R v Anas Ayman Abdu Musa[2025] QSCPR 1

SUPREME COURT OF QUEENSLAND

The application

1. [1]
   The applicant is charged on indictment with twelve offences of violence against twelve complainants, the most serious being the alleged murder of Girum Gebayaw Mekonnen.  The offences are alleged to have been committed in the late afternoon of 13 September 2020, when a group of ten or more young men of African descent armed with baseball bats, knives and machetes attacked a group of about 13 men and two women (also of African descent) in a park colloquially known as “the Zoo” at Zillmere on the north side of Brisbane. The impetus for the attack, apparently being one of revenge, was an earlier assault by someone associated with the complainant group committed against the brother of one of the attackers.
2. [2]
   The applicant was initially charged conjointly with twelve other men, but subsequently applied for and was granted an order for a separate trial on the basis that the case against him was “factually different” and “notably weaker”.^[1] A trial by jury of the 12 men commenced late last year before another judge of this court, but for  various reasons, that trial morphed into a judge only trial with the trial judge’s decision reserved and impending.   
3. [3]
   By this application, the applicant seeks a further ruling under s 590AA of the Criminal Code Act 1899 (Qld) (Criminal Code) that the “identification evidence” of witnesses Ayoung Awan and Rose Mabior be excluded from his trial in the exercise of the “Christie” discretion. The applicant argues that the probative value of that otherwise uncorroborated identification evidence is outweighed by its prejudicial effect.^[2] The probity of this evidence is said to be considerably diminished by the fact that the applicant was only recognised when (together) the women searched Facebook after the applicant’s name was mentioned by one of the co-accused;^[3] and the unfair prejudice is said to be a real and grave danger that the jury would attach undue weight to the identification evidence.^[4]
4. [4]
   In Alexander v R (1981) 145 CLR 395 at 402–3, Gibbs CJ explained the occasion for the exercise of the Christie discretion as follows:^[5]

It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

5. [5]
   The Crown frankly conceded that if the identification evidence of the two women is excluded it has no case against the applicant. The Crown opposed the exclusion on the basis that the quality of the evidence is “not so low” as to warrant exclusion;^[6] and that the weaknesses identified and consequential prejudice is able to be addressed and balanced by a carefully constructed direction to the jury.^[7]
6. [6]
   It follows that the resolution of the issue for my determination requires a general understanding of the facts and circumstances of the attack and an assessment of the quality, reliability and weight of the evidence which places the applicant in the park on the afternoon in question.^[8]

Overview of the Crown case and the alleged facts

7. [7]
   The complainant group were casually drinking and playing cards in the park on the sunlit afternoon of 13 September 2020 when the avenging group of 13 arrived nearby.  All of the latter group, apart from the applicant, had travelled in convoy in three cars from Ipswich to Zillmere. The applicant lived at Bray Park and is alleged to have met up with the other 12 men near the park. Three of the men remained with the cars as getaways while around 5.20 pm the other 10 men (including the applicant) walked to the park, disguised by caps, hoodies and masks, and apparently armed with concealed weapons including baseball bats, knives and machetes.  Once there, the 10 men almost immediately commenced their retributing ambush of the complainant group using the weapons they had carried with them and some empty beer bottles lying on the ground.  What ensued was a chaotic and violent attack resulting in significant injury to 11 complainants. Sadly, the twelfth victim, Mr Mekonnen, suffered a fatal stab wound to his abdomen and died at the scene. The entire attack appears to have lasted for no longer than five minutes.^[9]
8. [8]
   The Crown is unable to identify a principal offender but relies on each of the 10 attackers present as being criminally responsible for the murder of the deceased and the various injuries upon the 11 complainants under one or more of ss 7(1)(a), 7(1)(c) or 8 of the Criminal Code. The Crown case against the three men who waited with the cars proceeded on the basis that they were participants in the prosecution of an alleged unlawful purpose and are therefore criminally responsible under s 8 of the Criminal Code.
9. [9]
   The Crown’s written submissions refer to the existence of CCTV footage depicting the “disguised assailants.”^[10] However, this footage was not tendered in the application before me with the Crown conceding that “it is not possible for the fact-finder to independently identify the applicant [on the CCTV footage] within that group.”^[11]

Identification of the applicant

10. [10]
    The only evidence that points to the applicant being one of the 10 attackers in the park comes from Ms Mabior and Ms Awan - two women who were part of the complainant group. Ms Mabior is also the complainant in one of the counts, having suffered bodily harm in the attack.  
11. [11]
    Before turning to the evidence of these women, it is instructive to point to the following matters which the Crown conceded do not place the applicant at the park:

    1. None of the men on the CCTV footage can be seen to fit the description given by Ms Mabior and Ms Awan;
    2. Despite identification of the vehicles which were involved, none of these vehicles can be linked to the applicant; and
    3. There is evidence of several phones belonging to the co-accused having been tracked going to and from the park, but there is no such evidence from the applicant’s phone. One obvious explanation is of course that the applicant’s phone may have been left at home and not in use at the time of the attack. But it was uncontroversial before me that an analysis of the applicant’s phone reveals there are often long periods when it is not in use and the evidence at the committal hearing suggests that his phone was at home pinging off a tower 4.3 kilometres from the applicant’s house and 19.2 kilometres from the park at 3.48 pm, 4.08 pm, 4.20 pm, 5.08 pm and 6.08 pm. There is also evidence from the committal that the phone may have been in use as it was uploading and downloading data between 5.08 pm and 5.58 pm, which covers the period of the attack.
12. [12]
    Both Ms Awan and Ms Mabior spoke to the police in a recorded conversation on 13 September 2020 and subsequently provided three statements to the police. The chronology given in Ms Awan’s statements is the same as those of Ms Mabior, except that Ms Awan’s last statement was given on 6 October 2020 and Ms Mabior’s last statement was given on 8 October 2020.

Ms Awan’s statements

13. [13]
    In a recorded conversation with the police shortly after the attack on 13 September 2020, Ms Awan said she had not recognised any of the assailants as follows:

OFFICER WU: Were these offenders from Sudan, Sudanese?

MS AWAN: Am I Sudanese?

OFFICER WU: No, no the guy that attacked you?

MS AWAN: Yeah, they looked Sudanese Yeah.

OFFICER WU: You don't know who they are?

MS AWAN: No all I know is they are Sudanese.

14. [14]
    But then two days later, on 15 September 2020, Ms Awan provided a written statement to the police in which she named and identified several of the attackers. She also stated that she saw a man wearing a green hoodie jumper, with lighter coloured skin than the other African males, with short dreadlocks and appearing “Nubian” armed with a baseball bat. At one stage Ms Awan stated, “I didn’t recognise this male”. At paragraph [33] of her statement, she referred to that man throwing a bottle at her while her boyfriend tried to cover her up as they tried to get away. At paragraph [38] of Ms Awan’s statement, she referred to a male who ran from the scene towards the carpark at the end of the events yelling “Let’s go” in a panicked voice, and she stated that he was followed by the other males. It appeared that this male was different from the man in the green hoodie. She described this man as “wearing dark coloured clothing”. Ms Awan also stated at paragraph [32] that she knew one of the men by name, Alex Deng, whom she had seen as one of the attackers. Ms Awan stated that Mr Deng told her in a Facebook message, in an apparent attempt at an alibi, that he was with “Anas and Nelson” (paragraph [54]). As a result, Ms Awan stated that she started looking on Facebook on the morning of 15 September 2020 to attempt to identify “Anas”. Her evidence about this is as follows:

“56. This morning Tuesday 15th September 2020, I started searching Facebook to see if I could find out who Anas was because Alex kept saying he was with his girlfriend on Sunday. I typed Anas into the search field and the first profile that came up was Anas MUSA. I looked at the profile picture and recognised the person in the picture to be the same male that was wearing the green jumper and threw the beer bottle at me on Sunday. The Facebook page was open, so I went through the photos. There was a recent photograph from Father's Day with a picture of this male which shows his dreadlocks.

57. I bought [sic] this males profile back up on my phone and showed Detective BROWN. I allowed Detective BROWN to photograph my phone showing the Facebook profile for Anas MUSA and the picture I have spoken about taken on father's day.”

15. [15]
    The applicant emphasized the prior inconsistent statement by Ms Awan that she was unable to identify any of the attackers in the immediate aftermath of the event, but then somehow two days later she was able to recall these specific details. At least on one view, this inconsistency might be explained by the fact that when Ms Awan first spoke to the police she had just been caught up in a violent and chaotic ambush. It is reasonable to assume that she might have been shaken and concerned for her safety when she said she did not recognise anyone. Regardless, this shift in Ms Awan’s account is obviously a factor that will need to be considered in the assessment of the reliability and credibility of her evidence at trial, and the jury would be directed about that by the trial judge.
16. [16]
    In an addendum statement dated 17 September 2020, Ms Awan elaborated on how she came to identify the applicant (with reference to her 15 September 2020 police statement) as follows:

“5. In paragraph 33 I described a guy wearing a green hoody [sic] jumper. I did not recognise the male at the time.

6. In paragraph 54 I described a conversation I had with Alex on Facebook during which he sent me a screen shot of a conversation that he had with a person by the name of Omot. I do not know Omot. In the screen shot of this conversation Alex stated that he was with Anas and Nelson.

7. In paragraph 56 I described how I looked at a Facebook profile of Anas MUSA profile and recognised the person in the picture to be the same male that was wearing the green jumper and threw the beer bottle at me on Sunday.

8. At first at the park on Sunday I did not recognise this male, but thinking back I have met him before at a BBQ this was one to two weeks ago.

…

10. In the first photo board I recognised number seven (7) as the guy in the green hoodie I now know as Anas.”

17. [17]
    The applicant is also critical of this evidence and points to the fact that it was only “thinking back” that Ms Awan was able to recall she had met the applicant two weeks earlier at a barbeque. The applicant notes that this detail was “curiously” absent from Ms Awan’s 15 September 2020 statement and the version she gave to police at the scene.
18. [18]
    Then, in a subsequent statement dated 6 October 2020 at paragraph [11], Ms Awan recalled that she had, in fact, recognised the applicant whilst at the scene as someone she had met before as follows:

“Once I searched the name Anas on Facebook following Rose and my conversation with Alex, I saw the picture on the profile for Anas MUSA. I was able to identify this as the person I had met both at the BBQ in Chermside and as the person who was wearing the green jumper on 13th September 2020.”

19. [19]
    Again, the applicant is sceptical of this evidence as being not only absent from the earlier versions given by Ms Awan but also contradictory to them. The applicant also pointed to Ms Mabior having looked at a plurality of photos on the applicant’s Facebook site, but not all the photos she looked at were disclosed. 

Ms Mabior’s statements

20. [20]
    At the scene on 13 September 2020, Ms Mabior told the police that she did not recognise any of the attacking group in the following exchange with Officer Wu:

OFFICER WU: “Who?”

MS MABIOR: “I don’t know who they are.”

…

OFFICER WU: “Do you, do you know them?

MS MABIOR: “No I don’t know them.”

…

OFFICER WU: Did you recognise anyone? Or no?

MS MABIOR: No, no I just saw black guys.

OFFICER WU: Okay do you know where they are from? Roughly? Maybe?

MS MABIOR: Sudanese.

21. [21]
    On 13 September 2020, while still in hospital, Ms Mabior gave a recorded statement to Officer Stanborough. In that statement, Ms Mabior said that she had been told by one of the people with her in the park that the group who attacked them were from Ipswich. Ms Mabior said she had heard one of the people being called “Junior”, but that she did not know who that was. She said she had been hit with a bat by a man wearing all black. Ms Mabior described the man as having a black long-sleeved hoodie on, black pants and being a little taller than her and muscly. She also described all the men who attacked her group as Sudanese. Ms Mabior was asked several times if she could help identify any of the attackers and she repeatedly said she did not know anything.
22. [22]
    On 15 September 2020, Ms Mabior provided a written statement to the police in which she confirmed that she was at the park on 13 September 2020 with Ms Awan and about 10 men when they were attacked by a group of men. In paragraph [17] of this statement, Ms Mabior first identified the applicant as “another male that I know Anas MUSA Anas is Sudanese;” and she said that this male was holding a baseball bat.  Later in this statement, at paragraph [18], Ms Mabior described the applicant as wearing a green jumper and light grey pants with short black dreadlocked hair. She also said she had met the applicant two weeks earlier at a barbeque at Chermside. The applicant pointed to the fact that Ms Mabior did not refer to the fact that Ms Awan was also at that barbeque, and that Ms Awan had not referred to the barbeque until her 17 September 2020 statement.
23. [23]
    In her 15 September 2020 statement, Ms Mabior also stated at paragraph [34] that it was the applicant who ran from the scene first, followed by the other attackers. Ms Mabior also stated that the applicant ran from “the direction” where the deceased was later located. Ms Awan at this point recalled the applicant had been carrying something sharp, possibly a long knife or machete, and that he sounded panicked as he yelled for the others to run. I accept Senior Counsel for the applicant’s submission that this statement reads as though Ms Mabior knew the applicant, and in it Ms Mabior failed to mention that she had looked up the applicant on Facebook prior to giving the statement.
24. [24]
    In her addendum statement of 17 September 2020, Ms Mabior clarified that she did not know the applicant and elaborated on how she came to search for the applicant on Facebook as follows:

“3. On Monday the 14th September 2020, Ayoung [Ms Awan] and I were together at my place. Sometime in the morning, Alex Deng sent Ayoung a screen shot of a conversation that he had with James Omot saying that on Sunday afternoon, he was with his girlfriend ‘Anas’.

4. I do not know James Omot.

5. We obviously thought that Anas was a girl, so later that night and out of curiosity, we looked her up on Facebook and as soon as we typed in ‘Anas’, Anas Musa's profile came up and I recognised him straight away as being at the attack in Zillmere on Sunday afternoon, and also as the person I met at the BBQ at Chermside.

6. Within his Facebook profile, I saw a photo of him on Father's Day this year, the 6th September, and it was definitely the same ‘Anas’.

7. I showed Detective Senior Constable Kacey Williams my iPhone, and the Facebook profile ‘Anas Musa’, and the picture from Father's Day that I looked at.

8. I saw that Detective Senior Constable Kacey Williams took photos on her iPad.”

25. [25]
    The applicant points to the inconsistency between the two women as to when they looked at the Facebook photos – Ms Mabior’s evidence being that it was on 14 September 2020 and Ms Awan’s that it was the morning of 15 September 2020.  I am not satisfied that anything turns on this discrepancy. Indeed, at least on one view, the discrepancy is supportive of the women not colluding about their evidence and bringing their independent recollections to bear. This is a conclusion that is borne out in other ways too; for example, both women gave slightly different descriptions of the applicant.  
26. [26]
    In a further written statement on 8 October 2020, Ms Mabior clarified that although she had recognised the person in the green jumper as the same person she had seen at the barbeque, she had not known the applicant by name at the time of the alleged attack, and that her knowledge of his name came only from looking him up on Facebook. Most relevantly, Ms Mabior recounted the following conversation with   Mr Deng on 14 September 2020:

“9. On that day I remember saying to Alex, “Well if you weren’t there, who were you with?”

10. He said, “I was with my girlfriend.”

11. I said, “What is your girlfriend’s name?”

12. He said, “Her name is Anas.”

13. I said, “Are you sure? You don’t have a girlfriend.”

14. He started to look worried. As though he had said something that he should not have said. I was immediately suspicious of the name ‘Anas’ that Alex had provided.

15. He said, “You know what. I was at home.”

16. He paused and seemed to think for a bit. He then said, “I want to tell you some things but I don’t know whether I can trust you.”

17. I then said, “Tell me more about your girlfriend Anas.”

18. Alex then said, “I’m going to tell you things, but don’t tell the police.”

19. Alex said, “I was with my friend. His name is Anas. He lives on the northside. I was with him that day. Actually, I was with him for the whole weekend.”

20. He then said, “Do you know Anas?”

21. I said, “No.”

22. He said, “He’s a snitch. He plays both sides. He gives information about the northside boys to the Ipswich boys.”

23. He said, “Anas didn’t initially want to give up information about the northside boys, but he got beat up by Ipswich boys.” I took from this that Anas then felt forced to give up information to the Ipswich boys in relation to the northside boys.

24. Alex said, “Anas goes back and forth from the northside boys to the Ipswich boys. He is friends with both but is fake to the northside boys.”

…

31. I said to Alex, “How did you guys know where the Zoo was? Anas knows where the Zoo is right?”

32. Alex did not say anything. He just smiled. I presumed I was right in assuming Anas had told Alex where the Zoo was.

33. Alex then said, “Hey that’s my boy. I'm not gonna say anything and snitch on him.”

27. [27]
    This later statement is of course inconsistent with Ms Mabior’s earlier statement on 17 September 2020 that when she searched “Anas” on Facebook she had no suspicions about him at all and thought he was a girl.

Committal Hearing Evidence of Ms Mabior and Ms Awan

28. [28]
    Both Ms Mabior and Ms Awan were cross examined at the committal hearing.
29. [29]
    Ms Mabior’s evidence was heard over two days with the committal hearing adjourning part-way through her evidence due to police disclosure issues. Ms Awan’s evidence ran for a day. 
30. [30]
    The applicant referred to a myriad of inconsistencies and difficulties with the evidence given from both women at the committal hearing. Senior Counsel for the applicant described Ms Mabior as unresponsive, argumentative and inconsistent “in the extreme”; referring to her at one stage having “stormed out” of the remote room from where she was giving evidence.^[12]
31. [31]
    The applicant pointed to specific inconsistences, weaknesses and difficulties with the evidence of Ms Mabior and Ms Awan. In doing so, the applicant sought to distinguish a number of authorities in which appeals against the admission of Facebook identification evidence were unsuccessful.^[13] Some of the specific inconsistencies raised by the applicant with regard to the identification evidence are set out below:

    1. Ms Mabior said that when she gave her first statement, she and Ms Awan had shown the police a screenshot of her conversation with Mr Deng. However, Ms Mabior did not mention this in her first statement nor was this supported by the evidence of any police officer; 
    2. Ms Mabior confirmed what she had said in her 17 September 2020 statement that when she first searched on Facebook to identify the person “Anas”, she did so with Ms Awan, believing at the time that she was looking up “Alex’s girlfriend Anas”. The applicant contends that Ms Mabior thought she was looking for a girl because, at that stage, Mr Deng had not said anything suspicious about Anas. However, Ms Mabior’s statement on 8 October 2020 said that she had been told by Mr Deng that Anas was a man before looking him up on Facebook. The applicant submits that Ms Mabior’s responses to questions regarding these inconsistencies were confusing and evasive. I accept that submission. I also consider that Ms Mabior was belligerently dogmatic at times, particularly in her refusal to accept simple propositions. She did, however, eventually agree that she had been told by Mr Deng that the applicant was a man before she looked him up and that she was suspicious that he was one of the attackers at the park;
    3. Ms Mabior initially said on oath that she had not assumed it was the applicant who had told Mr Deng where the park was to facilitate the attack. When confronted with the fact Ms Mabior had said exactly that in her 8 October 2020 statement, she agreed that she had assumed that fact but she did not think police had put that in her statement;
    4. Ms Mabior swore that the moment she saw the applicant she remembered him from the barbeque. She explained that she could not have forgotten a face she had only seen the weekend before. This evidence is of course contrary to the recording in the aftermath of what occurred at the park when police had asked Ms Mabior if she had recognised any of the attackers and she had said she had not. Ms Mabior was unable to provide a satisfactory response to this discrepancy; 
    5. Ms Mabior also accepted that when she spoke to the police officer for about half an hour at the hospital, she made no mention of a man in a green hoodie whom she had recognised at a barbeque. Ms Mabior’s explanation for this, says the applicant, is not convincing given she provided considerable detail of other matters from the attack including naming another person, estimating the height and weight of the person who struck her, and describing what that person was wearing;
    6. Ms Mabior said that when she and Ms Awan looked the applicant up on Facebook she recognised him immediately but she could not recall if she looked at any other photos of him after recognising him, what photo she looked at, or whether there were other people in that photo. However, after a break in committal of 10 months, Ms Mabior said she did recall the photo she had looked at. That was said to be a photo of the applicant and his father on Father’s Day (as Ms Mabior had said in her statement);
    7. Ms Mabior changed her version of what she had seen the applicant armed with, claiming he had been wielding a knife but later stating he was armed with a bat with long wires around it. Ms Mabior later confirmed that he had only ever had a bat;
    8. Ms Awan said that she was telling the truth when she told police at the scene that she did not recognise anybody and that it was only when she got home and started to look up on Facebook and discuss things with Ms Mabior that she started to think she had recognised somebody;
    9. Ms Awan stated that after she gave her first statement in which she had said she did not recognise the man in the green hoodie, she went home, discussed who had been in the park with Ms Mabior, and looked at the Facebook photo. She said that she could not remember who, but one of them said the man in the photo was the man from the barbeque. Contrary to her first two statements, Ms Awan claimed that she recognised the applicant but that she just could not work out where from. Ms Awan went on to say that she only remembered where she had seen the man when she looked at the Facebook photo;
    10. Ms Awan said that she and Ms Mabior looked at between five and ten photographs of the applicant on Facebook. Ms Awan claimed she recognised the applicant from the first photograph she saw on Facebook, which was a photograph of him alone taking a selfie approximately 30 centimetres away. The applicant emphasized that the police brief contains the applicant’s Facebook profile photos but none of them match the description given by Ms Awan, and all involve at least one other person; and
    11. Ms Awan gave various accounts about what the man in the green hoodie jumper was doing. She had said he had a bat, but it was by his side, and she never saw him raise it. Ms Awan also said she never saw the man do anything else after initially sighting him. Ms Awan said she only saw the man for a couple of seconds, and that she had only seen the applicant for a few seconds at the barbeque.
32. [32]
    Each case of this kind turns on its facts. I accept the applicant’s submissions about the frailties of Ms Mabior’s and Ms Awan’s evidence. But it is relevant too that the present case is one of recognition and identification, in the sense that the applicant was, according to both witnesses, not a complete stranger.

Consideration

33. [33]
    The principles identifying the potential for a miscarriage of justice arising out of  identification evidence are well known.^[14] Long before the advent of Facebook, identification evidence, particularly in relation to strangers, has been described as “notoriously uncertain”,^[15] “often proved to be unreliable”^[16] and “proverbially untrustworthy”.^[17] It is also testimony that has been described as “seductive”^[18] and very persuasive, and it is a matter about which witnesses may be over-confident and dogmatic.^[19]
34. [34]
    The risk of the contamination of identification evidence through the subconscious effect of seeing a photograph upon a witness’ recollection of the actual appearance of an offender is often described as the “displacement effect.”^[20] This is not a new concept.  In R v Crawford (2015) 123 SASR 353, the court referred to the descriptions of the “displacement effect” given by Stephen J in Alexander v The Queen (1981) 145 CLR 395 (and in several other cases) as follows:^[21]

“Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.”^[22]

35. [35]
    The problems with photo identification in the age of Facebook were discussed in some detail by Peek J in Strauss v Police (2013) 224 A Crim R 389, who recognised “a new generation of private investigators” who use Facebook to search profiles.^[23] Peek J acknowledged a conundrum: whilst this new phenomenon may lead to the acquisition of suspects that police may not have otherwise obtained, it also creates great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law.^[24] 
36. [36]
    The sole pillar of the Crown case is founded on the identification evidence from each of Ms Mabior and Ms Awan. That evidence was given in their respective and various police statements a few days after the attack. The evidence was to the effect that the applicant was one of the 10 men who had attacked Ms Mabior and Ms Awan’s group, and that they recognised the applicant because they had met him at a barbeque a few weeks earlier.
37. [37]
    This evidence was vigorously tested by the applicant’s senior counsel in cross-examination at committal. This further diminished the quality, weight and reliability of the identification of the applicant by Ms Mabior and Ms Awan. This is compounded by the fact that both women did not implicate the applicant at the time, but only later when his name was suggested by a co-accused and they visited his Facebook page. The contamination of the identification evidence of Ms Mabior and Ms Awan is spread by the fact that the applicant had not been independently and separately described by Ms Awan and Ms Mabior prior to looking at Facebook, and because not all the photos they viewed are known or available for disclosure. These circumstances certainly weaken the pillar of the Crown case so that it starts to lean.
38. [38]
    But the pillar does not crumble to such an extent that the evidence is so lacking in substance that it is “virtually useless”.^[25] Despite the rigour of the cross examination in the committal hearing, it cannot be overlooked that neither Ms Awan nor Ms Mabior resiled from their evidence that the applicant was present at the attack.^[26] On their evidence, the applicant was a person that both witnesses had met on one previous occasion, albeit for a short period of time. Their identification evidence is of recognition, rather than of identification of a stranger. The Crown case remains, in my respectful view, sufficiently supported by evidence of probative value.
39. [39]
    The evidence identifying the applicant as an offender, where that is the primary issue in the case, is plainly probative and admissible.^[27] In the nuanced context of this case, I am not satisfied that the evidence is of such little probative value that it is outweighed by its prejudicial effect.  The various weaknesses in the identification evidence can be adequately and fairly addressed in a carefully constructed and detailed direction to the jury to minimise any prejudice. 
40. [40]
    It follows that I am not satisfied that this court’s discretion to exclude the identification evidence of Ms Awan and Ms Mabior ought to be exercised.
41. [41]
    I therefore refuse the application.