evidence of identification by "identikit" and like pictures should be controlled in the same way. Finally, the admissibility of such evidence will be subject to the proposed exclusionary discretions which relate to prejudicial evidence and illegally or improperly obtained evidence. (Footnotes omitted). 33 The Commission favoured a test of custody as distinct from one directed to the state of mind of the investigating police. This would not have precluded a wider definition of custody than that which was adopted. The plain words of s 115(5) do not seem to me to admit of the construction for which Mr Segal contended. On 1 April 2004 the accused was in custody but he was not in the custody of a police officer of the Police Force investigating the commission of the offence with which he has been charged. 34 If I am wrong in concluding that as at 1 April 2004 the accused was not in the custody of a police officer of the police force investigating the commission of the offence with which he has been charged I would nonetheless have rejected the submissions advanced under subsection (5). This is because I consider that the accused had refused to take part in an identification parade on 1 March and 29 March 2004, when on each occasion he was offered the opportunity to participate in one. The verb "refuse" is defined in the Oxford English Dictionary, 2nd ed, as "to decline to take or accept (something offered or presented); to reject the offer (a thing)". I consider that the accused declined to accept the offer to participate in an identification parade and that this constituted a refusal for the purposes of subs (5)(a). The fact that he indicated that if certain conditions were met he might take a different stance does not mean that the stance taken at the time the offer was made did not constitute a refusal. My conclusion that the accused's conduct constituted a refusal for the purposes of subs (5)(a) is reinforced by the terms of s 114(5): The conduct of a defendant in declining to take part in an identification unless that defendant's lawyer or another person is present is treated for the purposes of subparagraph (a) as a refusal. 35 No other ground touching on admissibility was advanced in support of the submission that the picture identification evidence Michael Delaney should be rejected. 36 In Mr Segal's submission, the picture identification evidence should be excluded in the exercise of the discretion conferred by s 137 of the Act. This was because the witness had previously viewed the com-fit image produced by Mr Fleming. In Mr Segal's submission there existed a risk that Mr Delaney selected a photograph of the accused not because of the resemblance between the person depicted in the photograph and his memory of shooter no.1, but because the person in the picture bore a similarity to the com-fit image. Mr Segal emphasised in the course of his submissions the photographic quality of the computer generated com-fit image. 37 The danger of unfair prejudice to which s 137 is directed is the danger that the jury may misuse the evidence in some unfair way: Papakosmas v R (1999) 196 CLR 297 per McHugh J citing Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 139; R v Lockyer (1996) 89 A Crim R 457. 38 This is not a case where there exists a risk that pictures of a suspect seen by an identifying witness at an earlier time may have influenced the witness's subsequent identification of the accused. The com-fit image was produced at Mr Delaney's direction based on his selection of features consistent with the features of shooter no. 1. I did not consider that there was a danger of unfair prejudice in the circumstance that Mr Delaney had viewed the com-fit image before being shown the presentation of the photographs of young men who broadly answered the description that he had given to the police. No unfairness was identified in the selection of the photographs. 39 It is relevant to the issues raised in the trial for the Crown to prove that the accused is similar in appearance to shooter no. 1: Festa v R (2001) 208 CLR 593. I did not consider that the probative value of the evidence of picture identification by the witness, Michael Delaney, was outweighed by the danger of unfair prejudice to the accused. 40 I turn now to a consideration of the basis of the challenge to the evidence relating to the production of the com-fit computer image. 41 Mr Segal objected to the admission of the com-fit image as hearsay submitting that it did not come within any of the exclusions to the hearsay rule.

42 At common law evidence of an identikit picture has been received in evidence on an analysis that, unlike an out of court statement in writing, the pictorial representation is not hearsay: R v Cook [1959] 2 QB 340 per Watkins LJ (delivering the judgment of the court) at 425: We regard the production of the sketch or photo fit by a police officer making a graphic representation of a witness's memory as another form of camera at work, albeit imperfectly and not produced contemporaneously with the material incident but soon or fairly soon afterwards. As we perceive it the photo fit is not a statement in writing made in the absence of a defendant or anything resembling it in the sense that this very old rule against hearsay has ever been expressed to embrace. It is we think sui generis, that is to say, the only one of its kind. It is a thing apart, the admissibility to evidence of which would not be in breach of the hearsay rule. 43 In R v Sparkes (1996) 6 Tas R 178 Underwood J reviewed the authorities at common law on the admission of identikit pictures. His Honour noted the cautionary commentary in Cross on Evidence (5th Aust ed, 1996) at 876 - that the reasoning in Cook is not so strong in principle that it will inevitably be applied in Australia and that there are hearsay dangers in relation to photo fit pictures that do not apply to photographs - but determined to admitted the photo fit following the reasoning in Cook.

44 Mr Delaney's evidence that the com-fit image resembles shooter no. 1 is evidence of identification for the purposes of the Act. Mr Segal did not submit that it is inadmissible by reason of the provisions of s 114. For the reasons earlier given, I was not of the opinion that Mr Delaney's identification evidence is excluded by s 114, since I am satisfied that the accused had refused to take part in an identification parade prior to 9 March 2004. 45 Mr Segal did not challenge the evidence of the representations made by Mr Delaney on 9 March 2004 to Detective Hamilton and to Mr Fleming of the selection of the component features from the com-fit booklet or of his identification of the com-fit image as resembling shooter no. 1. The matter was argued on the basis that Mr Delaney's representations were first hand hearsay (T 670). The Crown Prosecutor submitted that the representations were admissible under s 66(2). There was no issue taken about whether the occurrence of the asserted fact was fresh in Mr Delaney's memory at the time the representations were made for the purposes of s 66(2). In the Crown's submission the interval of four months and nine days between the shooting and the date on which the com-fit image was made did not exclude Mr Delaney's representations made on that day being fresh in the memory. I considered that Mr Delaney's identification, comprising the selection of the component features from the com-fit booklet and assertion that the com-fit image resembled shooter no 1, to be admissible as original evidence of his state of mind and analogous to the out of court identification of a photograph: R v Barbaro [2000] NSWCCA 192; (2000) 112 A Crim R 551 per Grove J (with whose judgment Spigelman CJ and Wood CJ at CL agreed) at [43]. In the event that I was wrong in so concluding, I record that although the interval of over four months was lengthy (having regard to the observations in Graham v R (1998) 195 CLR 606) I considered that the assertions contained in the com-fit request form that appears to have been completed by Mr Delaney on the day of the shooting in combination with the assertions made by him on 9 March 2004 supported the conclusion that the image of shooter no. 1 was still fresh in his memory on 9 March.

46 Mr Segal's objection was to the admission into evidence of the com-fit image, which he contended was "one step away" from the representations made by Mr Delaney to Detective Hamilton and Mr Fleming. In his submission the com-fit image is an artefact produced by a skilled operator using technology and is excluded by the hearsay rule (T 670). That rule excludes evidence of a previous representation made by a person to prove the existence of a fact that the person intended to assert by the representation: s 59. The com-fit image is not tendered to prove any fact intended to be asserted by Mr Fleming. The com-fit image is a graphic representation of Mr Delaney's mental image of shooter no. 1. Accepting that Mr Delaney's identification of the com-fit image (that it closely resembles shooter no 1) is admissible, I considered that the com-fit image is admissible; much in the way that a photograph identified by a witness on an earlier occasion is admissible.

47 Mr Segal submitted that the com-fit image should be excluded under s 137 of the Act. He laid stress on its near photographic quality, which he submitted was likely to have persuasive power that a sketch may not possess. In his submission there existed a danger that the jury would place too much emphasis on an image, which at best is a computer generated likeness based on the instructions of a witness who had a fleeting opportunity to observe shooter no. 1 and whose observations were made under circumstances of some exigency. Shooter no. 1 was not known to Mr Delaney. Mr Segal submitted that the jury may be tempted to compare the accused with the image and to conclude that he resembles the man depicted. 48 I did not consider the quality of the com-fit image to occasion unfair prejudice to the accused. It is plainly a computer-generated image. I accepted that jurors would compare the com-fit image with the accused and assess whether the accused resembles the image that was created at Mr Delaney's direction. There is nothing about the com-fit image that occasions prejudice to the accused beyond the circumstance that his facial features may be considered to be broadly consistent with it. The matters that Mr Segal addressed by way of criticism of Mr Delaney's ability to accurately recall the appearance of shooter no 1 are matters that will require directions concerning the special need for caution in assessing evidence of this character. I was not of the opinion that the probative value of the evidence of the com-fit image was outweighed by the danger of unfair prejudice to the accused. 49 For these reasons I ruled that Mr Delaney's picture identification evidence, and evidence concerning the creation of the com-fit image and the image would be admitted.

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