The District Court refused the accused's application to exclude photo board identification evidence under ss 135 and 137 of the Evidence Act 1995 (NSW), finding that the probative value of two positive identifications made approximately 10 hours after the offence was significantly high and outweighed the danger of unfair prejudice. The Court held that the risk of the jury inferring the accused was known to police could be ameliorated by tailoring the evidence presented about how the photo board was constructed (attributing it to witness information rather than disclosing the unrelated police event or the limited details available at the precise time of construction) and by giving appropriate directions under ss 115(7)(b) and 116 of the Act, including a direction in accordance with Yasser Ahmad v Regina [2004] NSWCCA 460.
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