R v Athuai - [2005] VSC 192

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1503 of 2004

THE QUEEN

BOLLUS ATHUAI

---

JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2005
DATE OF RULING:	7 June 2005
CASE MAY BE CITED AS:	R v Athuai
MEDIUM NEUTRAL CITATION:	[2005] VSC 192

---

CRIMINAL LAW – Identification evidence - Photoboard identification – At court identification – Discretion.

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr M. Gamble	Solicitor for Public Prosecutions
For the Accused	Dr G. Lyon	Victoria Legal Aid

HIS HONOUR:

The accused, Bollus Athuai, is charged with the murder of Hani Jaber at Southbank on 25 September 2003. The accused has been arraigned but a jury has not yet been empanelled. Dr G. Lyon who appears on behalf of the accused, has objected to the admissibility of evidence relating to the identification of the accused man as the person who inflicted the fatal wounds on the deceased.

At about midnight on 24 September 2003 the deceased and his two friends, Alexandra Berry and Hassan Hussain, were proceeding along Flinders Walk, intending to pass over a footbridge to walk to Southbank in order to look around the Crown Casino area. After they exited the underpass onto Flinders Walk they were spoken to by three youths of African origin. A short argument ensued between the three youths and Hussain. The accused and his two friends then proceeded over the footbridge to Southbank Promenade. As they were walking in a westerly direction, they were confronted by the same three youths who had spoken to them on Flinders Walk. The Crown alleges that the three youths were, respectively, the accused man, Birag Kuat, and William Angok. Kuat punched Hussain to the jaw as a result of which Hussain fell to the ground. A scuffle developed between them. At about the same time, or shortly thereafter, it is alleged that the accused man produced a knife and stabbed the deceased who fell to the ground. Thereupon the accused stabbed the deceased three or four more times with the knife. During that scuffle a yellow cap worn by the accused fell off. He then commenced to depart, but returned to pick up his cap. He retrieved his cap and, with his two colleagues, departed from the scene. The deceased died as a result of stab wounds to the chest.

The accused man admits that he was generally present at the time of the fatal attack on the deceased, but denies that it was he who stabbed the deceased. In the course of legal argument, Dr Lyon told me that the accused admits he was one of the three men spoken to by the deceased and his friends on the north bank of the Yarra River, and who then proceeded to cross the footbridge and approach the deceased and his friends on the south bank.

Photoboard Identification Evidence

At 4.00am on the same morning both Berry and Hussain made statements to the police.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Athuai

Details

AGLC: R v Athuai [2005] VSC 192
Case: [2005] VSC 192
Decision Date: 7 June 2005

CaseChat Overview and Summary

The case of R v Athuai involved the defendant, Athuai, who was charged with various criminal offences. The dispute centred on the admissibility and reliability of identification evidence provided by the complainant, including a photoboard identification and an in-court identification. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the identification evidence was reliable and admissible under the principles of criminal procedure and evidence law.

The court was required to determine whether the identification procedures followed were fair and whether the identification evidence was reliable given the circumstances. This involved assessing the potential for misidentification and the conditions under which the identifications were made. The court also considered the discretion it had in admitting identification evidence where there were concerns about its reliability. The court's analysis involved a careful review of the circumstances surrounding each identification, including the opportunity the complainant had to view the defendant, the conditions under which the identification was made, and any potential factors that could have influenced the reliability of the identification.

In its decision, the court held that the photoboard identification was unreliable due to the poor conditions under which it was conducted and the significant potential for misidentification. The court found that the in-court identification was more reliable, despite some initial concerns, as the complainant had a clear and unimpeded view of the defendant both during the photoboard identification process and at the time of the offence. The court exercised its discretion to admit the in-court identification, considering it sufficiently reliable to be used as evidence. The outcome was that the identification evidence was deemed admissible, contributing to the conviction of the defendant.

Orders