R v Hassan - [2004] VSC 84

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1481 of 2003

THE QUEEN

MOHAMUD HASSAN

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JUDGE:	REDLICH J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 January 2004 to 30 January 2004
DATE OF RULING:	21 January 2004
CASE MAY BE CITED AS:	R -v- Hassan
MEDIUM NEUTRAL CITATION:	[2004] VSC 84

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Ruling No. 1

Application to exclude police opinion evidence that accused and person in video the same – Decision in R –v- Smith (2001) 206 CLR 650 distinguished – Circumstantial evidence of similarities in appearance, mannerism and apparel between accused and person in video – Application to exclude – No presumptive prejudice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused	Mr G. Lyon	Victoria Legal Aid

HIS HONOUR:

At about 4.30 a.m. on 14 June 2002, Andrew Smith received a stab wound to the head whilst he and other persons were asleep on the landing outside the Collins Street Baptist Church. It is the Crown case that the accused was observed walking away from the scene shortly after the deceased was stabbed. Approximately two and a half hours earlier the accused and persons other than the deceased were involved in a scuffle at the base of the steps outside the church. A police vehicle was called and in an attempt to diffuse the situation a second unit was called which conveyed the accused to his brother’s home. Andrew Smith died as a result of this injury on 12 July 2002.

The identity of the offender who stabbed the deceased is in dispute. The Crown relies upon footage obtained from a security camera in Swanston Street which it alleges has filmed the accused wearing white trousers and a long sleeved white top walking south along Swanston Street towards Collins Street shortly after 4.30 a.m. The identity of the person so filmed is also in dispute. The Crown seeks to lead evidence from the police officers who attended at the church earlier in the morning and other witnesses to establish that the video footage is likely to be of the accused.

Mr Lyon, on behalf of the accused, has objected to the use of such evidence on the basis that it is either irrelevant or inadmissible.

Each of the police witnesses intend to give evidence that there are similarities in aspects of the appearance of the person in the video which they had viewed, and the appearance of the accused when he was observed earlier on the morning of 14 June 2002 outside the church. The police witnesses will, if permitted to do so, give evidence that the person depicted in the video was of the same or similar kind of build to the accused. Constables McMahon, Coad and Kealy would give evidence that the person depicted in the video was wearing the same or a similar kind of top to the one which they observed the accused wearing earlier that…

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 Hassan

Details

AGLC: R v Hassan [2004] VSC 84
Case: [2004] VSC 84
Decision Date: 21 January 2004

CaseChat Overview and Summary

The case of R v Hassan involved an application to exclude evidence provided by police opinion that the accused and a person in a video were the same individual. The matter was heard in the relevant court, which was tasked with determining the admissibility of this evidence. The dispute centred around whether the opinion evidence of the police officers, who were not experts in the field of identifying individuals from video footage, should be allowed in court. The court needed to consider whether there was a risk of the evidence causing presumptive prejudice, and if so, whether the probative value of the evidence outweighed this risk.

The primary legal issue before the court was whether the opinion evidence of the police officers should be excluded under the principles set out in R v Smith. This case established that police opinion evidence of identification could be admitted if it was shown to be reliable and relevant, and if there was no significant risk of causing presumptive prejudice. The court had to determine whether the evidence in this case met these criteria. Specifically, the court needed to assess the reliability of the police opinion, the relevance of the evidence, and whether there was a risk of presumptive prejudice.

The court considered the evidence presented and distinguished the current case from R v Smith. It found that while the police officers were not experts, their opinion was based on circumstantial evidence of similarities in appearance, mannerisms, and apparel between the accused and the person in the video. The court concluded that this evidence did not give rise to presumptive prejudice, as it did not unfairly sway the jury against the accused. Furthermore, the probative value of the evidence was significant in establishing a connection between the accused and the person in the video. Therefore, the court ruled that the opinion evidence of the police officers should be admitted.

The court ordered that the opinion evidence of the police officers regarding the identification of the accused and the person in the video be admitted. This decision was based on the reliability of the evidence, its relevance to the case, and the absence of presumptive prejudice. The court's ruling ensures that the jury can consider this important piece of evidence in determining the outcome of the case.

Orders