R v Secombe; R v Butkovic [2010] VSCA 58

R v Secombe; R v Butkovic [2010] VSCA 58 - VSCA 2010 case summary — Zoe

[84]

You should not assume that just because two different witnesses identify the same accused that it is necessarily reliable because a number of witnesses can be mistaken for the same reasons. So look carefully at the circumstances existing that surround that identification.

There is a big difference of course in those circumstances when you look at the identification evidence relating to both Secombe and Butkovic. The victims knew Secombe, they had seen him many times before, and that is a very compelling circumstance in determining whether that identification might be correct. They did not know Butkovic before that night. So there is one circumstance that is different between the two. So look independently at the circumstances existing.

Now look at some of the specific factors that you might think about and consider when you consider the identification evidence in this case. You have got to consider the circumstances in which the offender was observed, the characteristics of the witness who gave evidence, how well the witness knew the accused and the circumstances surrounding the identification of Butkovic with the use of a photo board.

You have got to examine each of these factors closely along with any other relevant factors in deciding whether to accept identification evidence. Now, look at some of these, and these are not exclusive but they might give you some idea of the ways in which you might go about this task. You might consider how long did the witness in each case have to identify the two people that they identified.

We have had various evidence about how long the incident took. It will be a matter for you but if it took ten minutes, five minutes, something of that order, then they would have had time to make their observation. It is obvious it would be important if a person only had a glimpse of another person or as to whether they were present in the same room for hours. That would be a relevant circumstance in determining whether you would accept the evidence of the identification. How far apart were they? Well, we haven't got too many accurate statements of that. We have got the photographs which would help us if they were all within the same room and so the evidence on that might be looked at by you. The angle of observation, did the witness see the person's face or only their back? Well, not a lot of evidence directly on it but no, I am not going to comment on what I think of the facts but you will consider what you make of the evidence and consider that.

What was the light like? A bit of cross-examination on that. There is some evidence on that. It was certainly night time, it was not bright but well, you heard the evidence and you will consider that. Did anything get in the way of the witness's view such as passing people or traffic? Well, I do not think that is particularly relevant to this case but it is a matter for you.

Secondly, you have got to consider the witness who gave the identification evidence and you have got to ask yourselves some questions about that. Obviously that is Harvey and Ms Benson. You have got to assess the quality of that witness as an observer, how accurate they would be. Well, they had had a few drinks. You have got some evidence on that, including apparently, I have not seen this document yet, but I do not have to see it, you do; it has got a blood alcohol reading on it apparently, and you will look at that and you will consider the evidence. I do not know how strong cans of Vodka and orange juice are, or how big the cans are, but you have heard the evidence - and I do not propose finding out either, but you can pay regard to the evidence about that where the witness is stressed or fearful at the time of the observation - well, were they? They had the calming effects of what they had been consuming, but you will consider whether it was a frightening incident.

But, of course, you will also consider, some people under powers of stress and moments of extreme threat sometimes people's powers of observation improve and they see a snapshot of what occurred, it sits in their mind like a photograph forever. Other people black out and have no idea of what happened, so you have got to look at the demeanour of the witnesses, which you can use them as an assessment of how good their evidence is, and make your own conclusions as to this sort of issue. Whether any other factors that might have affected it and so forth, your alcohol is there, there is fatigue or whatever else. If you think that would have affected them, take it into account.

[85]

You have got to consider how well the witness knew the accused. There is obviously a difference there, but it is a matter for me, it does not appear to be contentious that it seems both witnesses knew Secombe well, they had seen him well, they knew them in a social context. Each know him in a social context, that is Secombe, but that did not exist with Butkovic. That was a fresh observation, but nonetheless, that does not mean you should reject it, but just be careful about whether or not you accept it.

That is in the case of Butkovic. You have got to consider the way in which the accused was identified. See, did the accused give a description of the offender before identifying the accused? Well, I think it was Harvey, was it not, who gave the evidence that he was big and tall, solid build, and short hair at the sides and back. Michelle Scott, I apologise. There you go that is why judges do not get to deal with the facts, that is why we leave it to you, and you have got 12 minds to correct each other if you are wrong, but nonetheless, it was a description and the veracity of that will be taken into account.

You would look at whether or not there was a particularly memorable feature or characteristic of the accused in identifying him. I mean, the obvious example is something extreme like he was a hunchback. Well, none of that exists here, although look carefully at the photo board, if there is something about - that is characteristic of Butkovic, as against the others, then take that very much into account, but whether there is such a factor is entirely a matter for you. How long was there between the incident and the identification? Was it likely that the witness' memory was affected by any delay where you have got the evidence, they were all pretty quickly after the event, but whether that was an excessive delay or not is a matter for you. Was the identification process conducted fairly? Well, this one was a photo board. I think the fairness of it probably, and you have been told by counsel to look at the photo board and see if you think it was fair.

[131]

[22] Mr Butkovic has had previous contact with psychiatric services, and has attracted diagnoses of antisocial personality disorder, paranoid schizophrenia and polysubstance abuse. He is maintained on a Community Treatment order under the Mental Health Act 1986, and is prescribed depot antipsychotic medication.

[23] The diagnosis of polysubstance abuse is clear: he describes past opiate dependence and alcohol abuse, ongoing cannabis abuse; he reported limited amphetamine abuse although the materials suggest that this has been more significant.

...

[25] He has documented evidence of past psychotic symptoms. It is not clear whether these relate to substance abuse or methadone withdrawal, or to an underlying psychotic illness. A diagnosis of schizophrenia would be confirmed by the recurrence of hallucinations or delusions in the documented absence of substance use (verified by urine drug screens) for some months. However it is not clear that his previous psychotic episodes relate to paranoid schizophrenia rather than a vulnerability to the psychosis induced by substance use. On the materials available to me - which only refer to the last few years - he has been stable over the last 18 months and his only psychiatric contact has been related to provision of depot medication, and recall to hospital on one occasion when he was not compliant with treatment. Nevertheless, given his ongoing cannabis use, it would seem wise to continue Mr Butkovic on antipsychotic medication.

[26] Mr Butkovic has a clear understanding of legal process, and his current mental state is stable: having regard to the criteria at s6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, I believe that he is fit to be tried, currently capable of meaningful participation in a trial, and able to interact sensibly with his legal representatives.

[27] Mr Butkovic denies participation in the aggravated burglaries. There is no evidence before me that suggests that, if the facts are as alleged, he was at the time mentally impaired. In considering the criteria at s20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, there is no occurrent (sic) information which suggests that Mr Butkovic was psychiatrically unwell at the time; or that (if the facts are as alleged) Mr Butkovic as the alleged assailant was affected by delusions or hallucinations which might have impeded his awareness of the nature or quality of the conduct or its wrongfulness.

At a glance

Court

Decision date

Before

Source

Judgment (179 paragraphs)

R v Secombe; R v Butkovic [2010] VSCA 58 (25 March 2010)

Legislation Cited (2)

Cases Cited (7)