R v Athuai
[2005] VSC 192
•7 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1503 of 2004
| THE QUEEN |
| v |
| BOLLUS ATHUAI |
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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 | |
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CRIMINAL LAW – Identification evidence - Photoboard identification – At court identification – Discretion.
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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. On 18 November 2003 Alexandra Berry attended the Homicide Squad office. There she was shown a photoboard containing 12 images of African youths. She looked at the images for some time. The inspector in charge of the identification process asked if she could identify any person. Berry responded, “I think No. 2 looks like him because of the structure of his face and his eyes but I am not sure about the nose.” In saying that Berry was referring to the youth who had stabbed the deceased. In her statement which was made shortly after the identification she said that there were other people in the folder who also looked familiar such as No. 9 but out of them all No. 2 “is the one that looks most like the guy who stabbed Hani”. Evidence will be adduced that the person depicted in photograph No. 2 is indeed the accused man.
On 18 November 2003 Hassan Hussain also attended the offices of the Homicide Squad. Independently of Ms Berry he was also shown a photoboard containing 12 images of African youths, which included a photograph of the accused. Hussain identified image No. 7 on that board as being the male who he saw holding the knife shortly before the deceased was stabbed and killed. Photograph No. 7 on the board shown to Mr Hussain is a photograph of the accused man. Dr Lyon accepts that the evidence of Hussain as to the identification by him of that photograph is admissible in the trial.
Dr Lyon submits that the identification evidence of Ms Berry should be excluded in the exercise of my discretion on the basis that it is of little probative value, which is outweighed by its prejudicial effect.
Ms Berry gave evidence at the committal proceeding. In her cross-examination, when the relevant passage of her statement was read to her, she said, “Yes, I wasn’t sure. It was hard.” She was then asked: “What you were saying is that No. 2 was the most similar to the person that you recalled on the night?” She responded: “Yes, that’s correct. That’s all I can really … “.
Dr Lyon’s fundamental submission is that the evidence is of little probative value, and that it may be used inappropriately by the jury, such as by using it to support other identification evidence of the accused. In response Mr M. Gamble, who appeared on behalf of the Crown, submitted that the evidence is relevant and is regularly admitted in criminal trials. He referred to Pitkin v R[1] and R v Clune (No. 2).[2] He contended that essentially it is the function of the jury to assess the weight of the evidence of Ms Berry in selecting the accused man’s photograph; R v Fahad.[3]
[1](1995) 130 ALR 35.
[2][1996] 1 VR 1.
[3][2004] VSCA 28 at para 21.
It was, correctly, accepted by the Crown that the evidence of Ms Berry does not constitute direct identification evidence, but rather that it is evidence that the accused man has a similarity in appearance to that of the offender. While evidence of that type is not positive evidence of identification, nevertheless it has been held to be admissible as part of the circumstantial evidence in cases involving issues of identification; see Murphy v R[4]; Festa v R.[5] Indeed, Dr Lyon did not contend that, as a category of evidence, such evidence is inadmissible per se. Rather, he submitted that, notwithstanding that the evidence may be admissible, I should exercise my discretion to exclude it because its prejudicial potential outweighs its probative value; Festa v R; [6] Alexander v R.[7]
[4](1994) 62 SASR 121 at 123-4 (per King CJ).
[5](2001) 208 CLR 593 at paras 10-14 (per Gleeson CJ), and at paras 56-57 (per McHugh J).
[6]Above, especially at paras 51, 63 (per McHugh J).
[7](1981) 145 CLR 395 at 402 (per Gibbs CJ), 430 (per Mason J).
In support of that proposition Dr Lyon first submitted that the evidence of Ms Berry was inherently of little probative value. In particular he pointed out that the evidence was only as to a similarity between the facial features of the accused man and the facial features of the person who stabbed the deceased. Dr Lyon relied on the uncertainty expressed by Ms Berry when picking out the photograph of the accused, and in particular her evidence at the committal proceeding that she was not sure. In response, Mr Gamble submitted that the assessment of the weight and strength of the evidence was essentially a matter for the jury. For example, he pointed out that Ms Berry correctly identified the accused man as being a person at the scene of the incident in which the deceased was stabbed. To that extent Ms Berry’s recollection is demonstrated to be accurate. Ultimately, Mr Gamble submitted it is a matter for the jury, assisted by the appropriate directions given to them by me as trial judge concerning the risks and limitations of any identification evidence, and in particular photoboard identification.
There are a number of factors which affect the weight of the evidence of Ms Berry in respect of the similarity between the accused man and the offender. First, the evidence is subject to the usual risks of false identification involving issues such as the reliability of perception and memory. Secondly, the evidence itself is qualified as Ms Berry herself accepted that she was not sure. Thirdly, it is well recognised that identification from photographs has a number of risks and limitations which are well spelt out in the authorities. Such identification is significantly inferior to identification by means of an identity parade. On the other hand, the depositions show that, at the time of the fatal stabbing, Ms Berry was very close to the assailant. At one stage the assailant’s cap fell off. After he had stabbed the deceased the assailant began to leave, and then came back to collect his cap. When he did so Ms Berry noted that he was smiling, and that he did something to the deceased. He then ran off. Thus although the incident occurred in the small hours of the morning it would seem that Ms Berry had a good opportunity to observe the facial features of the assailant at close quarters. Ultimately the assessment of the weight of Ms Berry’s evidence, if it is admitted, will be very much a matter for the jury; R v Fahad.[8] Certainly I would give the jury comprehensive directions. Those directions would include both the general risk of identification evidence, and the more specific issues involved with photoboard identification. In addition, the jury would be warned that Ms Berry’s evidence does not amount to direct identification of the accused as the assailant. On the matters contained in the depositions I am unable to say, however, that, in light of those directions, a properly instructed jury must conclude that the probative value of the evidence is slight. What weight, if any, a jury should attach to such evidence is essentially a question of fact and thus a question for the jury.
[8]Above, at para 21.
Dr Lyon further submitted that the evidence of Ms Berry’s picking out of the photograph of the accused man has significant prejudicial potential particularly because, as here, the issue is not whether this man was at the scene, but rather whether he was the person who stabbed the deceased. Thus Dr Lyon submitted that it may be one matter to admit evidence of “similarity” where its purpose is to prove that the accused man was at the scene and therefore the perpetrator of the crime charged. However he submitted, in the context of this case, it is quite another matter to admit such evidence where the issue is whether the accused man, who was at the scene, was the person who stabbed the deceased. In those circumstances there are added risks. In particular, there is the risk that the witness, having observed the accused at the scene, might have innocently and subconsciously transposed his facial features to the identity of the man who stabbed the deceased. Further, there is the risk that the jury might succumb to the temptation to reason that “near enough is good enough”, and therefore the accused man was the person who stabbed the deceased. In any trial involving identification such reasoning is flawed for obvious reasons. However, in a case such as this it is doubly flawed because the identification process undertaken at the Homicide Squad office on 18 November 2003 did not involve a comparison of the three men who were actually at the scene, and one of whom was the culprit who stabbed the deceased.
In response, Mr Gamble submitted that the evidence is not unduly prejudicial to the accused, particularly where, as here, the trial judge is required to give appropriate directions in order to preclude the jury from embarking on false processes of reasoning from the use of such evidence. Mr Gamble pointed out that the evidence sought to be adduced in respect of the selection of the photograph by Ms Berry is but one circumstantial fact. It is accepted by the Crown that that evidence, standing alone, is not sufficient to entitle the jury to convict the accused, and that the jury should be directed as such. Nevertheless, it is a relevant circumstantial fact that Ms Berry was able to pick out, as similar to the person who stabbed the deceased, a photograph of the accused man.
Certainly there are risks with the admission into evidence of any identification evidence. Interestingly, in Festa v R (above) McHugh J[9] observed that experience has shown that juries are likely to give the positive identification type of evidence greater weight than it may deserve. In the present case, Ms Berry readily concedes that she was “not sure”. The limitations of her evidence thus are clear and explicit. They can be readily understood by a jury. The type of direction that needs to be given about such evidence is, in my view, easily understandable. It does not require any difficult mental gymnastics by the jury. The limited role of such evidence is apparent, and can be simply pointed out by judicial direction. In those circumstances I do not accept that any prejudicial potential of the evidence outweighs its probative value. Thus I do not consider it appropriate to exercise my discretion to exclude the evidence on that basis. Accordingly, I rule that the evidence is admissible.
[9]At para 64.
At Court Identification
Dr Lyon also objects to the admissibility of evidence from Hussain and from a security guard, Mr Robert Airton, purporting to identify Kuat and Angok at the committal proceedings in September 2004.
Both Kuat and Angok had been interviewed by the informant, Detective Sergeant Mark Butterworth, on 10 October 2003. The committal proceeding in this matter was held at the Melbourne Magistrates’ Court between 8 and 10 September 2004. On 8 September 2004 Mr Hussain attended in order to give evidence. While waiting outside the court room Hussain recognised the person who attacked and punched him on the night Jaber was killed. On that night the person who assaulted Hussain had been wearing an American bandana. Hussain pointed that person out to Sergeant Butterworth. Butterworth identified him as Kuat.
On 9 September Robert Airton also attended at Melbourne Magistrates’ Court in order to give evidence at the committal proceeding. Mr Airton is a security officer at the Southgate complex who had witnessed the incident in which Jaber was killed. While he was waiting at the court, Airton saw a large group of black African people come out of the court room. One of them looked directly at him. Airton recognised that person to be one of the three assailants involved in the incident of 25 September 2003. Airton said that he was not the person who he (Airton) saw stabbing the deceased. Airton pointed the person out to Sergeant Butterworth who identified him as Angok.
Dr Lyon submits that the evidence is irrelevant, and further that it is unfairly prejudicial to the accused.
The Crown submits that the evidence of the identification of Angok and Kuat at the committal proceeding is relevant and admissible. The Crown submits that there were three men involved in the confrontation with the deceased and his two friends, Hussain and Ms Berry. One of them stabbed the deceased. The Crown submits that the evidence, to which objection is taken, is relevant as excluding Kuat and Angok as the person who fatally assaulted the deceased. The accused accepts that he was present during the incident in which the deceased was fatally stabbed. In those circumstances it is submitted that the evidence is relevant as excluding either of the other two protagonists in the fracas as the person who fatally stabbed the deceased.
In response Dr Lyon contends that the evidence relates to two young men who are not before the court and who are not witnesses in the case. Neither of them can be made amenable to the court’s process. The evidence, it is argued, amounts to no more than a narration that impermissibly bolsters the photoboard evidence of identification of the accused. Thus it is submitted on behalf of the accused that the evidence amounts to identification by cumulative exclusion of others who are not seen by the jury.
Dr Lyon further submitted that since Mr Airton could not identify from the photoboard the actual person who stabbed the deceased, it is more dangerous to allow him to give additional evidence as to who he says is not the offender. He contended that that is an even more prejudicial species of identification by exclusion.
It has not been submitted that the processes of “at court identification”, of themselves, are so unreliable that the evidence should be excluded as being insufficiently reliable. Identifications of accused persons at court do have particular limitations, but are nonetheless admissible in an appropriate case; see Festa v R.[10] Similarly, identifications of persons associated with the accused at court also have limitations, but that is no reason, of itself, to exclude such evidence. In the present case, both Hussain and Airton made their “identification” without any request to do so by the police. Further, in each case, the witness apparently made the relevant identification from a group of young African males who had attended court that day.
[10]Above, at para 18 (per Gleeson CJ), para 77 (per McHugh J).
In this case the argument is that the evidence is unfairly prejudicial because it involves a process of elimination of the two other young men who were in the fight as being the person or persons who fatally stabbed the deceased. The evidence is, as I have stated, relevant to excluding, as potential offenders, the two other persons who were protagonists in the fight in which the deceased was killed. In this case that issue is, it would seem, particularly relevant. The accused’s case is not that he was not present at the scene. Rather the accused’s case is that while he was present at the scene it was not he who fatally stabbed the deceased. There is evidence that the deceased and his two friends spoke to three young African males on the north bank of the Yarra River, and that it was the same three young African males who approached them and attacked them on the south bank shortly thereafter. The accused accepts that he was one of those three men. Thus the issue is whether the Crown is able to prove beyond reasonable doubt that it was the accused man who stabbed the deceased. One potential hypothesis consistent with innocence is that it was not the accused, but one of his two companions, who was responsible for stabbing the deceased. The evidence on which the Crown seeks to rely is relevant to the exclusion of that hypothesis. In those circumstances, the evidence is, I consider, directly relevant to the issues in the trial.
As I understand it the main contention made by the accused is that such proof involves evidence of identification of two young men who are not before the jury. Thus it is pointed out that any cross-examination of those witnesses as to their identification of Angok and Kuat may be inhibited by the inability of the cross‑examiner to compare any description given by those witnesses of Kuat or Angok (as the case may be) with a person physically before the jury. While, in some circumstances, that may be some disadvantage for the cross-examiner, on the other hand it may be to the cross-examiner’s advantage. After all the witness will not have the ability to refresh his memory as to the person sighted by him at the committal court while giving evidence in court. Further, a number of matters may be appropriately pointed out to the jury by counsel for the accused, including the delay between the incident and the committal proceeding, the different attire worn by Angok and Kuat at the committal proceeding, and the difference in the circumstances in which the second identification was made. Thus I do not consider that, if the evidence were admitted, the accused would be at an unfair disadvantage in meeting it. On the other hand, as I have pointed out, I consider that the evidence is directly relevant to a critical issue in the case, and thus has important probative value. For those reasons, I do not consider that, in the exercise of my discretion, it is appropriate to exclude the evidence.
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