R v Ivan Stephen Djerke - [2006] ACTSC 104

R v IVAN STEPHEN DJERKE
[2006] ACTSC 104 (10 October 2006)

EVIDENCE – Previous representation – 84 year old victim of crime with Alzheimer’s disease – video record of identification process.

EX TEMPORE JUDGMENT

No SCC 155 of 2005

Judge: Connolly J
Supreme Court of the ACT
Date: 10 October 2006

IN THE SUPREME COURT OF THE  )
  )  No SCC 155 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

THE QUEEN

v

IVAN STEPHEN DJERKE

ORDER

Judge:  Connolly J
Date:  10 October 2006
Place:  Canberra

THE COURT ORDERS THAT:

The statement and all photographic identification evidence of Mr Lubach be admissible pursuant to s 65 of the Evidence Act 1971.

This is an application by way of a pre-trial application to adduce evidence of a previous representation pursuant to s 65 of the Evidence Act 1971 (the Evidence Act), in the proposed criminal trial of the accused, Ivan Stephen Djerke in relation to an aggravated burglary, threat to kill and unlawful confinement which allegedly occurred in March 2005. Mr Lubach, who was the victim of the alleged offence was 84 years old at the time of the offence and there is uncontradicted medical evidence that he is not in good health and suffered at the time, and continues to suffer from, advancing Alzheimer’s disease.

What is sought to be adduced pursuant to s 65 is the statement Mr Lubach made to police which occurred clearly, it seems to me, shortly after the alleged offence and also a transcript and more significantly a video record of an identification process that occurred at the Winchester Police Centre in the Australian Capital Territory. It seems to me that the statement of 23 March 2005 is, under the authorities, properly admissible pursuant to s 65 of the Evidence Act.

The photo identification process Mr Sabharwal, for the accused, argues is not subject to s 65 because he says it was not made shortly after the asserted fact occurred. Section 65 does require that these matters are to be at my discretion and may be exercised in respect of representations that were made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that those representations are a fabrication.

While it is true that the photo board identification process did occur in May in relation to an offence that allegedly occurred in mid to late March, it seems that it can still be said to be shortly after the asserted fact occurred and certainly given the fact that the jury will have before it the full video tape of the identification process, I am satisfied that it is made in circumstances that make it unlikely that those representations are a fabrication. Whether or not Mr Lubach, at that stage, had sufficient memory is entirely a matter for the jury and the jury will be able to see the videotape and form its own view.

I am of the view that both the statement and the tape and associated transcript is…

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 Ivan Stephen Djerke

Details

AGLC: R v Ivan Stephen Djerke [2006] ACTSC 104
Case: [2006] ACTSC 104
Decision Date

CaseChat Overview and Summary

In the case of R v Ivan Stephen Djerke, the Supreme Court of the Australian Capital Territory was asked to determine the admissibility of certain evidence in a criminal trial involving aggravated burglary, threat to kill, and unlawful confinement. The primary issue before the court was whether the statement of the victim, Mr. Lubach, who suffered from Alzheimer's disease, and the video record of an identification process conducted at the Winchester Police Centre, were admissible under section 65 of the Evidence Act 1971.

The court needed to decide if the video record of the identification process was made shortly after the alleged offence, and if so, whether it was made under circumstances that made it unlikely to be a fabrication. The accused's counsel argued that the identification process did not occur shortly after the alleged offence, and that the jury might be emotionally inflamed by the video. However, the prosecution maintained that the video and transcript of the identification process were admissible, as they were made shortly after the event and under circumstances that made it unlikely to be a fabrication.

Justice Connolly ruled that the statement and all photographic identification evidence of Mr. Lubach were admissible pursuant to section 65 of the Evidence Act. The court found that although the identification process occurred a couple of months after the alleged offence, it still took place shortly after the event and could be considered under the circumstances that made it unlikely to be a fabrication. The court also noted that the jury would be able to see the full video tape and form its own view on the matter. The judge emphasised the importance of fairly considering the material and ensuring that the accused would have a fair trial, despite the disadvantages of not being able to cross-examine Mr. Lubach.

In conclusion, the court ordered that the statement of Mr. Lubach, the transcript of the taped record of conversation, and the photo board process, in its printed form, be admissible in the criminal trial. This decision allowed the prosecution to present crucial evidence that would contribute to the overall case against the accused.

Orders