Director of Public Prosecutions v Zakarie

[2020] VCC 1710

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01596

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOUHAMED ZAKARIE

---

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2020
DATE OF JUDGMENT:	27 October 2020
CASE MAY BE CITED AS:	DPP v Zakarie
MEDIUM NEUTRAL CITATION:	[2020] VCC 1710

REASONS FOR JUDGMENT
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menon	Office of Public Prosecutions Victoria
For the Accused	Mr A. Pyne	Michael J. Gleeson & Associates

1HIS HONOUR:  Mouhamed Zakarie has pleaded not guilty to two charges:

a)that on 21 December 2018, he entered as a trespasser a building at 29A Kiora Street, Altona North with intent to assault a person and at the time of entering a person was present in the building and he knew a person was then so present;

b)on the same date and at the same place, he recklessly caused injury to Brock Marsh.

2The sole issue in this trial is the identification by Mr Marsh of Mr Zakarie as one of the two men who entered his garage and attacked him.  I will refer to the entry and attack as 'the incident'.  The incident occurred in the early hours of 21 December 2018.  The other elements of the two charges were not in issue and were established on the evidence.

3I have tried this case without a jury.  An application to do so was granted on 6 October 2020[1]. Section 4A of the Jury Directions Act 2015 applies (the Act)[2]. In part, it provides that my reasoning with respect to any matter in relation to which Parts 4, 5, 6 and 7 makes provision must be consistent with how a jury would be directed in accordance with the Act.  Those Parts contain the directions a judge might give a jury.  For example, Division 4 of Part 4 deals with identification evidence.     

[1] [2020] VCC 1111.

[2] By virtue of s. 420ZF of the Criminal Procedure Act 2009.

Circumstances

4On 21 December 2018, Mr Marsh was living at 29A Kiora Street in Altona North with his partner, Rebecca Bella.  29A Kiora Street is the front unit of two units.  It is a single storey building with an attached garage at the front of the unit. There were also two or three CCTV cameras: one at the front of the garage, which was not working, and the other or others near the front door, looking both inwards and outwards.  Mr Marsh installed the cameras, partly for protection, some six months before 21 December.     

5Mr Marsh first met Mr Zakarie a few months before 21 December.  Mr Zakarie was friendly with Mr Marsh’s next door neighbours, described as a bunch of young people and, in particular, a man called “Les”.

6In those few months, Mr Marsh met Mr Zakarie five or six times, usually outside the front of 29 A Kiora Street, with the longest of those meetings lasting about 30 minutes.  Mr Marsh had also spoken to Mr Zakarie on the phone once or twice with a phone call occurring about a week earlier when Mr Zakarie rang
Mr Marsh.  

7Despite their short acquaintance, Mr Marsh and Mr Zakarie managed to disagree over a motor vehicle and a laptop.  They spoke about Mr Marsh’s motor vehicle about a week before 21 December.  Mr Marsh had heard that
Mr Zakarie had something to do with its theft, something Mr Zakarie denied. 
Mr Marsh could not say when they spoke about the laptop.  There were two things about the laptop.  Mr Marsh believed Mr Zakarie had broken the laptop and he was upset at the way Mr Zakarie had spoken to his partner, Ms Bella, about it. 

Night of 20 December

8During the evening and night of 20 December and into the early morning,
Mr Marsh was at his home with his partner and busied himself fixing bikes.  He was also smoking cannabis and ICE.  He believes he smoked 1 or 2 grams of cannabis and 1 or 2 points of ICE. 

9He used the cannabis before midnight and the ICE between 8 pm and 10 pm.  He may have smoked more than 1 or 2 points of ICE during the night of 20 and 21 December.  If he did, it was not much more.  It is also possible he smoked more than 1 or 2 grams of cannabis.  When he went to the garage, Mr Marsh agrees he was drug affected. 

10Pausing there, around the time of the incident, Mr Marsh was in the habit of smoking a few points of ICE in the evening.  It was also his habit to smoke 1 or 2 grams of cannabis each night.  He had been smoking both drugs nightly at those quantities for about three years.  He had used cannabis for much longer, since he was 14, which was many years earlier.  It is possible he drank alcohol on 20 December.   

The incident

11In the early hours of 21 December, Mr Marsh went to his garage to get a spark plug for his bicycle: it has a small petrol motor.  Mr Marsh believes it was his consumption of ICE that saw him working on his bicycle after midnight.

12There is only one entrance to the garage, a roller shutter door.  He opened that door and entered the garage, leaving the shutter open.  The garage was empty of any motor vehicle.  From the entrance, he went to the back or rear of the garage, walking about 5 metres.  In the middle of the garage is a light in the ceiling. It was lit.

13After a few minutes, he heard someone speaking behind him and the sound of footsteps.  He heard the words, 'Here he is' or, 'There he is'.  He did not recognise the voice.  This was the first time Mr Marsh was aware there was someone else in the garage.  When he heard the words and footsteps, he was on his hands and knees, searching through a toolbox.  He was facing away from where the voice and footsteps were coming.  He turned to rise and was struck on the back of his head with an object.  It was a serious blow, which sent him flying to the ground.  He was almost rendered unconscious by the blow.  Somehow after the blow, he found himself almost lying on his back.  He was then kicked to the face more than once.  He believes he covered his face with one of his hands.  During this attack, which happened quickly, Mr Marsh looks up and says he saw Mr Zakarie and someone behind him.  Partly behind these persons was the overhead light.  It was the only light on in the garage.  He lost consciousness and remembers nothing more until waking up in hospital.

14As to the identification, Mr Marsh said he was 100 per cent sure it was Mr Zakarie[3].  Apart from identifying Mr Zakarie, Mr Marsh could say little else.  He could not say what the person was wearing.  Even though he saw a shoe, he could not say what sort.  

[3] Transcript at p.11.

Hospital

15Mr Marsh was taken to the Footscray Hospital and then to its emergency department but he recalls nothing of what happened there.  He was taken to the radiology department and underwent scans.  He remembers nothing of that.  He remembers waking and immediately leaving and attending a police station to report what had happened to him.

16Seven pages of records of the hospital were admitted into evidence.  Three of the pages appear to be the results of a blood test or tests.  The significance, if any, of those results was not the subject of expert opinion and I will ignore them.

17The next page is a report of CT scans of Mr Marsh’s brain and cervical spine.  The radiologist’s conclusions were:

- no acute intracranial abnormality was identified.

- minimally displaced left nasal bone fracture.

- small occipital scalp haematoma.  Pausing there, I must say the photographs of the back of Mr Marsh's head did not suggest a 'small haematoma'. 

- no acute cervical spine fracture.

18The last three pages is a copy of a letter, dated 21 December 2018, from an emergency physician at the hospital to Hoppers Super Clinic, presumably where Mr Marsh’s general practitioner practises.  No doubt, the content of the letter came from the clinical notes of the hospital.  Among other things, the wound at the back of the head did not require suturing or gluing.     

Visit by detective

19On 23 December, Olivia Dennison, a detective, visited Mr Marsh at 29A Kiora Street.  Although he cannot now recall what he said to the detective, she recalls he told her about the incident, about Mr Zakarie being the offender and gave her Mr Zakarie’s phone number and address.  He also told her his assailants were driving a black car, a four wheel drive or a Hilux.  He also told her the card to his CCTV camera was full and that was why there was no footage available.  She photographed Mr Marsh, the front of the unit and the garage. 

Interview

20On 25 January 2019, Detective Dennison interviewed Mr Zakarie.  The interview was audio-visually recorded and, subsequently, transcribed. Having watched the recording and read the transcript, nothing emerges except repeated denials of his involvement.   

Legal considerations

21In this case, Mr Marsh says he recognises Mr Zakarie as one of the two men involved in the attack upon him.  The Jury Directions Act 2015 (the Act) sets out the directions a trial judge must give to a jury if requested to do so by the prosecution or defence counsel. In the context of a judge alone trial, and in light of s.4A, I should:

(a) warn myself of the need for caution in determining whether to accept the evidence and the weight to be given to it;

(b) inform myself of the significant matters that I consider may make the evidence unreliable;

(c) inform myself that -

(i) a witness may honestly believe that his evidence is accurate when the witness is, in fact, mistaken; and

(ii) the mistaken evidence of a witness may be convincing;

(d) inform myself that mistaken identification evidence has resulted in innocent people being convicted.

22Mr Zakarie’s counsel sought all directions under s.36(3), but that under sub-s(d) is irrelevant in this case.  There is only one identification witness.       

23The above matters stem from unfortunate experience.  As the High Court said in Domican v R[4]:

'Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.'

[4] (1992) 106 ALR 203 at 207.

24Leaving aside the issue of special rules, in some cases, there can be potentially no greater seductive effect than that conveyed by identification by recognition.  The seductive effect can be a line of reasoning which gives too much weight to the ability to recognise and too little to the circumstances under which the recognition is said to occur.  It is unhelpful to speculate about Mr Marsh's thought processes in arriving at his identification of Mr Zakarie.

25Mr Zakarie’s counsel raised the definition of 'other misconduct evidence' in paragraph (c) of s.26 of the Act.  He referred to Mr Marsh’s belief that Mr Zakarie had spoken harshly to Ms Bella.  This may technically be such evidence but is of no moment.  As requested, I would give myself the relevant directions set out in s.27.

26The associated submission that this belief gave Mr Marsh a reason to think the attacker was Mr Zakarie is speculative and unhelpful. 

27It may seem odd in a judge alone trial to be asked to direct oneself under s.41 of the Act.  No doubt out of an abundance of caution, Mr Zakarie's counsel did just that.  I will direct myself in accordance with the section. 

Discussion

28There are two issues about the credit of a witness: whether he or she is credible or truthful; and, if so, whether the witness’ evidence is reliable.  The truthfulness of Mr Marsh was not put in issue and rightly so.  He appeared to me a truthful witness.  What is in issue is the reliability of his identification of Mr Zakarie. 

29This is a case of recognition.  Mr Marsh had seen Mr Zakarie five or six times over the space of a few months.  Although one such meeting lasted about 30 minutes, Mr Marsh was not very familiar with Mr Zakarie.  However, the relationship was marked by some controversy over a laptop, Ms Bella and a motor vehicle.  These were reasons for Mr Marsh to remember Mr Zakarie and how he looks. 

30The issue is the reliability of the identification. In assessing, there are these matters to consider:

a)    Mr Marsh describes the blow to the back of his head as 'serious'.  It nearly rendered him unconscious.  Sometimes photographs can give a misleading impression of a physical injury.  In this case, the two photographs of the back of his head reveal a large V shaped wound.  It appears to span a quarter of the rear of the head.  It was a serious blow.  It caused damage but did not require suturing or gluing. Although what Mr Marsh meant when he said the blow nearly rendered him unconscious was not explored, at the very least, it must mean he was dazed'

b)    The blow was followed almost immediately by kicks to the face, which did render him unconscious.  The blow and the kicks happened very quickly.  The assault was unexpected and significant.  Mr Marsh may well have raised one of his hands to protect his face.  If so, then his view of the person may have been obscured.  Nevertheless, in this short space of time, Mr Marsh looks up and is convinced he sees Mr Zakarie.  He is lying on his back.  He is looking upwards to the person.  There is a light above and partly behind the person.  The person's face must be shaded or darkened to an extent for there was no lighting from ground level which would illuminate the person's face.  Nevertheless, I agree with the prosecutor that that circumstance alone does not render the identification implausible or impossible;

c)    At the time of the incident, Mr Marsh was drug affected.  To him, his use of ICE was the reason he was still awake in the early hours of 21 December working on his bicycle.  It acted as a stimulant.  The incident could have occurred as late as 3 am.  He had used both ICE and cannabis during the evening and night of 20 December.  The evidence did not reveal what other effects, if any, these drugs had on him.  They did not stop him working on his bicycle.  The prosecutor submits it would be wrong to reason being affected by drug taking would impair his ability to recognise Mr Zakarie.  I disagree.  He is a witness affected by drugs.  At the time of his identification, he had received a blow to the back of his head.  The evidence does not allow me find what precise effect, if any, the combination of the earlier ingestion of cannabis and ICE and the blow had on Mr Marsh's ability to see but those matters must leave in me some uncertainty.  One must harbour some doubt about his ability to recognise Mr Zakarie; 

d)    There is nothing to be gained from what Mr Marsh said to the practitioners at the hospital.  What they wanted was information to guide their medical investigations.  They were not investigating the incident from a police perspective;

e)    Mr Marsh went from the hospital to a police station where he made a statement, identifying Mr Zakarie as one of his attackers.  He was convinced of the identity of one of his attackers.  It underlies his evidence of being 100% sure of his identification;

f)     On 23 December, Mr Marsh told Detective Dennison of a motor vehicle.  At the trial, he had no memory of a motor vehicle at all, let alone the type he described. His memory of the incident has faded.  He cannot now say anything else about the person he identifies.  He cannot say what he wore.  This may be part of his fading memory.  It does not give confidence in his ability to identify Mr Zakarie as one of the two men involved;

g)    It is interesting that Mr Marsh did not recognise the speaker who identified him by saying, 'Here he is'.  Apparently, the speaker knew Mr Marsh but it was not Mr Zakarie.  Mr Marsh saw the need for security in the form of CCTV cameras, both for protection of himself and his property.  He saw the risk posed by others.  It raises the possibility that someone, other than Mr Zakarie, was responsible for the attack;

h)    The fact Mr Zakarie participated in a record of interview is a neutral circumstance.  He knew he was not obliged to do so but he was keen to tell his side.  As he put it[5]: 'So I'm sure that hopefully, like, we can work it all out.  You know what I mean?'.  In that he did not succeed despite repeated denials of involvement.  He was charged and remanded into custody;

i)     There is nothing in his answers in the interview or the way he gave them to suggest he is not telling the truth.  I could not be satisfied his early answers showed caution or were an attempt to find out what happened.  The problem with Mr Zakarie is that he appears inarticulate.  His answers are punctuated by the expression, 'You know what I mean', its variation, 'You know' and the word 'like'.   

[5] Answer to Question 20.

Conclusion

31The only disputed ingredient of each offence is whether Mr Zakarie was one of the two men who entered the garage and attacked Mr Marsh.  The other elements are established.

32I am not satisfied beyond reasonable doubt that Mr Zakarie was one of the two men.  Although Mr Marsh is a truthful witness, the surrounding circumstances, including the incident, raise a reasonable doubt as to the reliability of his identification.  The attack was unexpected and swift.  The blow to the back of the head left Mr Marsh dazed.  It was followed by kicks to his face.  Between the blow and the kicks, Mr Marsh had a small opportunity to see his attackers.  The face of the attacker he identified was darkened through the position of the overhead light.  Throughout the incident, Mr Marsh was affected by his earlier ingestion of two drugs.  Overall, his ability to recognise Mr Zakarie as one of his attackers was seriously impaired. 

33I find Mr Zakarie not guilty of both charges.   

‑ ‑ ‑