R v Dastagir & Parwani - [2015] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DASTAGIR & PARWANI
[2015] SADC 51
Reasons for Ruling of His Honour Judge Cuthbertson
31 March 2015
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION BY STRANGER
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
Application to exclude evidence of identification by photographic line-up - Home invasion and unlawful detention - Defendants identified by persons present at the house as being two of the three perpetrators - One identifying witness having been sent a photograph of the alleged perpetrator by acquaintance - Identification made by viewing photographic line-up - possibility of flawed identification process by witnesses describing appearance of perpetrator to each other before line-up.
HELD: Identifications permitted - The probative value of the identifications outweighed the prejudicial value - Probative value of the identifications included combined effect of identifications together with other circumstantial evidence - Low risk of prejudice - Use of photographs sanctioned by legislation.
Evidence Act 1929 s 34AB, referred to.
Festa v The Queen (2012) 208 CLR 593; R v Burchielli (1981) VR 611; R v Haidley [1984] VR 229; Hirst v The Police (2006) 95 SASR 260; R v Barnes [1995] 2 Cr App R 491, considered.

R v DASTAGIR & PARWANI
[2015] SADC 51

On 4 February 2014 a home invasion and various associated offences occurred at the home of CS at Northfield. During the afternoon three offenders entered the premises and forcibly detained the occupants of the house.
At that stage the occupants of the house were CS, his partner SH and one of his children Z. During the course of the afternoon his son, R, daughter, C (aged 12) and daughter, Yasmin (aged 6), returned home from school and were also forcibly detained. In addition a friend of the family, AA, also attended at the premises.
There were three offenders. One was described as an Asian man who waited in the bedroom observing the children for most of the time. The other two offenders were reasonably consistently described as the one being taller and thinner (the prosecution say this is Parwani) and the other being shorter and stouter (the prosecution say this is Dastagir).
The Asian man has never been identified or located.
Initially the police did not have any means of identifying the perpetrators.
On 7 February 2014 SH received a text message on her mobile phone from DH (an acquaintance) enclosing three photographs said by DH to have been sourced from Facebook.
Two of the photos (VDP3) show a man walking a dog by some water and a man sitting on a motorcycle. The photographs are photographs of Dastagir.
The photos were sent after SH had received a phonecall from DH advising her that DH had looked at various people’s pictures on Facebook.[1]
[1] See statement of SH dated 7 February 2014.
SH states, “As soon as I looked at the picture marked SHH2 [(the picture of the man walking the…

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 Dastagir & Parwani

Details

AGLC: R v Dastagir & Parwani [2015] SADC 51
Case: [2015] SADC 51
Decision Date: 31 March 2015

CaseChat Overview and Summary

The respondents, Dastagir and Parwani, were charged with home invasion and unlawful detention. The applicants sought to exclude identification evidence provided by witnesses who identified the respondents as two of the three perpetrators during a photographic line-up. The applicants argued that the identification process was flawed as one witness had been sent a photograph of an alleged perpetrator by an acquaintance, potentially leading to a description of the perpetrator shared among witnesses before the line-up. The court was tasked with determining whether the identification evidence should be excluded due to the potential for prejudice and unreliability.

The legal issues for the court to decide included the reliability of the identification process, the potential for prejudice, and whether the probative value of the identifications outweighed the prejudicial value. The court considered whether the identification process was so unfair as to render the evidence inadmissible and whether the probative value of the identifications, combined with other circumstantial evidence, justified their admission. The court also examined the statutory framework governing the use of photographs in identification processes.

The court held that the identifications should be permitted. It found that the probative value of the identifications, when considered with other circumstantial evidence, outweighed any prejudicial value. The court noted that the risk of prejudice was low given the circumstances and the statutory provisions that sanctioned the use of photographs in identification processes. The identifications were considered reliable, and the court concluded that the probative value of the evidence justified its admission.

The court's final order was to deny the application to exclude the identification evidence. The identifications by the witnesses, made through the photographic line-up, were deemed admissible in the trial. The court's decision emphasised the importance of considering both the probative value and potential prejudice of identification evidence, particularly in cases where photographs are used in the identification process.

Orders