Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts

[2002] VSC 421

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1527 of 2001

Director of Public Prosecutions

v

Bandali Michael Debs and Jason Joseph Roberts

Ruling No. 10

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	1 October 2002
CASE MAY BE CITED AS:	DPP v Bandali Michael Debs and Jason Joseph Roberts
MEDIUM NEUTRAL CITATION:	[2002] VSC 421

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Criminal law - evidence – similarity – circumstantial evidence not identification - viewing of slides – evidence excluded.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr J.W. Rapke QC with Mr P.B. Kidd and Mr J.J. Serong	OPP
For the accused Debs	Mr P.C. Dane QC with Mr G. Georgiou	Victoria Legal Aid
For the accused Roberts	Mr I.D. Hill QC with Ms S.K. Dawes	Lethbridges

HIS HONOUR:

1. In most helpful submissions Mr Kidd for the prosecution has submitted certain evidence ought to be admitted as circumstantial evidence although not as identification evidence.

1. The evidence is contained in two sources.  First, a statement of the witness, Mr J.T. Donovan, a victim in an armed robbery, in which he said on 21 September 2000 the following in relation to a video of 12 slides, having that day viewed the video (D. 3112):

"I indicated to Detective Inspector Enright that the male persons in slide 1 and 8 were the two closest to the male I saw on 29 March, 1998 during an armed robbery at Sportsmart Noble Park.  Although the two males from the video are the closest, they are not similar enough to really match the person from the armed robbery to my recollection".

Second, a note of the officiating officer, Detective Inspector Enright, as appears in his statement of 21 September 2000 (D. 3459), that the viewing person, Mr Donovan, said:

"1 and 8 would be the two closest but not enough to really match the person in my head".

Slide No. 8 was of the first accused, Mr Debs.

1. The relevant principles are clearly established in Pitkin v R[1]  and in Festa v R[2].  They are that evidence of similarity or resemblance is not identification evidence as such, but depending upon the circumstances of the proofs can be admitted as circumstantial evidence.  As is stated in Pitkin per curiam at 614 and Festa at 397 per Gleeson C.J., where evidence would be insufficient on its own, it can, taken in conjunction with other proofs, be admissible as an element of circumstantial evidence.

[1](1995) 69 ALJR 612.

[2](2001) 185 ALR 394.

1. A helpful statement of principle, as one would expect, was made by King C.J. in Murphy v R[3] as follows:

"If the evidence of the selection of the photographic slide stood alone and were relied upon as identification evidence sufficient in itself to prove the charge, it might well be inadmissible as lacking in probative value.  It could certainly be excluded in the exercise of the judge's discretion.  This evidence was not, however, in the true sense identification evidence.  None of the witnesses were able to identify the photographic slide of the appellant as that of a participant in the robbery.  Nevertheless the evidence did possess, in my opinion, some evidentiary value.  The fact that the three persons each selected, independently of one another, one slide out of 24 as a person similar in appearance to a participant in the robbery, was some evidence tending to support circumstantial evidence in the case implicating the appellant.  In my opinion the evidence was probative and admissible and ought not to have been excluded in the exercise of the discretion."

[3](1994) 62 SASR 123 at 126.

1. Mr Kidd heroically has contended the facts of the present case come within the principles I have stated.  I consider the present facts fall short of attracting those principles.  First, as is plain, this is not identification evidence.  Second, on a proper view of the evidence I consider that the witness did not say that the photograph, 1 or 8, was similar to the robber.  The most he said was that of the slides shown, two were closest to the robber.  That is simply a relative statement in relation to a class rather than a statement of similarity in relation to the robber.  Indeed, the witness never said slide 1 or 8 was similar to the robber.  The statements of the witness, Mr Donovan, fall short, in my view, of that adumbrated by the authorities and accordingly I consider the evidence is not admissible and I exclude it.

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