DPP v D J C [2012] VSCA 132

2 On 30 May 2012, the trial judge certified under s 295(3)(a) of the Criminal Procedure Act 2009 that the judge's ruling that the evidence was inadmissible 'would eliminate or substantially weaken the prosecution case'. Before us, the respondent conceded that this was the case.

3 The respondent was indicted on three counts of intentionally causing serious injury, three counts of recklessly causing serious injury, and one count of affray. The charges against him arose out of a violent attack on a group of students at the Matthew Flinders Hotel, by four men, which occurred on 24 April 2009. P, a plastering apprentice at Holmesglen TAFE, arrived at the hotel with three other men, one of whom was carrying a meat cleaver. P's group assaulted another group of students who were having lunch at the hotel. Several people were injured by the man wielding the meat cleaver. Police and ambulance arrived a short time later.

4 P and another member of his group were identified by police at an early stage. However, initially police were unable to ascertain the identity of the other two men in P's group, including the man with the meat cleaver.

5 On 18 April 2009, DJC was arrested for unrelated offences, which he was said to have committed during an affray on 17 January 2009, in which he used a bladed weapon. P was possibly a co-offender in relation to those offences. When DJC was arrested for the earlier offences, the police took a photograph of DJC, in which he was wearing a grey 'hoodie'. The offences to which this appeal relates were committed six days later.

6 In May 2009, DJC became a 'person of interest' when the police informant in this matter learned of his offending in January 2009. On 27 June 2009 (that is, about two months after the offences occurred), C, who was an eye witness to the affray at the Matthew Flinders Hotel, was interviewed by police. C described the man with the meat cleaver as follows:

The male with the meat cleaver was around 20 years old, approximately five feet eight inches tall, European descent ― he looked a little bit woggy to me, a biggish nose with dark coloured closely shaved hair. He was wearing a grey hoodie and tracksuit pants.

7 On 7 October 2009, about five and a half months after the affray, C was shown a photo board containing 12 photographs, which included DJC's photograph, taken by police in April. C pointed to DJC's photograph and said 'that one. I remember the shape of his nose'.

8 The police informant's evidence during the voir dire was that, at that stage, she had come to a 'dead end' and took a 'gamble' in showing DJC's photo to C. She conceded that the photo board procedure was used as part of her investigations, and not with the intention of collecting evidence for subsequent proceedings.

9 On 12 October 2009, DJC was arrested, made a 'no comment' record of interview and was then released. At that stage, he refused an invitation to take part in an identification parade.

10 On 23 December 2009, DJC was charged. No identification parade was arranged to give C or any other witness the opportunity to attend an identification parade including DJC, after he had been charged.

11 In July 2011, DJC stood trial for the current offences ('first trial'). At the first trial, the only evidence identifying DJC as the man with the meat cleaver was C's photo board identification of him. No evidence was led that he had associated with P or the other identified assailant. Nor was there any evidence of relevant clothing or weapons being found in DJC's possession.

12 DJC's defence at trial was that he was not present during the affray, and that he had been mistakenly identified. The central issue in the first trial was, accordingly, one of identification.

13 During the first trial, DJC unsuccessfully applied to exclude C's identification evidence, on the sole ground that the process was unfair because he was the only person on the photo board depicted wearing a grey hoodie. The judge ruled that the photo board identification evidence was admissible, stating that:

In my view, the fact that the offender was wearing a grey hoodie was only one of a number of features to which the witness made reference in his statement when he purported to describe that person. He also made specific reference to features of that person's face both directly, such as the size of his nose, and indirectly, such as by reference to his age and ethnicity. It is very significant, in my view, that when he made the identification that he did, [C] made specific reference to the nose of the person shown in photograph number 6 and, as he confirmed at the committal, it was a feature of the person that he knew and recognised from his earlier observations of the armed offender at the hotel.

It is equally significant that when he identified the accused man's photograph in the photo board, he made no reference to what the person in that photograph was wearing. As a matter of logic and common sense, had the witness noticed the top and found it of significance, he would have referred to it when he made the selection that he did.

On my assessment of the photo board, the male persons selected by the compiler of that photo board do, in respect of their apparent ages and facial features including their short, dark hair, bear a sufficiently similar appearance to each other and to the description given by the witness in his statement, to have made it a fair identification process.

Accordingly, in my view, the evidence to be given by [C] is relevant as it relates directly to the identity of the armed assailant which is a central issue in the trial in respect of all of the charges which [DJC] faces.

14 Following C's evidence, the judge directed the jury as follows:

You are not to attach any significance to the fact that the police had that photograph. Police have photographs of many different people for a variety of reasons. You must not assume that because the police had a photograph of [DJC], that he has a criminal record or has previously been charged with an offence. In fact you must not draw any conclusions from the fact that the police had a photograph of the accused man.

15 Ultimately, the jury in the first trial was discharged without verdict following three days of deliberation.

16 On 21 May 2012, a retrial of these matters commenced in the County Court before a different judge ('first retrial'). At the outset of the first retrial, the parties indicated that they were willing to abide by the previous ruling as to the identification evidence. The judge formally adopted that ruling and the trial proceeded.

17 However, the judge subsequently asked the prosecutor about:

the circumstances behind the apparent failure of police to invite the accused to participate in an identification parade and the prosecution's reliance on the photo board procedure.

18 In response, defence counsel applied under s 137 for the exclusion of the identification evidence for the following three reasons:

(a) because the police failed to provide the accused with an opportunity to participate in an identification parade and to hold one;

(b) because of the unfair prejudice arising from the circumstance that the police had the accused's photo which would lead the jury to infer that he was the sort of person who commits such offences as those charged; and

(c) because of the vastly inferior nature of the photo board procedure when compared with that of an identification parade.

19 Defence counsel conceded that these grounds had not been relied upon in the first trial.

20 The parties agreed that, if the judge was satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice, it would be 'in the interests of justice' for his Honour not to treat the judge's ruling in the first trial as binding on him.[1] Having discussed that issue, his Honour noted that regrettably the judge in the first trial had not been asked to exclude the evidence for the reasons relied upon in the application before him. Having considered s 205(2)(b) of the Evidence Act 2008, his Honour held that he should not treat the original ruling as binding on him because it was not in the interests of justice to do so.

21 The parties further agreed that sections 114 (exclusion of visual identification evidence) and 115 (exclusion of evidence of identification by pictures) of the Evidence Act 2008, did not apply since C's identification was made prior to 1 January 2010.[2]

22 On 25 May 2012, the judge ruled that evidence of a photo board identification of DJC was inadmissible pursuant to s 137 of the Evidence Act 2008.

23 In his reasons, the judge referred to comments made by Gibbs CJ in Alexander v The Queen[3] that:

a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason 'only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person.'[4]

24 His Honour was satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice for the following reasons:

This was a clear case of the police using the photo board procedure as part of the detection phase of the investigation. That was permissible so long as it was to assist police in their further inquiries and not intended that the result be used in evidence. This was indeed the informant's intention but in the result the prosecution wished to use the evidence in its trial.

In spite of the distinction between the accused's status as a person of interest and as a suspect, in my view it was always open to the informant to have approached him to ascertain his attitude to participating in a parade. She was not prohibited by the police guidelines in doing so. I was satisfied that police failed unreasonably to provide the accused with an opportunity to participate in a parade when it was practicable to have conducted one had he agreed to that suggestion. No information needed to be disclosed to the accused other than that he was a person of interest.

I do not consider that it was relevant the accused ultimately refused to participate in a parade when invited in his record of interview. By that time the situation was different as he had been arrested for the offending.

Most importantly, following the accused's refusal at the interview, it was always open to police to show the photo board to the three injured victims. But for wholly inadequate reasons police chose not to do so. Given his refusal, the accused could not be heard to complain about this approach and any resulting identification evidence would in all likelihood have been admitted.

Without turning to the particular circumstances of the photo board procedure in this case, there were powerful reasons why that procedure itself was vastly inferior to that of an identification parade.

In all the circumstances, I was concerned the jury would misuse the evidence in an impermissible way and I did not consider that the kind of direction provided by the trial judge as to police possession of the accused's photograph, or more generally in the Domican sense, could adequately address the inherent prejudice which I have described when considered in light of the failure to provide an opportunity of a parade to the accused.

25 The jury was subsequently discharged with the parties' agreement and another retrial was ordered ('second retrial'). The second retrial has been adjourned pending the outcome of this application.[5]

26 The Crown's written submission assumed that the principles in House v The King[6] apply to an appeal from a ruling based on s 137 of the Evidence Act 2008. However, before us, counsel for the Crown withdrew that submission and argued instead that the ruling dealt with a question of law, to which House v The King principles did not apply. Relying on Rixon v Thompson,[7] he submitted that the fact that the application of the section might involve questions of fact and degree or that 'reasonable minds may differ as to how a particular case should be viewed' did not 'convert a rule of law into the exercise of a discretion'.[8]

27 Counsel for the Crown submitted that the trial judge's ruling was wrong in law because the judge had taken the same approach to applying s 137 of the Evidence Act 2008 as would have been applied in exercising the common law Christie[9] discretion. In his ruling, the trial judge stated that he was 'bound to make an assessment of probative value and determine whether it was outweighed by the danger of unfair prejudice'. The footnote to this passage states that:

This was so, whether the section compelled me to exercise something akin to a discretion in the traditional Christie sense, or whether I was making a judgment. Either way, I would have reached the same conclusion.

28 In its written submission, the Crown relied on this footnote, in addition to his Honour's citation of the passage from Alexander quoted above, to support its argument that the judge applied the principles relevant to the exercise of the Christie discretion, rather than applying s 137 of the Evidence Act 2008. The Crown also argued that his Honour's statement that the police had acted unreasonably by failing to give the respondent an opportunity to participate in an identification parade, indicated that he had approached the issue as if he was applying the Christie discretion.

29 Counsel for the Crown submitted that by contrast to the Christie discretion, s 137 required the Court to determine whether the evidence had probative value, and if so, whether the prejudicial effect of admitting the evidence was so great that the interests of justice required its exclusion. The section did not require the Court to compare the incomparable concepts of probative value and unfair prejudice,[10] but rather to consider whether evidence which otherwise had probative value should be excluded. This was a question of law rather than an application of a discretion.

30 Counsel relied on R v Shamouil,[11] which held that in determining whether evidence has probative value, the judge should not take account of the weight or reliability of the evidence, because this is a matter for the jury. He submitted that neither the informant's failure to hold an identification parade nor the delay between the offending and the photo board identification should have been taken into account in assessing the probative value of the evidence, as both of these matters went to weight only.

31 In addition, counsel for the Crown submitted that the judge had not taken sufficient account of the fact that any danger of unfair prejudice to the accused could be overcome by appropriate directions from the judge and that it was common practice for the jury to be warned against reasoning that because the police have a photograph of the accused he must have been suspected of, or have committed, other offences.

32 Further, even if this appeal were governed by House v The King principles, his Honour had taken account of irrelevant considerations in deciding that the evidence should be excluded. Paragraphs [46] to [52] of the judge's ruling emphasised the advantages of identification parades over reliance on photo boards, and the failure of the informant to hold an identification parade prior to showing C the photo board. Further, the judge had erred in giving weight to the fact that the photo board identification was undertaken for investigative purposes, rather than for the purpose of obtaining evidence to be adduced at the trial.

33 All of these matters went to the reliability of the evidence, rather than to its probative value and the judge had misdirected himself by relying on them.

34 Counsel for the respondent submitted that the judge had correctly said in his ruling that he was 'bound to make an assessment of probative value and determine whether it was outweighed by the danger of unfair prejudice'. The judge had asked himself the question required by s 137 and was required to exclude the evidence if its probative value was outweighed by the danger of unfair prejudice. While the judge had to apply s 137, rather than to exercise the Christie discretion, authorities on the exercise of the discretion were also relevant in deciding whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the respondent. His Honour had not taken account of irrelevant factors in answering this question.

35 Counsel submitted that consistently with Shamouil, the judge did 'take the evidence at its highest' in assessing the probative value of the identification evidence, relying on the statement in his Honour's reasons that he was 'obliged to put the evidence at its highest and refrain from resolving conflicts in the evidence or questions of weight which are properly for the jury.'

36 Counsel for the respondent submitted that this requirement did not mean that the judge had to accept the evidence of identification at face value. Otherwise, all forms of identification evidence, whether they were based on an identification parade, identification from a photo board, or identification of a single suspect in police custody would be treated as having equivalent probative value.

37 At the stage when she was investigating the offence, the police informant had shown C the photo board instead of adopting the preferable course of asking the respondent if he would take part in an identification parade. If the respondent had refused to participate in a parade at that stage, it would not have been unfair to rely on the photo board identification. However, by the time the respondent was arrested, C had already identified him from the photo board.

38 Further, in weighing the factors set out in s 137 the judge had to take account of the 'rogues gallery' effect which must have operated when C viewed the photo board comprised of images of persons who had come to the attention of the police, and the fact that this form of identification is less reliable than requiring a witness to select a person at an identification parade, in weighing the danger of unfair prejudice against the probative value of the evidence. It was submitted that the judge had correctly found that this danger could not be overcome by warning the jury about the dangers of identification evidence. Having performed this weighing exercise, the judge had no option but to exclude the evidence.

39 Counsel relied on the deficiencies of photo board identification which were discussed by the High Court in Alexander. The 'mug shot' of the respondent had been taken on 18 April after he had been apprehended for another violent offence. There was a significant risk that C might have been influenced by the fact that the police had the respondent's photograph and that the jury might reason that the police were able to include the respondent's photograph on the photo board because he was suspected of or had committed other violent offences. This risk would not have been as great if the respondent had been identified from the photo board after his arrest because the jury could then have reasoned that the photograph was taken after he was arrested. In these circumstances, the judge had correctly held that the Crown's reliance on a 'second best' means of identification created a danger of unfair prejudice, which outweighed the probative value of the evidence.

40 The judge had not usurped the role of the jury by taking account of the weight of the evidence in assessing its probative value, contrary to the principle in Shamouil.[12] His Honour's emphasis on the informant's failure to hold an identification parade was concerned with the danger of unfair prejudice caused by admission of the evidence, rather than with its probative value. It was open to his Honour to conclude that the dangers caused by the use of the photo board, including the fact that the respondent was shown wearing a grey hoodie, could not have been overcome by warning the jury about the limitations of identification from photographs and telling them they were not to assume from the fact that the police had a photograph of the respondent, that he had a criminal record or had previously been charged with an offence.

41 We would accept the respondent's submission that his Honour did not err by wrongly applying the Christie discretion, rather than considering the requirements of s 137 of the Evidence Act 2008. His Honour's reasons, read as a whole, indicate that he understood that s 137 required him to consider whether the probative value of the identification evidence was outweighed by the danger of unfair prejudice to the accused, and that if that requirement was satisfied, he was required to exclude the evidence. In paragraph [34] of his Honour's reasons, the judge set out the section, referred to the case law on the meaning of its component parts and noted that it did not require the probative value of the evidence to be 'substantially' outweighed by the danger of unfair prejudice. Moreover it was not an error for his Honour to regard authorities on the exercise of the discretion as having some relevance to the requirements which must be considered in applying s 137.

42 As we have said, the Crown submitted that s 137 creates a rule of law, rather than a discretion to which the principles in House v The King apply, so that the Court must accordingly decide whether the evidence was properly excluded under s 137.[13]

43 In MA v The Queen,[14] an interlocutory appeal against the trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008, both parties approached the appeal on the basis that it was a discretionary decision to which the House v The King principle applied. This Court said the following:

Whilst there remains some uncertainty as to whether it is to be so regarded, the decision of DPP v MD[15] gives strong support for the view that the principles in House apply to a review of a decision under s 137. It is to be noted that the prevailing view in New South Wales is that the principles in House apply to review of decisions under s 137. At both parties' invitation we assumed, without finally deciding the question, that it is a discretionary judgment to which the principles in House apply.'[16]

44 For the reasons we explain below, we consider that leave to appeal should be granted and the appeal allowed, regardless of whether s 137 creates a rule of law or involves the application of principles analogous to those applicable to the exercise of a discretionary judgment.[17]

45 We deal first with the submission that the judge did not have regard to the principle in Shamouil that, generally speaking, the assessment of the probative value of evidence does not involve considerations as to its reliability, because this is a matter for the jury. In PG v The Queen,[18] an interlocutory appeal in which the issue was whether the judge had erred in considering that evidence had significant probative value for the purposes of ss 97 and 98 of the Evidence Act 2008, Nettle JA said that:

[t]he assessment of reliability is predominantly a question for the jury, except in cases where the circumstances are such that the issues of credit and reliability are so fraught that it is possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue.[19]

46 We note that the approach in Shamouil has recently been endorsed by a five judge bench of the New South Wales Court of Appeal in DSJ v The Queen[20] (where it was alleged that the reliability of the evidence sought to be admitted was affected by concoction) and the Tasmanian Court of Criminal Appeal in J v Tasmania (relating to the admissibility of a prior inconsistent statement identifying the accused).[21] A similar approach must necessarily apply when assessing the probative value of evidence for the purposes of s 137 of the Evidence Act 2008.

47 Although the judge acknowledged that he was obliged to 'put the evidence at its highest', we consider that he erred in assessing the probative value of the evidence. His Honour's conclusion that the evidence had limited probative value was based on the fact that it was photo board evidence, rather than evidence arising out of an identification parade, that the photo board was used at the stage when the offences were being investigated and that the informant did not give the respondent an opportunity to participate in an identification parade after he had been charged.

48 Although '[t]he safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime',[22] the fact that this was photo board evidence did not deprive it of probative value, but went to the weight of the evidence. By holding that the informant's use of the 'second best mode of identification'[23] deprived the evidence of the probative value sufficient to outweigh the danger of unfair prejudice, the judge usurped the role of a jury.

49 The respondent argued that his Honour's exclusion of the evidence was not based on its possible unreliability, but rather on his view that its probative value was outweighed by the danger of unfair prejudice. But even if that were so (about which we have some doubt), the judge relied on general propositions about the relative value of photo board and identification parade evidence, and on factors relating to the conduct of the investigation by the informant, rather than on whether any unfair prejudice in this case could have been overcome by giving the jury appropriate warnings about use of the evidence.

50 Although his Honour considered that the informant was a person of honesty and integrity, he emphasised that because of her lack of experience she 'failed to turn her mind to the idea of holding an identification parade when it was reasonable and practicable for her to have done so'. He also referred to the fact that the informant initially 'took a gamble' in showing the photo board to C as part of the investigative process, rather than with intent to collect evidence for the respondent's prosecution and the fact that the informant did not attempt to obtain an identification of the respondent by showing the photo board to other witnesses who might have been able to identify him.

51 THD v The Queen,[24] an interlocutory appeal in which it was argued that photo board evidence should be excluded because the police had not organised an identification parade, is relevant to his Honour's first point. In that case, Nettle JA said that:

there is no rule of law that a photo board identification is inadmissible just because an identification parade has not been arranged; even where a defendant is directly suspected and police are able to arrange an identification parade.[25]

52 In relation to the second point, we would reject the view that the informant's failure to consider whether an identification parade should be organised was a sufficient basis for holding that the identification had limited probative value or that its probative value was outweighed by the risk of unfair prejudice to the respondent.

53 In Alexander, where the appeal against conviction arose out of the judge's failure to exercise the Christie discretion to exclude photographic identification evidence, Gibbs CJ said that:

The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. However, as a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held. As a matter of law it would be equally admissible to prove that an identification was made by a witness who was shown a collection of photographs and selected one which he said was the photograph of the person concerned_.[26]_

In my opinion the Court of Criminal Appeal in Doyle was right in thinking that identification evidence from police photographs may have an important probative value which will outweigh its prejudicial effect, more particularly if the jury are so instructed as to minimize the risk that they may take into account an adverse inference as to the accused's antecedents.

...

In my opinion the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence.[27]

55 We also consider that any possibility of unfairness was considerably reduced by the fact that the respondent had refused to participate in such a parade after he was arrested. Of course, had the respondent subsequently been identified at an identification parade, then the question of the admissibility of that identification, having regard to the earlier photo board identification, would have had to have been addressed.[28]

56 In Alexander, Stephen J differentiated between the use of a photo board identification at the investigative stage, and its use as evidence at trial. But the majority of the Court did not consider that the absence of an identification parade after arrest of an alleged offender required the trial judge to exercise his or her discretion to exclude that evidence. Alexander was, of course, an appeal against conviction based on the judge's failure to exclude the evidence in the exercise of the Christie discretion. However, we see no reason why a judge should take a different approach in deciding whether evidence should be excluded under s 137 of the Evidence Act 2008 because the probative value of the evidence is outweighed by the danger of unfair prejudice.

57 Nor do we consider that the failure to show the photo board to other witnesses who might have been able to identify their attacker deprived C's identification of probative value or created unfair prejudice against the respondent. To accept this argument would mean that a failure to call one possible witness could be regarded as depriving the evidence of a different witness of probative value, or mean that the calling of the evidence of that single witness created an unfair prejudice against an accused.

58 As we have said, a considerable portion of his Honour's reasons related to the desirability of holding an identification parade, rather than to the probative value of the particular evidence. In that respect, we consider that his Honour erred.

59 The judge also took account of the 'rogues gallery' effect of showing a photo board compiled by the police prior to the respondent's arrest and to the delay between the offence and the date when the respondent was shown the photo board.

60 In relation to the 'rogues gallery' effect, his Honour said the following:

The 'rogues gallery' effect was of particular concern in this case. The most innocuous and innocent explanation as to how police possess a photograph of the suspect is that they have used one taken on his or her arrest. Here, the police chose to use a custody photograph taken one week before the affray, long before the arrest of the accused. While the jury was not to be informed the photo was taken one week before the affray, a benefit to the accused, nevertheless there could be no positive, innocent explanation provided which would ameliorate, or perhaps dispel altogether, speculation that police had the accused's photograph because he had a criminal record. Of course, such speculation, although impermissible, would be accurate. Such an approach was more likely in the absence of an innocent explanation for police possession of the photo.

[C] was told by police that his judgment should not be influenced by the fact that he was shown these images, that he was not obliged to identify anyone and specifically that 'he should not conclude or guess that the images contained a picture of the person who committed the crime.' In truth, this sort of pro-forma incantation may be expected to confuse, or be altogether disregarded, by an identifying witness who would ordinarily expect the opposite - otherwise, he or she would think: why am I being asked to go through the identifying process in the first place if the suspect's photo is not there? This likely phenomena was acknowledged by the High Court in Pitkin v R where it is said: '...a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to [him or her] by the police are photographs of likely offenders.'[29] This understandable human expectation, which it can be assumed applied in [C]'s case, must have undermined the force of the direction given to him by police and was another factor tending to undermine the probative force of the identification made.

61 There is no reason to consider that C would have ignored the remarks made to him by the police. Further, if the evidence had been admitted, the trial judge would have been required to direct the jury that they were not to attach significance to the fact that the police had a photograph of the respondent or to assume that this was because he had a criminal record or had been previously charged with an offence. The Victorian Criminal Charge Book contains a charge for use in circumstances where the photograph is taken before the accused is taken into custody. Whether it would be an appropriate or sufficient direction in any given case would, of course, depend upon the facts of that case.

62 In our view, an appropriately directed jury would not reason that the police used the photograph because the respondent was 'the kind of person who would have committed these serious offences, including using such a weapon like the meat cleaver'. As his Honour himself acknowledged, courts must proceed on the basis that juries will comply with the directions provided by a judge. This is not such an exceptional case that it can be assumed that they would not do so.

63 His Honour also took account of the delay of about five and a half months between the observations of the offence and the identification made by C. We would accept that a lengthy delay between the commission of an offence and the identification of an alleged offender might, in some circumstances, create an unfair prejudice to the accused, outweighing the probative value of identification evidence. We do not consider that this is such a case. As we have said, two months after the accident, C described the male with the meat cleaver in considerable detail, including his 'biggish nose'.

64 When C was shown the photo board, he pointed to the accused's photograph and said 'That one. I remember the shape of his nose.' His Honour set out the description which C gave at the committal hearing of the events:

He said the closest he came to the man with the cleaver was four metres and that he moved back to eight metres away from him. The assailant had pulled the hoodie up over his head over a black peaked cap. When asked what it was about the shape of the nose of the person that he remembered, he replied, 'I don't know. I just knew'. In response to the suggestion that there was nothing distinctive that he could remember about the man's nose, he replied, 'I just remembered the shape'. [C] agreed that the person in the photograph was wearing a grey hoodie.

65 The matters which may throw doubt on C's identification are likely to be the subject of vigorous crossexamination at the trial and can be adequately dealt with in his Honour's jury directions.

66 We have viewed the photo board, which shows men of similar ages, most of whom appear to come from a non-Anglo-Saxon background. All of the men have short dark hair. Thus the photo board accords with the description given by C. In the photo board, DJC is shown wearing a grey garment, which could be, but is not clearly shown as a 'hoodie', because the hood or collar is around his neck and not over his head At least two other men depicted on the photo board were also wearing garments which could possibly be 'hoodies' and the garment worn by one of those man is grey.

67 In our opinion, there is nothing in the photo board which highlights the appearance of the alleged offender or which is likely to have increased the chance that C would select the respondent, rather than other men on the photo board.

68 If the principle in House v King applies to this appeal, leave to appeal can only be granted if the judge acted on the basis of an incorrect principle, mistook the facts, considered irrelevant matters or failed to consider relevant matters, or if the decision was so plainly unreasonable or unjust that an error must have occurred. We consider that this requirement is satisfied because of the great emphasis which the judge placed on the relative advantages of identification parades, compared with photo board identifications. This constituted a failure to properly consider the issues which the judge had to decide and weigh against each other.

69 If, on the other hand, we accept the Crown submission that this interlocutory appeal raises a question of law, we consider that his Honour wrongly held that the probative value of the evidence was outweighed by the dangers of unfair prejudice to the accused. We are reinforced in that view by the fact that the respondent refused to participate in an identification parade, even though this occurred after he had been identified from the photo board.

70 On either basis, we consider that leave to appeal should be granted and the Crown appeal against the exclusion of the photo board evidence should be allowed.

[1] Criminal Procedure Act 2009, s 205(2)(b).

[2] Evidence Act 2008, sch 2, clause 5.

[3] [1981] HCA 17; (1981) 145 CLR 395 ('Alexander').

[5] The interlocutory appeal was conducted on the basis of a certification based on s 295(3)(a), rather than on the basis of s 295(3)(c), presumably because although the trial was underway the judge had decided to discharge the jury.

[6] [1936] HCA 40; (1936) 55 CLR 499.

[7] [2009] VSCA 84; (2009) 22 VR 323.

[9] R v Christie [1914] AC 545 ('Christie').

[10] See, eg, Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 528 in which McHugh J said that 'the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term "outweigh" suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison'.

[11] [2006] NSWCCA 112; (2006) 66 NSWLR 228 ('Shamouil').

[12] [2006] NSWCCA 112; (2006) 66 NSWLR 228.

[13] It was not argued that even if a decision under s 137 is not a discretionary judgment to which House v The King applies, the Court should exercise a degree of appellate restraint akin to that applicable to the exercise of a discretion: see DAO v The Queen [2011] NSWCCA 63; (2011) 278 ALR 765, 770 [29] (Spigelman CJ).

[14] [2011] VSCA 13. Note however that in MD the appeal was from a refusal to exercise a discretion under s 138, rather than s 137.

[15] [2010] VSCA 233, [27]-[30].

[16] [2011] VSCA 13, [13].

[17] For a detailed discussion of this issue see R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 and the detailed discussion of this issue in DAO v R [2011] NSWCCA 63; (2011) 278 ALR 765, 771-5, [35]-[60] (Spigelman CJ), 784 [104] (Allsop J), 794-6 [167]-[173] (Simpson J), Kirby and Schmidt JJ agreed on this issue. At 775, [60], Spigelman CJ remarked that in exercising the power to interfere with an interlocutory decision 'the relevant degree of appellate restraint is at the House end of the spectrum, rather than at the Warren end', even if a decision under s 137 is not, strictly speaking, a discretionary decision.

[18] [2010] VSCA 289.

[19] Ibid, [62]. Note, however, that in BSJ v The Queen [2012] VSCA 93, this Court considered that where it was argued that the evidence was affected by concoction this was an exception to the general rule. That case was decided before the New South Wales and Tasmanian decisions discussed below.

[20] [2012] NSWCCA 9 ('DSJ').

[21] [2011] TASCCA 7.

[22] Alexander [1981] HCA 17; (1981) 145 CLR 395, 399-400 (Gibbs CJ).

[23] This is a reference to the judgment of Stephen J in Alexander [1981] HCA 17; (1981) 145 CLR 395, 417.

[24] [2010] VSCA 115; (2010) 200 A Crim R 106.

[25] Ibid 113 [34]. Maxwell P also declined to accept this argument, though his reason appeared to be that the respondent had not consented to participate in an identification parade. Neave JA agreed with Maxwell P and Nettle JA.

[26] [1981] HCA 17; (1981) 145 CLR 395, 400 (emphasis added).

[28] R v Doyle [1967] VicRp 82; [1967] VR 698; Alexander [1981] HCA 17; (1981) 145 CLR 395, 429.

[29] [1995] HCA 30; (1995) 130 ALR 35, 38.