R v Covic[2018] QDCPR 54

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defence for the court to exclude evidence of purported identification given by a witness, Eddie Zitka. It is argued that the evidence is inadmissible and further, in any event, in the exercise of the Court’s discretion it should be excluded. 

2. [2]
   Mr Zitka provided a statement dated the 15^th of October 2015.  Mr. Zitka said that he knew the defendant and had known him for some years.  Without going into the full detail, there seems to have been a falling out between he and the defendant.  On the 3^rd of 2015, at about 6.30 pm, Mr. Zitka went to the Croatian Club at Rocklea for dinner and drinks and stayed there until about 11.30 pm.  He went home to Newport and arrived home at about 12.30 am the following morning.  He went to sleep.  At about 1.05 am, he heard his son yell out, “Fire, fire, Daddy, fire.”  He jumped out and saw his Mercedes on fire outside, and he attended to the fire with a hose.

3. [3]
   Mr. Zitka had CCTV cameras attached to his property (four in total) one at the front showing the front yard and, importantly, another one covering the boat pontoon. A short time after the incident, his wife went through the footage. The footage shows a man wearing a hoodie and long pants walking down the boat ramp at about 12.30 am on the 4^th of October.  The footage shows the person remove his hood and walk back. The witness in his first statement said he could clearly see the face.  He immediately recognised the person as the defendant.  There was no doubt in his mind it was Mr Covic.

4. [4]
   In a very recent statement dated the 23^rd of August 2018, the complainant says he had met Mr Covic on 12 separate occasions approximately, over eight or nine years.  Those occasions involved a few social lunches and business dealings on building sites.  He knows his features.  He also says in the statement that he knew it was the defendant from looking at the footage because of his body shape, build and the way he walked.  He described the walking style as a waddle movement; a funny style of walking.  He also saw the face clearly on the footage and was 100 per cent sure it was the defendant.

5. [5]
   I have seen the footage. 

6. [6]
   Mr Vasta, in written submissions, relies on a number of cases and ultimately submits that the evidence is inadmissible and it should be excluded on the basis it is irrelevant. 

7. [7]
   The Crown, on the other hand, submits that the witness is in a better position than the jury to make the identification and it is admissible. 

8. [8]
   Mr Zitka also gave evidence on voir dire here today.  He said that he had met the defendant eight or nine years ago, he had met him 10 to 12 times, and spent sometimes 30 minutes and sometimes a few hours with him.  He recognised him from the video footage by the face, the body and the walk.  In cross-examination he agreed that only five seconds was displayed when he walked down the boat ramp, and he was asked (or it was put to him) that there was nothing unusual about his walk.  He said, “There might not be to you, but there is to me, knowing him.”  He said his sons knew him better than he did.

9. [9]
   In oral submissions, Mr Vasta submitted that there was no objective aspect to the witness’ evidence to support that which he has said.  There was no waddle observable in the footage.  Five seconds of walking was insufficient.  Alternatively, the evidence should be excluded in the exercise of the discretion. 

10. [10]
    Mr Bishop, in oral submissions, submitted the witness was in a better position than the jury to make the identification. 

11. [11]
    Now, a number of cases have been relied on.  In Smith v R (2001) 206 CLR 650, the High Court excluded evidence of police identifying persons on bank security cameras.  It was said, at paragraph 9, that:

Neither police officer suggested that they had any basis for concluding it was the appellant depicted in the bank photos other than the knowledge gained with respect to earlier encounters.

12. [12]
    Importantly, it was said they were not at any particular position of advantage in recognising the person in the photos, certainly no more than the jury.  At paragraph 13, it was said:

That is not to say that it will never be relevant for a witness to give evidence that the witness recognises who is depicted in a photograph.  The obvious case in which that will be relevant is where the witness deposes to having identified someone from a photograph, or collection of photographs, shown to the witness and the identity of the person depicted is proved in some other way.

13. [13]
    Further, it was noted, at paragraph 14:

In past decisions, it has been observed that such identification evidence may be relevant if the jury require further assistance on the interpretation of photographs; if the appearance of the accused has changed and the witness can testify to the specific appearance at the time of the offence; or if the witness has an advantage over the jury based on sufficient familiarity with the accused or other expertise.

14. [14]
    The High Court, in that regard, refers to a number of cases.  The first is R v Palmer (1981) 1 NSWLR 209.  In that case, a person identified the defendant from enlarged photographs taken by bank cameras.  The identifier knew the accused and recognised him.  In that case, the evidence was held to be admissible. 

15. [15]
    In R v Goodall [1981] VR 33, a security camera photographed two men and these were reproduced in a daily newspaper.  Out of court identifications were made by two police officers who recognised the person. It was held the judge had not erred in ruling it was open to the jury to find that one of the witnesses was sufficiently qualified, from his prior knowledge, to express opinions that the man in the photo was identical to the person he knew.

16. [16]
    There is also the South Australian case of R v Smith (1983) 33 SASR 558, where Mr and Mrs Norman had seen republished photos from security cameras in the news.  They had contacted the police. Mrs Norman had known the appellant since being 14 and 16 and had seen him frequently.  It was held the evidence was admissible in that case. 

17. [17]
    In my opinion, the witness here does have a special advantage over the jury.  He has known the defendant for some years.  He has met him 10 to 12 times.  He has dealt with him for up to a few hours.  He identifies him from the face, body and walk.  In my opinion, the video footage sufficiently allows one to see the man’s face, and I take into account, of course, his answer to Mr Vasta about the walk, which shows that he does have a special advantage over others. 

18. [18]
    In my opinion, the evidence is admissible and relevant. Indeed it may be regarded as recognition evidence which is part of the circumstantial case against the defendant. 

19. [19]
    There were other cases relied on, in particular Griffith, Urbano and Nguyen.  I consider this case more approaches that of facts in Nguyen v R (2007) 180 A Crim R 267. In that case the police provided opinion evidence based substantially on their specialised knowledge, having seen the individuals for many times in videos. 

20. [20]
    I consider R v Urbano [2011] QCA 96 to be distinguishable for the reasons put forward by the Crown. That witness did not have any specialised knowledge, and I refer particularly to paragraph 64.

21. [21]
    In R v Griffith (1995) 79 A Crim R 124, there was distortion of the facial features by a stocking and the police officers there had no particular advantage over the jury. 

22. [22]
    In conclusion, because of the knowledge of this witness of the defendant, his dealings with him, and taking into account the evidence today, I rule the evidence is admissible and relevant. There are no grounds to exclude it in the exercise of the discretion.