The discovery of the photofit came as a shock, not least because it looked nothing like the man sitting in the dock, accused of the crime.
The digitally reconstructed image of the offender, based on the victim’s memory of a violent armed robbery at her home in Melbourne’s east, had been discovered midway through the trial by a junior law clerk.
It would ultimately change the course of the case, prompting a jury to be dismissed, a judge to refer a detective to the state’s top lawyer for what he believed at the time to be an “egregious and blatant act of misconduct”, and an examination by internal police investigators and the corruption watchdog.
It is now also central to a civil claim being brought by Milad Khaia, one of three men charged over the 2015 aggravated burglary, who bears little resemblance to the photofit.
At the heart of the claim is the fact that this photofit was never provided to lawyers from either side, despite Victoria Police’s obligation to disclose all evidence gathered during an investigation, regardless of whether it helps or hinders the prosecution case.
“It’s not right and it’s not fair,” says Khaia, who was found not guilty of the armed robbery in a later trial.
In the early hours of March 19, 2015, the home of the Sawan family in Malvern East was broken into by three men. Two were armed, one with a rifle and the other with a machete.
Two were also wearing balaclavas, and as a scuffle broke out between the intruders and residents, a woman ripped the headwear off two of them, getting a good look at one face. The burglars fled and police were called.
In June 2015, Khaia was arrested at the home he shared with his girlfriend in Pascoe Vale and charged over the violent incident, with police alleging he was the man whose balaclava had been ripped off during the crime.
A balaclava left at the crime scene had the DNA of three contributors, one of which matched Khaia. Police also alleged that there had been calls between a phone belonging to Khaia’s then-girlfriend had his co-accused eight minutes after the robbery. However, DNA taken from the fingers of the woman who pulled off the balaclava excluded Khaia as a contributor.
With Khaia on a community corrections order at the time, and a number of other serious offences on his record, he was refused bail. He spent more than a year in prison before the case went to trial. Due to issues with the prosecution case, the jury in the first trial was discharged and a second began in October 2016.
A clerk assisting one of the lawyers discovered one line in a note at the very back of a large folder of material, which revealed that a photofit process had been undertaken in the days after the robbery.
It was the first time the lawyers from either side had heard of it. It had not been disclosed in the brief of evidence compiled by police.
For Khaia, the discovery stunned him, particularly given how little he resembled the generated image. “When they found there was a photofit … that’s when everything changed. It was purely an accident they stumbled across it.”
“I was thinking, ‘How is this fair?’”
Detective Senior Constable Julie Doyle, a police officer with eight years’ experience who had taken charge of the aggravated burglary investigation, was called to give evidence before the judge. She admitted the photofit evidence hadn’t been disclosed but claimed she didn’t know she had to disclose it.
“Do you reckon if the photofit down the track had … matched perfectly one of the men in the dock, you would’ve supplied it?” she was asked by Khaia’s lawyer.
“Yes,” she replied.
“Did you take the view that because it doesn’t help the prosecution, you don’t have to supply it?” questioned Judge Roy Punshon.
“Yes, I did,” she replied.
The judge said: “You realise you’ve got a duty to disclose material that helps the defence?”
“Yes,” she said.
“In other words, exculpates people?” he asked.
“Yes, your honour.”
The jury at the second trial was discharged – an early question from the jury had raised concerns the jurors had prejudged the accused – and a third trial commenced in November 2016. However, the new judge, William Stuart, discharged the jury again after he was satisfied Victoria Police had withheld exculpatory evidence.
He described Doyle’s evidence as “some of the most amazing” he had ever read.
He also raised concerns about evidence given by the victim during the committal, months earlier. When the victim was asked whether her two statements were the only contribution she had made to the police investigation, she had looked at police informant Doyle.
“What causes you to look at her?” the lawyer asked.
“I’m just trying to think if there was anything else that I – I don’t want to say the wrong thing, that’s all. So far as I know, yes, that’s it.”
Judge Stuart believed this was a disingenuous answer from the witness and that Victoria Police had colluded with her to withhold exculpatory evidence. This was denied by both the victim and Doyle.
In a rare and extraordinary move, he referred the matter to the Director of Public Prosecutions, who then asked Victoria Police to conduct an internal investigation into Doyle.
“I have not in more than 38 years of involvement in the court as both barrister, and in the last almost five years as a judge of this court, come across anything like such a blatant and egregious act of misconduct by a police officer,” said Stuart.
“This is a matter of the utmost gravity, going straight to the proper administration of justice.”
Internal police investigators concluded that Doyle’s failings were not deliberate and that she hadn’t known that there was an obligation to disclose the material.
A similar conclusion was reached by IBAC in 2019 during its examination of misconduct involving officers investigating the murders of Sergeant Gary Silk and Senior Constable Rodney Miller.
The probe looked more broadly at Victoria Police’s witness statement-taking practices and compliance with the obligation to disclose evidence, and examined what had happened in Khaia’s case. Doyle told the commission she thought at the time she only had to provide material that helped the prosecution case.
The final IBAC report said the incident was an example of police failing to appreciate their obligation to disclose relevant material, and was unlikely to be an isolated case.
‘System falls down’
In a fourth trial, which ended in March 2017, Khaia and his co-accused, Richard De Luca, were acquitted by a jury. The third alleged offender, Dimi Sovolos, who fired seven shots during the incident, was convicted of aggravated burglary, reckless conduct endangering life, and intentionally causing injury.
He appealed his sentence, but it was rejected, with a judge commenting that the circumstantial case against him – which included DNA evidence on a clown mask and a backpack left at the residence, and a link between him and a cartridge case at the scene – was “compelling”, while there was evidence that “tended to exculpate” the other two co-accused.
Khaia has launched a civil claim against the State of Victoria, arguing it is liable for Victoria Police’s malicious prosecution of him.
A writ filed in the Supreme Court of Victoria in early March alleges police engaged in conduct that constitutes misfeasance in public office, that the state breached its duty of care by failing to properly supervise, control or train police officers, and that his human rights were breached.
Khaia’s lawyer, Jeremy King, says he will argue police deliberately suppressed exculpatory evidence because it hurt the prosecution’s case. The argument put forward by Doyle, that she didn’t know she had to disclose the evidence, will be challenged in the civil claim.
“To me, that beggars belief,” King said. “She is a senior police officer and she also has a supervising officer as well. To run the argument that you didn’t know you had to disclose such critical evidence as a photofit, I have to say, I don’t buy it.”
“Luck plays a very strong part in this case, but the point is it shouldn’t.”
Lawyer Jeremy King
Crucially, King says that Khaia was denied bail after he was charged at a time when the court didn’t have the photofit evidence, potentially spending more time in custody than he should have.
“I reckon that’s one of the most egregious bits of conduct.”
If not for a law clerk stumbling across the photofit, King says, Khaia could have been convicted.
“Luck plays a very strong part in this case, but the point is it shouldn’t. It shouldn’t require a law clerk to pick up a little thing. It should be proper and full disclosure on the part of the police.
“Lawyers in particular are so reliant on the police to comply with their disclosure obligations, the whole system falls down when they don’t do that.”
A spokeswoman for Victoria Police said it had not received a writ regarding the matter and was therefore unable to comment.
However, she noted that the force’s Professional Standards Command had exonerated Doyle of duty failure.
She said that since 2015, training had significantly increased, with a new police manual introduced to guide employees about disclosure in criminal proceedings.
For Khaia, the civil case brings an opportunity to find out more about what happened during his case. He is still finding his feet after he spent almost two years in prison.
“It was the worst time of my life to be honest,” he says. “It was an experience I would never wish upon anyone. That’s time I’m never going to get back.”
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