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 therefore admissible pursuant to s 65 in relation to discretionary factors. While clearly there is a disadvantage to the accused that he cannot cross-examine Mr Lubach, that is always the case in s 65. That would not alter my discretion.
Mr Sabharwal does make the point that a jury may be emotionally inflamed by seeing this material. It seems to me that there is a contrary argument that if you have an elderly and infirmed victim of a violent crime, there is a clear public interest in those matters being brought to court. The argument that because the victim suffers from Alzheimer’s disease, one ought to exercise a discretion to exclude the material, it seems to me, would result in a harsh ruling which protects a potential offender and negates the interests, both of the community and of a potential victim. It seems to me that, properly instructed, we can guarantee that the jury will fairly consider this material and that the accused will have a fair trial, but he will have a fair trial on this material.
In making those decisions and exercising the discretion I am also mindful of the fact that this is not the only material in the Crown case. The Crown case consists of a number of witnesses who will put the accused at the scene of the crime and significantly now, although, not available in final form until relatively recently, DNA material from cigarette butts, which again puts the accused at the scene of the alleged offence.
I would therefore make the orders sought in the application of the 23 June 2006, which is that the statement of Mr Lubach of the 23 March 2005, the transcript of the taped record of conversation and the photo board process, in its printed form (the Crown does not seek the actual tape) be admissible. But obviously the tape and the photographs will all be admissible.
I certify that the preceding 8 (eight) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 10 October 2006
Counsel for the Applicant: Mr D Morters (on 3.7.06) and
Mr J Lawton (on 10.10.06)
Solicitor for the Applicant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr J Sabharwal
Solicitor for the Respondent: Legal Aid Office (ACT)
Dates of hearing: 3 July 2006 and 10 October 2006
Date of judgment: 10 October 2006
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