Regina v Amir Ibrahim El Mostafa

[2007] NSWDC 327

CITATION:	Regina v Amir Ibrahim El Mostafa [2007] NSWDC 327
HEARING DATE(S):	Please see the judgment of Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219 for hearing dates
JUDGMENT DATE:	17 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Evidence is admissible
CATCHWORDS:	Criminal law - Admissibility of evidence - Probative value and prejudice of evidence
LEGISLATION CITED:	ss135, 137 Evidence Act 1995
CASES CITED:	Papakosmas v The Queen (1999) 196 CLA 297 R v BD (1997) 94 ACrimR 131
PARTIES:	Regina Amir Ibrahim El Mostafa
FILE NUMBER(S):	06/11/0574
COUNSEL:	Mr Calvert for the Crown Mr Simpson for Amir Ibrahim El Mostafa
SOLICITORS:	Ms Flemming for the NSW DPP Ms Duffy for Amir Ibrahim El Mostafa

JUDGMENT

1. Mr Simpson submits that I should refuse to admit evidence of the polling booth demonstration which was in the form of statements and photographic evidence. His submission was based upon s135 and s137 of the Evidence Act 1995. Essentially the arguments in support of both applications was the same.

2. Mr Simpson argued that the probative value of the evidence was not particularly high. He argued that his client may or may not be a protester. However, it seems to me that in light of the evidence of Musadek Al Zargani in exhibit VDEM 16 that it is clear that Mr El Mostafa had views about the election which were contrary to those partaking in the voting procedure.

3. I therefore agree with the crown that the probative value of this evidence is high, particularly given the Crown case that the riot was the result of the combination of three factors, one of which was the political element of the voting in the Iraqi elections. Mr Al Mostafa's presence at the voting in the elections, as demonstrated in the photographs, provides him with a motive to be in the riot and therefore makes more explicable his alleged participation in the riot. I should add when I use the phrase "as demonstrated in the photographs" that in my view it is open to a jury to conclude that the photographs depict Mr El Mostafa.

4. The question of whether the evidence presents a danger of unfair prejudice under either of the sections is another issue. Mr Simpson's submission is that the jury may draw an inference that he was a protester and had a motive to be in the riot. However, in my opinion, this is not an unfair prejudice as McHugh J said in Papakosmas v The Queen (1999) 196 CLA 297 at 325 ([91]):

“Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD (1997) 94 ACrimR 131 at 139 Hunt CJ at CL pointed out:
'The prejudice to which each of the sections [s135, s136 and s137] refers is not that the evidence merely tends to establish the crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.'“
The fact that the evidence provides a motive for his client's involvement in the alleged offence as submitted by Mr Simpson is not, in my opinion, an unfair prejudice in this case.

5. But Mr Simpson said another basis was the election issues which apparently motivated the protestors touched upon the Iraqi war and hence juries may have strong views for or against some of the issues. That fact may have the potential to deflect jurors from their task.

6. I can appreciate the force of this argument. It is just the kind of potential prejudice that may act unfairly on an accused. However, whether or not it is unfairly prejudicial in a particular case must be seen, in my opinion, in the complex issues in this trial. The crown case will evidently be in the context of religious and political disharmony amongst the Iraqi community in Sydney. It will be part of its case that this disharmony explains what was going on. It seems to me therefore that it will be inevitable that the issues may drift close to controversial public topics.

7. This result would be, in my opinion, not unfairly prejudiced to the accused because it will be a necessary consequence of the issues in the trial. But it will be important that I warn the jury of the need to avoid taking into account any of their personal views about issues which may arise in the trial.

8. In my opinion the probative value of the proposed evidence is not substantially outweighed by any danger suggested in s 135 of the Evidence Act, nor is the probative value outweighed by the danger of any unfair prejudice in accordance with s 137 of the Evidence Act and I therefore refuse the application.

oOo