R v Serrano (Ruling No 2)

[2007] VSC 206

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2006

THE QUEEN

v

APOLONIO SERRANO

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 May 2007
DATE OF RULING:	23 May 2007
CASE MAY BE CITED AS:	R v Serrano (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 206

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CRIMINAL LAW – Evidence – Admissibility of the evidence of witness as to recognition of burnt remains of garments of the deceased shown to her by Police – Whether identification process flawed – Recognition evidence unfairly obtained – Although process of identification imperfect probative force outweighs prejudicial effect.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions
For the Accused	Mr M. Rochford with Mr D. Hallowes	Victoria Legal Aid

HIS HONOUR:

1. Mr Rochford, who appears with Mr Hallowes, has objected to the evidence of the witness Zagorka Svraka as to her recognition of a dress and a windcheater of Ms Trailovic in two photographs shown to her by Inspector Waddell on 18 November 2005.

1. The relevant background can be briefly summarised:

1. In about April 2004 a tracking device was fitted to the accused man's vehicle.  On 12 April 2004 that device indicated that the accused's vehicle at about 11:30 p.m. on the evening of that day stopped at a location on the Princes Highway a short distance outside Newborough near or in the vicinity of some bushland.  A search was conducted of that location on 22 April 2004 and a quantity of women's clothing and other items were found there.  That clothing and those items were photographed and the photographs are contained in booklet C. 

1. On 18 November 2005 Inspector Waddell from the Missing Persons Unit of the Homicide Squad visited the home of Ms Svraka.  She was an old and close friend of Ms Trailovic, who the accused is charged with murdering.  Inspector Waddell showed Ms Svraka the booklet of photographs.  She recognised the remains of the burnt garment depicted in photograph 14 as having the same pattern and colour as a dress purchased by Ms Trailovic approximately two and a half years before she disappeared.  Ms Svraka stated that she had seen Ms Trailovic wearing that dress. 

1. In photograph 13 Ms Svraka recognised the windcheater which is depicted there as a top which Ms Trailovic wore when she was in the garden or when she was out walking.  

1. Mr Rochford has submitted that I should exclude that evidence in the exercise of my discretion.  He has submitted that the process by which Ms Svraka recognised the garments in the photographs was flawed.  He submitted that it was calculated to lead Ms Svraka to recognise the garments as those of Ms Trailovic, and thus might have induced an erroneous recognition by Ms Svraka of those garments.  Accordingly, he submitted that the evidence had been unfairly obtained and should be excluded in the exercise of my discretion. 

1. In support of that submission Mr Rochford relied essentially on five circumstances: 

1. First, Inspector Waddell was from the Missing Persons Unit of the Homicide Squad and thus Ms Svraka would have realised quite readily that the photographs which were shown to her by the Inspector related to Ms Trailovic. 

1. Secondly, Inspector Waddell showed the photographs to Ms Svraka in a police forensic service department booklet.  That would have reinforced the suggestion that the items depicted in the photographs were connected with Ms Trailovic. 

1. Thirdly, Ms Svraka was only shown a single photograph of the dress and a single photograph of the windcheater.  She was not shown photographs of other dresses or windcheaters as one might expect in an analogous situation where the police are seeking identification evidence concerning a suspect by using an identification parade or a photoboard. 

1. Fourthly, Ms Svraka was only shown photographs and was not shown the actual items that were found on 22 April 2004. 

1. Fifthly, according to the statement of Inspector Waddell, when Ms Svraka was shown photograph 14 she appeared to be shocked and asked the Inspector what was depicted in the photograph, to which Inspector Waddell stated:  "I believe it is a dress, do you recognise it?"  To which Ms Svraka said:  "Yes." 

1. In my view each of the matters to which Mr Rochford has referred are valid issues which are relevant to an evaluation of the potential weight and reliability of the evidence of the recognition by Ms Svraka of the garments in the photographs as the same clothing she had seen worn by Ms Trailovic.  However, I do not consider that of necessity those circumstances render the evidence of so little probative force that I ought not to admit it in the exercise of my discretion. 

1. Ultimately if I were to admit the evidence it would be essentially a question of fact for the jury to determine what weight, if any, it should give to the evidence.  Indeed, Mr Rochford did not contend that I should exclude the evidence on the basis that it was of no or little probative value.  Rather, as I have stated, his basic submission was that the evidence had been obtained in a manner which was so inherently unfair to the accused that I should not admit it.  In effect his submission was that the method used to obtain the evidence was calculated, even if not intended, to have the effect that Ms Svraka would recognise the clothing in the photographs as the same as those she had seen worn by Ms Trailovic. 

1. It is right to observe that the process by which Ms Svraka purported to recognise the garments in the photographs was less than ideal.  However, I do not consider that singly or collectively the matters raised by Mr Rochford have so infected that process as to make it unfair to the accused to admit the evidence in the trial. 

1. While, as I have stated, the process was imperfect, its shortcomings were not such as to necessarily have the effect that Ms Svraka did recognise the garments, whether or not that was a true recognition of them by her.  Whether the process had that effect, or the extent to which that process affected the accuracy and reliability of Ms Svraka's recognition of the garments is, in my view, fundamentally a question of fact.  However, I am unable to conclude that the process was so weighted or loaded that it would be unfair against the accused for the evidence to be admitted. 

1. The issues raised by Mr Rochford are not complex and can be easily understood and appreciated by a jury.  Furthermore, in admitting the evidence I consider that the authorities make it both desirable and indeed necessary that I give a direction in my charge to the jury as to the risks involved in that type of evidence.  Both the Court of Appeal of Victoria and the Court of Appeal of New South Wales have indicated that a trial judge should give directions to the jury as to the general and specific shortcomings and risks involved where a witness from memory purports to recognise or identify an inanimate object as one which is relevant to an issue in the case.  See R v Theos[1];  R v Kotzmann[2] and R v Clout[3]. 

   [1](1996) 89 A Crim R 486 at 494‑5 (Tadgell JA).

   [2](1999) 2 VR 123 at 144‑5 (Batt JA).

   [3](1995) 41 NSWLR 312 at 322 (Kirby ACJ).

1. In my view such a direction, given with the authority of my office, would sufficiently serve to underline to the jury the need to scrutinise the evidence with caution, bearing in mind in particular matters of the kind to which Mr Rochford has referred.  I am confident that the jury would understand and adhere to such a direction.  Indeed, that type of direction is commonly given to juries in a variety of cases involving issues of identification and recognition. 

1. For those reasons I do not accept the submission that I should reject the evidence of Ms Svraka and Mr Waddell as to the recognition by Ms Svraka of the garments in photographs 13 and 14 of booklet C. 

1. Accordingly, I hold that that evidence is admissible.