Director of Public Prosecutions v Walker

[2022] VCC 1854

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01726

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY WALKER

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2022
DATE OF RULING:	27 October 2022
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2022] VCC 1854

RULING
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Subject:

Catchwords:              Criminal Law

Legislation Cited:      Evidence Act 2008 ss 114, 115, 137

Cases Cited:

Ruling:  Pre-Trial Ruling

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr A McKenry	Ms M Koufidis
For the Defence	Mr J Miller	Mr J Hurley

HIS HONOUR:

1The accused man, Timothy Walker, is charged with numerous offences allegedly committed between September and November 2020. The defence and prosecution informed the Court that all charges, save those allegedly committed on 2 November 2020, have resolved.

2At 2:54am on Monday 2 November 2020. A white Mitsubishi Triton was tracked by police speeding through the Somerton, Broadmeadows and Fawkner areas. It then travelled to Greensborough and Reservoir and Preston. It was driven along the Eastern Freeway to Lilydale then back down the Eastern Freeway to Chandler Road, where it travelled to a 7/11 Store in Church Street, Hawthorn East.

3A female passenger identified as Amanda Dunn alighted from the Triton and attempted to obtain fuel. Dunn is the girlfriend of the accused man. A police vehicle approached from the north and Dunn ran back to the Triton which made a U turn. The Triton was then reversed into the approaching police vehicle.

4A second police vehicle driven by SC Tivendale with Constable Brewster, as a passenger, drove into the service station and deliberately collided with the Triton. The interaction can be seen on CCTV footage, Exhibit C. The driver of the Triton then moved the Triton backwards and forwards, colliding with the police vehicles until it was able to escape and drive away. Tivendale and Brewster were effectively looking straight into the Triton through its windshield. From my viewing of the CCTV footage, the interaction of Tivendale and Brewster with the Triton in the 7/11 store lasted between 5 and 10 seconds.

5In his first statement SC Tivendale stated;

“The male driver was 25-35 years old, Caucasian, has a small round head with short dark hair and a moustache. The female passenger was 25-35 years old, Caucasian with blonde hair.”

6In Constable Brewster’s first statement he described the movement of the vehicle and said;

“During the incident I observed a male driving the offending vehicle and a female passenger. The male was approximately 30 years old, Caucasian, medium build with a thin moustache and short brown hair. The female was approximately 30 years old, Caucasian, slim build with shoulder length blonde hair.”

7Both Tivendale and Brewster were separately shown differently arranged photo boards – each with 12 images – in the early hours of 5 November 2020. Each were told not to conclude or guess that the images contained a photograph of the person they saw. Both were told that they did not have to identify anyone. Both separately identified and image of the accused as the driver of the Triton.

8If is these identifications that the defence seek to have excluded from evidence. In respect of each identification, counsel for the accused submits that the danger of unfair prejudice outweighs the probative value of such evidence, and thus should be excluded pursuant to s137 of the Evidence Act 2008.

9At the time each identification was made the accused was not in police custody. At about 1.30pm on 5 November 2020 the accused and Ms Dunn were apprehended after the accused crashed the white Triton utility into a tree. It is, therefore, common ground that the provisions of s114 and s115 of the Evidence Act 2008 have no relevance to the question to the admissibility of each identification.

10It is also conceded that the accused bears the onus of establishing that the prejudice attending identification exceeds the probative value of such evidence on the balance of probability.

11The accused filed written submissions, Exhibit 1. In summary the defence submitted;

(a)   The construction of the photoboards created unfair prejudice.

(b)   The process involved was unfairly prejudicial as both police witnesses knew the offenders photograph would be depicted in the photoboard, and,

(c)   The circumstances of the purported identification were such that the opportunity to observe was limited and made at a time when both witnesses were subject to acute stress.

12In addition, the accused pointed to the fact that mistaken identifications are frequently given with force and assurance. These problems, it was submitted, could not be cured by direction.

13It is convenient to deal with the issues surrounding both identifications at the same time. The defence raise identical submissions in respect of each, and the principles relevant to each purported identification are the same. The accused’s’ submissions deal with both identifications in a global manner.

14Construction of Photoboard.

The defence submitted that the 12 images employed in both photoboards (Exhibit B1 and B2) are not consistent with the descriptions given by the witnesses in their statements. Reference is made to the number of men with moustaches. A submission that the strong borders and artifacts visible affected the process was withdrawn by counsel for the accused when the proper photoboards were produced to the Court. 

15I have carefully examined both photoboards and the images contained in each.  In my view there is nothing in the submission made by the accused. All of the images appear to be of men of similar age. 11 have dark hair and all have various forms of facial hair. 10 have some form of moustache. In my view all are similar men and there is nothing unfair about the manner in which each photoboard is constructed.

16Circumstances of the Viewing.

The defence submitted that the witnesses had limited time to make an observation and identification of the driver of the Triton. In addition, it was submitted that the stress of the situation detracted from a proper identification.

17Both Tivendale and Brewster were briefly cross-examined at the committal and each detailed what they observed the driver of the Triton to do. Both were looking at the driver from a distance of 2 to 3 metres. Both described his movements inside the vehicle. The area was well lit, and the Triton was stationary for some of the time. The windshield of the Triton is clear, and the driver can be seen through the glass in the CCTV footage. Both police officers had in effect ring side seats to what was unfolding before them. Both made their identifications a little over three days later when the events were fresh in their memories. Finally, there is no evidence that either officer was overstressed or in great fear.

18Certainly, the situation confronting them was volatile and fast moving, but each witness is a person trained to make careful observations. The police were clearly anticipating that the driver of the Triton would behave in just the way he did. The police officers would be less stressed than a civilian member of the public would be likely to be.

19In my view there is nothing in the circumstances surrounding the observations of the police officers that diminishes the probative value of their identifications. Both identifications are in my view highly probative and made in circumstances that would make their identifications reliable.

20The identifications are in my view standard pieces of evidence obtained in the investigation stage of criminal activity. No issue with the employment of photoboard identification can be properly made. Certainly, the jury will be required to be given the usual warnings as to potential dangers associated with identification evidence generally and photographs in particular. Counsel will be consulted as to the form of these directions.

21It follows in my view the defence have failed to establish on the balance of probabilities that the probative value of each identification is outweighed by the risk of prejudice to the accused. Each identification is a probative and important piece of evidence in the prosecution case. There is no prejudice other than the issues that are standard to identification cases and can be covered by appropriate judicial directions. The application to exclude the identifications of SC Tivendale and Constable Brewster is refused.