R v Hassan [2004] VSC 84

5. 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.

8. 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.

11. 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 morning. Constables McMahon, Cook and Coad would also give evidence that the person depicted in the video was walking and exhibited mannerisms similar to the accused when they observed him outside the church that morning. The accused's brother would also give evidence that the clothing worn by the person depicted in the video was of a similar kind to that which the accused was wearing on the morning in question. Constable Coad would depose that she was confident that the person in the video was the same person she had spoken to earlier at the Church, that person being the accused.

14. Mr Lyon submitted that any evidence by the police officers that the person they observed on the video was the accused was irrelevant and inadmissible. He relied upon the decision in Smith v R[1]. In that case two police officers who had previously dealt with the appellant prior to his trial were permitted to give evidence that one of the robbers depicted in a bank security camera photograph was the appellant. The police officers relied upon their knowledge of the appellant's physical appearance from their previous dealings with the appellant in concluding that it was the appellant who was depicted in the bank photographs. There was no suggestion that the physical appearance of the appellant had changed materially between the time when the bank photographs were taken and the trial or that the police by reason of their previous encounters with the appellant were at some advantage in recognising the appellant as being the person in the photographs. It had been conceded in the course of the appeal that by the time the evidence at the trial had concluded the jurors had probably spent more time in the presence of the appellant than had the police witnesses before they gave their evidence. Gleeson CJ, Gaudron, Gummow and Hayne JJ in a joint judgment found that the police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors. As the police officers had reached a conclusion about the identity of the accused and the person in the bank photograph based upon the same material which was available to the jury from its own observations the police officers' opinions did not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact. Such evidence was held to be irrelevant, it not being rationally probative, its effect being to invite the jury to substitute the opinion of the police for their own conclusion.

17. During the course of argument the learned prosecutor, Mr Kayser, announced that any evidence of the police witnesses that involved an assertion that the person depicted in the contentious video footage was the accused would not be led by the Crown in accordance with the reasoning in Smith's case. Only Constable Coad had made such a positive identification. This concession by the Crown was unduly favourable to the accused.

20. The present application raises issues different from those in Smith's case. The accused's appearance differs significantly from his appearance at the time of the alleged offence. He was then slim and had a shaved head. The accused now has a thick and long crop of hair and appears to be considerably overweight. Smith's case is not apposite to the present circumstances as the accused's appearance has changed markedly. The assertion of identity by Constable Coad is founded upon a comparison of the accused's appearance at the time with the person in the video. That said, the learned prosecutor has indicated that it is not his intention to lead such evidence.

23. The learned prosecutor explained in the course of submissions that the evidence of similarity in appearance and apparel was not relied upon by the prosecution as evidence of identification but was circumstantial evidence which, if accepted, could in conjunction with other evidence, lead the jury to conclude that the accused had returned to the church at approximately 4.30 a.m. in the morning. During the course of submissions, counsel for the accused, quite properly in my view, conceded that evidence of such a character could, in principle, be used by the Crown in the manner for which it was contended. It was at one stage of the submissions faintly suggested that the admission of such evidence would be contrary to the reasoning in Smith's case, but for the reasons I have already given, Smith's case has no application in the present circumstances. The evidence of the police witnesses and the accused's brother concerning the similarity in appearance or the apparel worn by the person in the video and the accused depends upon the observations made by each of the witnesses of the accused's appearance and clothing on the morning of 14 June 2002.

26. Evidence of the accused's similarity in appearance to the offender is relevant and admissible evidence.[2] Such evidence does not constitute positive identification and could not alone support a conviction. Evidence of similarity between an item of apparel worn by the offender and the accused or a similarity between an inanimate object in the possession of the accused and the offender is relevant and admissible evidence.[3] In general the principles which apply to evidence of identification of human beings also applies to the evidence of identification of inanimate objects.

29. Positive identification evidence may come in one of two forms. A witness may identify the accused as the person observed committing the crime. Alternatively, a witness may identify the accused in circumstances where the inference to be drawn from such identification is that it is the accused who committed the crime. Each involves positive identification though one is direct evidence of the commission of the crime, whilst the other is circumstantial.[4]

32. Evidence of some similarity in the appearance of or the apparel worn by the accused and the person who committed the crime, sometimes described as circumstantial identification evidence, is not evidence of identification.[5] As McHugh J observed in Festa's case:

"........It differs from positive identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime........"[6]

36. The circumstantial evidence with which I am concerned falls into this category. The evidence of similarity is not one of comparison between the accused and the person who committed the crime, but between the accused and the person depicted in the video who was walking near the scene of the crime at a point of time close to when the crime was committed. It is evidence of consistency of appearance between the accused as he was at approximately 2.00 a.m. on 14 June 2002 with the person who appears in the video taken at approximately 4.30 a.m. on the same date.

39. Often where a number of witnesses give evidence that an accused person is similar in appearance to an offender, no more will be established by the combined effect of such evidence than that the accused is similar in appearance to the offender. A jury may more readily draw such a conclusion if a number of witnesses testify to the same effect. But all that is established by the weight of such evidence is that the accused resembles the offender.[7] The evidence of each of these witnesses, whether considered in isolation or taking into account their cumulative effect does not establish that the accused committed the offence. Such evidence may be material when considered in conjunction with other evidence as tending to establish that the accused was in the vicinity of the crime at the time it was committed. It is, as the learned prosecutor submitted, circumstantial evidence which may bear upon whether the accused was present and had the opportunity to commit the crime.

42. The witnesses upon which the prosecution relies mention a number of different points of similarity. The differences are not contradictory and their combined effect may be more probative than the evidence of one alone.[8]

45. The witnesses also assert that the mannerisms of the person in the video were similar to those of the accused outside the church. Whether or not a particular witness should be permitted to give evidence of a similarity in walk or other mannerism will ultimately depend upon whether the witness is relying upon something sufficiently distinctive to justify the claim that such action is similar.

48. The similarities in build and the similarity in apparel described by the witness do not require further detail and are, on their face, relevant and admissible unless, as counsel for the accused contended, I should exclude them in the exercise of my discretion. Mr Lyon submitted that the witnesses statements did not suggest that there was any particular distinguishing feature of the T-shirt that should lead to the jury attaching any weight to the witnesses' claim that they were similar. Although counsel for the accused did not say so in terms I have treated that submission as extending also to the similarities of appearance described by the witnesses.

51. The requirement of an appropriate direction concerning the dangers of convicting on identification evidence referred to in Domican v R[9] and the obligation of a trial judge to give directions concerning the factors which may affect the reliability of identification evidence arises in part because of the risk that a jury will attach greater weight to such evidence than it deserves or will not, without judicial guidance, be sufficiently alert as to the dangers associated with such evidence. In some cases a trial judge will be justified in excluding positive evidence of identification where the evidence is tenuous and the risk of prejudice remains high despite any directions which the trial judge may give. The present application does not give rise to such considerations. Circumstantial evidence (which does not involve a positive identification of the accused) is no more presumptively prejudicial than any other forms of circumstantial evidence.[10] The occasions for the exclusion of such evidence under the unfairness rule are less likely to arise than in circumstances where there is a positive identification. Based on the state of the circumstantial evidence as it is presently known, I am unable to detect a prejudicial effect which would require its exclusion. Its weight which may be significant or weak is not a basis for exclusion, though a direction will be required as to how such evidence may be used.

54. The defence may renew its application after it has been provided with further particulars of the similarity in mannerism or walking of the accused and the person depicted in the video.

[1] [2001] HCA 50; (2001) 206 CLR 650 at 655.

[2] Pitkin v R (1995) 130 ALR 33 and Clune v R (No. 2) [1996] VicRp 1; [1996] 1 VR 1 at 4 per Callaway JA.

[3] R v Marijancevic (1993) 70 A Crim Reports 272 at 278; R v Crupi (1995) 86 A Crim Reports 229; R v Clout (1995) 41 NSWLR 312 at 321; R v Theos (1996) 89 A Crim R 486 and Heydon, J.D. (2000) Cross on Evidence (6th_Australian Edition_), Butterworths, Sydney at paragraph 1440.

[4] Festa v R [2001] HCA 72; (2001) 208 CLR 593 per McHugh J at paragraph 54 and R v Coxon [2002] SASC 165; (2002) 82 SASR 412 at 420 per Lander J.

[5] Murphy v R [1994] SASC 4674; (1994) 62 SASR 121 and R v Clune (No. 2) supra. See also R v Rich [2002] VSCA 17.

[6] Festa v R supra per McHugh J. at paragraph 56.

[7] R v Clune (No. 2) supra per Callaway JA at 5.

[8] R v Clune (No. 2) supra per Callaway JA at 4.

[9] [1992] HCA 13; (1992) 173 CLR 555.

[10] Festa v R supra at paragraph 64 per McHugh J.