Fadel v R

(2017) 94 NSWLR 670; [2017] NSWCCA 134

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Evidence
5. › Identification evidence
6. › In-court identification
7. › Whether in-court identification by witness familiar with accused required discharge of jury
8. › Whether direction to disregard in-court identification adequate
9. › Evidence Act 1995 (NSW), ss 55, 56, 116, 137, 165
1. Evidence
2. › Identification evidence
3. › In-court identification
4. › Witness previously acquainted with accused
5. › Dangers of in-court identification
6. › Whether evidence admissible
7. › Whether direction to disregard cured prejudice
1. Evidence
2. › Absence of evidence
3. › DNA evidence
4. › Whether jury entitled to draw exculpatory inference from absence of DNA evidence
5. › Whether direction that absence of DNA was neutral was correct
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Unreasonable verdict
5. › Whether verdict unsupported by evidence
6. › Discrepancies in identification evidence
7. › Evidence of another person claiming responsibility
8. › Whether significant possibility innocent person convicted

Quick Take

In-court identification evidence given by a witness who was previously acquainted with the accused, and who had already given evidence of recognising the accused at the scene, is of a different and less dangerous character than in-court identification by a stranger, and does not require discharge of the jury. The appropriate remedy is a firm direction to disregard the in-court identification. The absence of DNA evidence on an accused's clothing is a neutral factor where no expert evidence is called to establish that DNA would have been expected to be present.