DPP v Hague [2018] VSCA 39

1 The respondent ('KH') is facing trial in the Supreme Court on a charge of murder. The prosecution wish to lead evidence from a person ('T') who was standing next to the deceased ('S') when he was fatally stabbed. The evidence in question is identification evidence. T will say that KH is the person he saw strike the fatal blow.

2 In a pre-trial application, counsel for KH sought to have T's evidence excluded under s 137 of the Evidence Act 2008 (the 'Act'). They contended that the evidence was 'so poor and contradictory that it is without any probative value'. Further, they submitted, admitting the evidence would create a significant danger of unfair prejudice to KH.

3 The judge upheld the defence application, ruling that T's evidence must be excluded because its probative value was outweighed by the danger of unfair prejudice. His Honour considered that the evidence had 'very little weight'.[2] In his Honour's view, there was 'such a high level of inconsistency' in T's various statements to police that it

undermines the honesty of the witness and heavily impacts the reliability of his evidence.[3]

4 On application by the prosecution, his Honour certified under s 295(3)(a) of the Criminal Procedure Act 2009 that exclusion of the evidence 'would substantially weaken the prosecution case'. That certification having satisfied the statutory precondition to an application for leave to appeal,[4] the prosecution now seeks leave to appeal from his Honour's ruling.

5 It was common ground that this application was governed by the principles in House v The King[5] and that, if error were demonstrated, this Court should decide the exclusion application for itself. Initially, the prosecution invoked the residuary category of error in House, contending that his Honour's decision was 'unreasonable or plainly unjust' or, as it is expressed in decisions of this Court, 'not reasonably open'.[6] Ultimately, however, senior counsel confirmed that the real complaint was one of specific error, namely, that by basing his decision on an assessment of credibility and reliability, his Honour had taken into account an irrelevant consideration.

6 For reasons which follow, we would grant leave to appeal, allow the appeal, set aside his Honour's ruling and order instead that the application for exclusion be refused. It may be accepted that questions will arise about the credibility and reliability of T's evidence but, as the majority decision in IMM v The Queen[7] made clear, those are matters for the jury, not for the judge undertaking the s 137 analysis. For that purpose, the judge is obliged to assume that the jury will accept the evidence in question as credible and reliable.[8]

7 Once that assumption is made, the probative value of the identification evidence is high. Such risk of unfair prejudice as exists is limited and can be further moderated by directions to the jury which the prosecution has foreshadowed will be sought. The application for exclusion must therefore be refused.

8 At first instance, counsel for KH submitted that to accept T's evidence would be 'irrational because it is in itself inherently contradictory'. And further:

It's not just that he is unreliable or inaccurate, it's that he is inherently contradictory that the jury cannot sort out at what point was he telling the truth or otherwise ...

9 In explaining his conclusion, the judge set out a detailed analysis of the chronology of events between the death of S in 1995 and the making of T's final statement in 2017, as follows:

The dangers of identification evidence, with its potential errors and risk of misuse by juries are well known. This is a case where the witness [T] has seen the death of an associate, at close quarters, on 5 May 1995 and is the only witness to identify the accused as the assailant. In my opinion, the weaknesses in his evidence fall to be assessed by the following features which will include some references to relevant publicity and its possible effect:

(a) the killing of [S] as witnessed by [T] occurred 22 years ago during which time he has been subject to all the influences of associates, local gossip and publicity;

(b) at the time of the killing, [T] did not know the accused though he believed he had seen him on a prior occasion sitting in a motor vehicle during an attack on that vehicle, in which he had participated;

(c) on the day of the killing of [S], the only description [T] gave of the attacker [in] his later statement is that he had 'watery eyes' and 'looked crazy'. He suggested to the police that the killer was [a different person] but did not name him in the statement. He is not clear whether he looked back as he ran from the scene; describing himself as being in shock and overwhelmed by the circumstances;

(d) at an identification parade on 16 May 1995, in which the accused participated, [T] failed to identify the accused;

(e) in February 1996, some 9 months after the incident, [T] made a statement describing the incident that had happened at [a public event] in October 1995 when he claimed to have seen the man who stabbed [S]. He heard his friends say that the man he saw was the accused. He described that to [a woman] that evening and [a] police officer the following Monday;

(f) in March 1996 a second identification parade was held. The accused participated and [T] again failed to identify anyone. In a later statement about that process he said he did not identify anyone on that day because he did not have a vivid recollection of what the person looked like;

(g) in October 1996, the accused was charged with the murder of [S]. Two years after the stabbing had occurred, on 6 May 1997 [T] gave evidence at the committal in relation to that charge and said, among other things, that the killer 'could have been anyone';

(h) in July 1997, he made a further statement admitting previous lies and claiming the person he saw at the [public event] was the killer and was [the accused]. He also said, his evidence at the committal was a lie in several respects;

(i) in February 1998, the murder charge against the accused was the subject of a nolle prosequi and the fact that the trial was not proceeding was the subject of local publicity in [the local community];

(j) in June 2002, local publicity was given to the fact that the accused was sentenced for theft in the County Court;

(k) in 2009, the accused was charged in this Court with attempted murder which was unrelated to this matter. It arose from a shooting ... The committal hearing for that charge was publicised in [the local community] in May 2010;

(l) as I described in my ruling on the application for change of venue in this case, on 11 August 2010, Coghlan J ordered that the trial of the accused for attempted murder be transferred for hearing in Melbourne[[9]] on the application of the accused. He did that because he considered the extensive publicity about the allegations of murder, that I am now concerned with in this case, would have a significant effect on the prospect of a fair trial. His Honour said, 'I regard the particular insidious [sic] nature of this material as warranting [a change in] the place where the trial would take place';

(m) in June 2011, the accused having pleaded guilty to lesser charges than attempted murder, substantial publicity was given to the sentence imposed on him in this Court in August 2011. That sentence was one of 4 years with a minimum term of 2 and a half years. As I noted in my ruling on the application for change of venue for this trial, the front page publicity in [the local community] concerning that sentence for firing gunshots ... was linked to this case on the basis that in the opinion of [S's] mother if the applicant did not kill [S], he knew who did. Thus it was reported that was the reason she attended the sentencing of the applicant on the unrelated matter;

(n) in May 2015 the case was again commanding front page attention in the [the local community] featuring the applicant quoted as saying that he wanted the killer found also;

(o) in March 2017, substantial publicity accompanied the announcement of a million dollar reward ... Then on 24 March 2017 came the publicity which featured the case again including the accused and carrying the suggestion that witnesses have been 'done away with' because of the importance of their evidence. That was followed by front page denials by the applicant that he was the killer of [S] and more analysis of the murder;

(p) further in March 2017, a program ... was aired [on television]. It is enough to observe that the clear message from the program was that the applicant was guilty of the murder in the opinion of police, that his alibi had been 'cracked' and that they were 'building a case' against him; and

(q) on 23 October 2017, [T] made his final statement. Apart from the factual matters, he described being diagnosed with paranoid schizophrenia and being placed on anti-psychotic medication. This diagnosis was later changed to one of drug induced psychosis and post-traumatic stress. He acknowledges that he watched the program on the Seven Network concerning this case. That statement also describes an arrangement involving marijuana alleged to have been sold by [S] and [a person since deceased] for the accused which he identifies as another reason why he failed to tell the truth about [S's] death until now.[10]

10 At one point, the judge had asked defence counsel what it was about the circumstances which 'put it beyond the capacity of the jury to see the weaknesses in the evidence'. Counsel responded that there would need to be a direction to the jury that there had been

a failure in procedure that provides for the protection of defendants in our system to provide identification in a safe way and in these circumstances, where procedure has not been followed, the jury cannot ... accept identification by name from an out of court witness ...

11 Counsel for KH submitted that the non-identification of KH at either identification parade meant that what was now before the court was 'identification without verification'. On this application, it was said more than once that 'procedure' had not been followed. The written contentions went so far as to assert that the prosecution were seeking 'to circumvent procedure in such a way as increases the dangers of unfair prejudice'.

12 We reject these submissions. It is notable that no submission has been advanced that s 114 of the Act was not complied with, nor that the identification evidence was inadmissible by reason of any such non-compliance. This presumably reflects an acceptance by the defence that the holding of the two identification parades - with KH present on each occasion - satisfied the requirement in s 114(2)(a). As to verification, T will say that he did recognise KH on each occasion as the person who had attacked S, but was too frightened to say so at the time - or for some considerable time afterwards.

13 His Honour's conclusion on probative value was in these terms:

I must examine the admissibility of this evidence without regard to other circumstantial or direct evidence that may be available to support the prosecution case. My summary above underlines the point made on behalf of the accused about the significant inconsistency in [T's] various accounts. In my opinion, and given the history, the evidence of [T] has very little weight, with his final definitive position provided 22 years after the death of [S]. Honest and convincing witnesses can be mistaken when making identifications, however such a high level of inconsistency in this case undermines the honesty of the witness and heavily impacts the reliability of his evidence. In my view, this evidence, taken at its highest 'is not very high at all'.[11]

14 Attention was drawn during argument to the statement in the first sentence of this paragraph. With great respect, it was not correct to assess T's evidence in isolation from the other evidence proposed to be led. As the prosecutor had correctly submitted to his Honour, the probative value of the evidence - and the danger of unfair prejudice - had to be assessed in conjunction with all of the other evidence proposed to be led.[12] Counsel for KH did not suggest otherwise. On this application, however, senior counsel for the Crown accepted that this error in approach had not materially affected the outcome.

15 As to the danger of unfair prejudice, his Honour said:

In addition, and to answer the rhetorical question posed by the prosecutor in argument, there is significant prejudice to the accused in admitting this evidence. This evidence would be the only positive identification of the accused as the attacker of [S] and would achieve considerable significance in the minds of the jury. Yet, the means by which the evidence would have to be challenged would necessarily involve reference to material, some of which I have just referred to, which would carry substantial prejudice for the accused. That process may need to involve aspects of the prior history of the accused and allegations of other criminal conduct by him. It may also involve examining aspects of the evidence which now, 22 years later, have reinforced the conclusion the witness has come to as to who he saw on 5 May 1995, including the very large volume of historical and contemporary publicity. Over a period of 22 years of various versions given by the witness, in my opinion, it would become extremely difficult to adequately test the circumstances under which he gave his various versions and why he decided to give them.[13]

16 In those circumstances, his Honour said, he had concluded that the probative value of the evidence was 'overtaken by the unfair prejudice of admitting it'. Directions to the jury would not be sufficient to avoid 'the significant risk of a miscarriage of justice'. His Honour therefore ruled that the identification evidence could not be led, although T could give evidence of what he had seen on the day of the murder 'to the extent he is able to describe [S's] assailant'.[14]

17 In IMM,[15] the High Court was concerned to elucidate the task of a trial judge in assessing the probative value of evidence for the purposes of s 137 (and, in the case of tendency evidence, for the purposes of s 97(1)). The judgment of the majority (French CJ, Kiefel, Bell and Keane JJ) dealt first with relevance, noting that under s 55 evidence is relevant if it

could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[16]

There can be no doubt that the reference to the effect that the evidence 'could' have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its 'rational' effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.

The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words 'if it were accepted', which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.[17]

18 Their Honours dealt next with 'probative value'. As defined in the Act, the probative value of evidence means

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[18]

The assessment of probative value, their Honours said, requires that

the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest.[19]

19 Crucially, their Honours held that the assessment of probative value must be approached in the same way as the assessment of relevance, that is, on the assumption that the jury will accept the evidence.[20] Their Honours said:

Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two - reliability and credibility - as Dupas v The Queen may imply. They are both subsumed in the jury's acceptance of the evidence.[21]

20 Their Honours emphasised, however, that the judge must still consider 'the real probative value' of the evidence. Their Honours said:

It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.[22]

21 Counsel for KH drew particular attention to the highlighted sentence in this passage, from which the trial judge quoted in his reasons.[23] In support of his Honour's conclusion that T's evidence, taken at its highest, was 'not very high at all', counsel for KH referred to Bayley v The Queen,[24] in which this Court upheld a conviction appeal on the ground that identification evidence had been wrongly admitted. In that case, a witness gave evidence that, nearly 12 years after she had been violently raped, she had seen a photograph on Facebook which she recognised as being of the man who had attacked her.

22 The Court (Warren CJ, Weinberg and Priest JJA) concluded that the evidence was 'not merely weak, but simply unconvincing'.[25] Their Honours said:

The evidence regarding the Facebook photograph was in some respects no better than a dock identification. Indeed it could reasonably be viewed as worse. [The witness] was faced with the single photograph in circumstances that were themselves highly suggestive of guilt of the most serious crimes imaginable. Evidence of that kind has often been excluded and is commonly regarded as insufficient, on its own to support a conviction.[26]

The Court also said - as quoted by the judge in the present case:

There are many examples, at trial level, of weak identification evidence having been excluded rather than left to the jury, with strong warnings, for their consideration. There are also examples at appellate level of such evidence having been said to be inadmissible.[27]

23 Plainly enough, the probative value of identification evidence is likely to be affected by 'surrounding circumstances' such as:

• the weather conditions at the time the witness observed the person purportedly identified ('in foggy conditions and in bad light');
• the distance between the witness and that person; and
• the presence of other people in the vicinity of that person at the relevant time.

24 Thus, as the High Court said in IMM, it would be open to a judge to conclude that the existence of foggy conditions and poor light at the time of the witness's observation of the relevant events reduced 'the extent to which' the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. In those circumstances, the 'highest level' of the evidence might be assessed as being 'not very high at all'. In the same way, the lapse of time before the identification in Bayley was made, and the circumstances in which it occurred, were held to have greatly diminished 'the extent to which' that evidence - even assuming its acceptance by the jury - could have rationally affected that assessment.

25 This is not a case of that kind. Here what is said to make T's evidence 'weak and unconvincing' is not the circumstances in which he was able to observe the assailant, nor the lapse of time before T first identified KH. As has already been noted, T was standing next to S and saw the attacker at close quarters. He will say that he recognised KH at the first identification parade, held within a matter of weeks, but did not say so at the time.

26 Instead, the submissions for KH - and the decision of the judge - rest on what are said to be the 'inherent contradictions' and 'internal inconsistencies' between T's successive statements to police. Those criticisms go to the credibility and reliability of the evidence, the very matters which the majority in IMM said must be assumed for the purposes of the s 137 assessment. Nothing in the 'foggy conditions' example which their Honours gave modifies that requirement.

27 Consistently with IMM, therefore, his Honour was obliged to proceed on the assumption that the jury would accept as credible and reliable T's proposed evidence that KH is the person he saw stab S. T will say that, at the time of the stabbing, he did not know KH but recognised him as the person who had been sitting in the driver's seat of a motor vehicle which he (T) and others had earlier attacked in retaliation for an attack on S. There is other evidence that KH was in fact the person sitting in the car at that time.

28 Plainly enough, given where T was standing when the fatal attack took place, and given what he will say about when he first identified KH, his evidence of identification - taken at its highest - is of high probative value. Whether it will in fact be accepted by the jury is a matter for trial. There will, inevitably, be extensive cross-examination of T, and all of the weaknesses and inconsistencies in the accounts he has given will doubtless be highlighted, in order to undermine his credibility and reliability in front of the jury. But, for the reasons given, it was an error of law for his Honour to base his decision on his own assessment of T's credibility and reliability.

29 We turn to consider the question of unfair prejudice.

30 Under s 137, the question for the judge is whether the probative value of the evidence sought to be led 'is outweighed by the danger of unfair prejudice to the accused'. Defence arguments concerning unfair prejudice for the purposes of s 137 typically concentrate on the risk of misuse of the evidence in question. Most commonly, the danger is said to lie in the risk of the evidence being used by the jury for an improper or prejudicial purpose, or of the evidence being given weight which it does not deserve.

31 In the present case, however, the argument about prejudice concentrated on the practical consequences for the conduct of the defence if the evidence were led. It was said that defence counsel would be unfairly constrained in their ability to test T's evidence, creating a risk that the evidence would be given more weight than it deserved.

32 There is clear authority that arguments of that kind are available in this context. There is a material difference in language between s 137 and the preceding sections, ss 135 and 136. Under s 135, the Court has a general discretion to refuse to admit evidence if:

its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; ...[28]

Under s 136, the Court may limit the use to be made of evidence:

if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; ...[29]

33 As can be seen, the risk of prejudice which the Court must consider under those sections is prejudice flowing from the evidence in question (s 135) or from 'a particular use' of the evidence in question (s 136). As the New South Wales Court of Criminal Appeal held in Hannes v Director of Public Prosecutions (Cth) [No 2],[30] s 137 does not confine the danger of unfair prejudice to prejudice flowing from the evidence in question. Barr and Hall JJ said:

There is no reason to read an implied limitation into s 137, based on the different language adopted in the two preceding sections, nor otherwise to limit it according to former general law principles. Care must, of course, be taken in identifying unfair prejudice resulting from the practical consequences for the accused of admitting the evidence. Thus, the mere fact that, as a practical matter, an accused might think it impossible to resist the prosecution case without taking the risk of giving evidence, would not constitute unfair prejudice.[31]

34 In the present case, the argument from practical consequences was put in different ways. First, counsel relied on what was said to be 'the prejudicial effect of gossip, of unverified comment'. Before the judge, counsel submitted that:

The problem for the defendant in trying to have a fair trial is that in order to counter [T's] evidence we almost have to approach the case on the basis, well, let's look at how much gossip you heard. Everybody said, everybody knew.

In this Court, counsel argued that the prosecution were seeking to rely on the fact that 'everybody outside court says it's [KH]'. The practical reality, it was said, was that T had heard the gossip and 'he's going to give that evidence'.

35 That submission must be rejected, in our view. T will be giving evidence about what he saw, about the occasions on which he recognised KH as the person who had stabbed S, and about why he did not speak up earlier. On ordinary principles, he could not give evidence about anything he had heard from anyone else.[32] Whether and to what extent that topic is to be opened up is a matter for the defence.

36 It is not, of course, unusual for a serious crime committed in a small community to become the subject of speculation, gossip and media publicity within that community. It is likewise not unusual for defence counsel to have to decide whether the forensic advantage of putting to a prosecution witness that he/she has been influenced by comment of that kind outweighs the risk of highlighting the notoriety of the case. We have no doubt that, with the assistance of the judge's directions, the jury will be able to deal with these issues appropriately.

37 Secondly, it was said, challenging T on his repeated failures to identify KH at earlier stages would inevitably involve asking him why he was afraid of reprisals. As the judge recorded, the primary reason given by T for not initially telling the police what had actually happened was that

he was scared for his life and for his family. He was told by a number of people not to say anything, that he would be in trouble if he spoke. He also said there was a code which required members of the gang that he was in not to talk to the police. He describes [the deceased] being involved in the purchase of a pound of marijuana from [KH] and he understood [the deceased] and others were selling marijuana for [KH].[33]

38 The submission for KH in this Court was that the defence could not effectively challenge this explanation without opening up prejudicial topics suggesting KH's involvement with gangs and/or drug dealing. There was also the risk, it was said, of reference being made to KH's subsequent convictions (detailed in his Honour's reasons.)[34] In response to questions from the Court, senior counsel for KH confirmed that she had already had an opportunity to cross-examine T about this issue on the voir dire. It seems, however, that nothing emerged from that cross-examination to suggest that the defence would face any unusual or unexpected difficulties. What had become 'perfectly plain', counsel said, was that T's explanation rested on 'the fear that he would be the victim of a further attack and that might be from someone associated with [KH] or it might be [KH] himself'.

39 In response, senior counsel for the Director submitted that it would be perfectly possible for the defence to attack T's credibility, and to challenge the 'fear' explanation, without the need to open up those subjects. The prosecution will not be leading evidence about drug dealing between KH and S. The focus will be on the attack on the vehicle as 'founding the motive'. Similarly, there will be no occasion for reference to be made to KH's subsequent criminal activity.

40 At the same time, senior counsel submitted, evidence about the 'gang mentality' which operated, about the associated 'code of silence', and about the resort to violence exemplified by the car incident, would necessarily be prominent in the trial. The jury will also hear about the ongoing discussion of the case in the local community, and in the media, and about the offer of a $1 million reward. Several witnesses will be giving evidence that they only came forward after seeing the television program, and will doubtless be cross-examined about their motives. Counsel for KH did not take issue with these submissions.

41 Attention was also drawn to what T would say in his evidence about the second identification parade. According to his statement, T will say:

I remember seeing [KH] in the line-up when I walked into the room. [KH] scarred [sic] the shit out of me I couldn't stop shaking. I looked at [him] and he eye balled me. I went cold, he look [sic] straight through me. It was like he wanted to kill me it was pure hatred on his face. I didn't and couldn't point him out.

As senior counsel pointed out, this aspect of T's explanation for delay has nothing to do with KH's 'reputation', or other extrinsic matters, but concerns a specific encounter between the two men.

42 It may be accepted that there is, at least, the possibility that cross-examination of T about his claim of fearfulness may require reference to topics which do not show KH in a favourable light. It is, of course, very difficult to anticipate at this stage exactly how KH's case will be conducted at trial.[35] But we see no reason to doubt that, under the supervision of the trial judge, and with the cooperation of the prosecution as foreshadowed on this application, a very effective cross-examination of T can be conducted without unfairness to the defence case. It should be added that, even if the judge's ruling stood, T would still be able to give evidence about what he saw when S was stabbed and about his own involvement in the attack on the car in which KH was sitting.

43 We referred earlier to the directions which will be sought. It was common ground that a direction would need to be given on identification evidence, under s 36 of the Jury Directions Act 2015. We note that the request for such a direction would need to 'specify the significant matters that may make the evidence unreliable'.[36] There would also need to be an unreliable witness warning under s 32 of that Act. These directions will further mitigate any risk of unfair prejudice.[37]

44 As discussed with counsel in argument, the reluctance of a person to testify against an accused person out of fear of reprisals is not uncommon in the criminal courts, nor is it implausible. It would be an odd thing, in our view, if evidence of high probative value, involving what would seem to be (taken at its highest) a plausible explanation for delay in identification, had to be excluded merely because the explanation which the witness would give for the delay might show the accused person in a bad light. As the prosecutor conceded, there may be cases where prejudice of this kind is so extreme that exclusion of the evidence would be necessary, but the present is not such a case.

45 A very similar argument was advanced - and rejected - by the New South Wales Supreme Court in R v Hawi [No 11].[38] That case, like this, involved identification evidence. There was a delay in the identification which, according to the witness, was because she was 'afraid of repercussions' if she came forward. The trial judge rejected a defence submission that exploring why she was frightened would create 'real and active prejudice'. R S Hulme J said:

[T]here are ways of cross-examining the witness that could serve to reduce, or eliminate, the reliability with which the jury would regard the evidence without introducing all of the prejudicial elements that [defence counsel] identified.[39]

46 For these reasons, in our view, the probative value of the evidence - assessed on the assumption that it will be accepted by the jury - clearly outweighs the danger of unfair prejudice. The application for exclusion therefore must be refused.

47 The key to the resolution of the present application lies in two critical errors in the following paragraph of his Honour's reasons for excluding the identification evidence:[40]

I must examine the admissibility of this evidence without regard to other circumstantial or direct evidence that may be available to support the prosecution case. My summary above underlines the point made on behalf of the accused about the significant inconsistency in [T's] various accounts. In my opinion and given the history, the evidence of [T] has very little weight, with his final definitive position provided 22 years after the death of [S]. Honest and convincing witnesses can be mistaken when making identifications, however such a high level of inconsistency in this case undermines the honesty of the witness and heavily impacts the reliability of his evidence. In my view, this evidence, taken at its highest ' is not very high at all'.[41]

48 With respect, his Honour first misdirected himself when he considered that he 'must examine the admissibility of this evidence without regard to other circumstantial or direct evidence that may be available to support the prosecution case'. His Honour's expressed approach directly conflicts with the approach which must govern the assessment of probative value following IMM.[42] In that case, the High Court made clear that the assessment by a trial judge of the probative value of evidence for the purposes of both s 97(1) and s 137 of the Act, 'requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest'.[43] Further, an assessment of probative value - the capacity of a piece of evidence to affect the assessment of the probability of the existence of a fact in issue - must be made in conjunction with other evidence.[44]

49 His Honour next misdirected himself, in my view, when he took into account T's lack of honesty and reliability borne of 'such a high level of inconsistency'. As was made clear in IMM, in determining whether evidence is relevant, a trial judge is denied any consideration of whether evidence is credible or reliable.[45] The Court also made clear (and repeated) that the assessment of probative value for the purposes of s 137 'requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue',[46] and that questions of credibility and reliability cannot be permitted to intrude. Thus, the Court observed:[47]

Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two - reliability and credibility - as Dupas v The Queen[[48]] may imply. They are both subsumed in the jury's acceptance of the evidence.[49]

50 Plainly, the twin errors made by the trial judge vitiate his Honour's ruling. Leave to appeal must be granted, the appeal allowed and the interlocutory decision set aside. In those circumstances, this Court 'may make any other decision that [it] considers ought to have been made'.[50] Given that the parties submitted that, in the event that the Court allowed the appeal, the Court should make its own 'other decision', I agree with the other members of the Court that the application made under s 137 of the Act for exclusion of T's evidence should be refused.

51 I regard T's evidence as unconvincing and weak. It is subject to a plethora of infirmities which it is unnecessary for me to catalogue. They are set out in his Honour's ruling and have been repeated in the judgment of Maxwell P and Beach JA. Given that I am not, however, permitted to take into account T's considerable lack of credibility and reliability; that I must take his evidence at its highest and assess its probative value in conjunction with the other evidence in the case; that I consider that notwithstanding its weaknesses, T's evidence is not 'so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury';[51] and that, although there is undoubted prejudice to the respondent from the admission of the evidence, that prejudice is not incapable of satisfactory redress by the trial judge via directions and other measures designed to ameliorate the prejudice; I am not persuaded that the probative value of the evidence is outweighed by the risk of unfair prejudice. I therefore agree with the orders proposed by the other members of the Court.

52 Of course, the fact that I have concluded that T's evidence does not fall to be excluded pursuant to s 137 of the Act says nothing about how the trial judge should approach the still pending application for a permanent stay of the proceeding.

[1] This document was previously handed down as an anonymised judgment and published under the name DPP v John Wearn (a pseudonym) but is now published under the name of the Respondent.

[2] R v Hague [2018] VSC 26 [48] ('Reasons').

[4] Frazier (a pseudonym) v The Queen [2017] VSCA 370 [7], [31].

[5] [1936] HCA 40; (1936) 55 CLR 499 ('House'); see McCartney v The Queen [2012] VSCA 268; (2012) 38 VR 1, 11 [46]-[48].

[6] Brewer (a pseudonym) v The Queen [2017] VSCA 117 [10] and the cases there cited.

[7] (2016) 257 CLR 300 ('IMM').

[9] R v [Wearn] (Unreported, Supreme Court of Victoria, Coghlan J, 11 August 2010).

[10] Reasons [47] (emphasis in original).

[11] Ibid [48] (emphasis added) (citations omitted).

[12] Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, 185-6 [30]; IMM (2016) 257 CLR 300, 313-14 [45].

[15] (2016) 257 CLR 300.

[17] IMM (2016) 257 CLR 300, 312 [38]-[39].

[18] Evidence Act 2008 Dictionary pt 1 (definition of 'probative value').

[19] IMM (2016) 257 CLR 300, 313 [44].

[22] Ibid 314-15 [50] (emphasis added) (citations omitted).

[23] See [13] above; see also Reasons [46].

[24] [2016] VSCA 160 ('Bayley').

[27] Ibid [76] (citations omitted); Reasons [46].

[30] [2006] NSWCCA 373; (2006) 205 FLR 217.

[31] Ibid 293 [315]. See, eg, R v Cook [2004] NSWCCA 52 [48]; cf Quinlan v The Queen [2006] NSWCCA 284; (2006) 164 A Crim R 106, 117-18 [21].

[32] Evidence Act 2008 s 59.

[34] See [15] above.

[35] R v Sood [2007] NSWCCA 214 [47].

[36] Jury Directions Act 2015 s 36(2).

[37] R v Dickman [2017] HCA 24; (2017) 91 ALJR 686, 694 [46], 696 [57].

[38] [2011] NSWSC 1657.

[41] IMM v The Queen [(2016) 257 CLR 300, 314-5 [50]].

[42] IMM v The Queen (2016) 257 CLR 300 ('IMM').

[43] Ibid 313 [44] (French CJ, Kiefel, Bell and Keane JJ).

[44] Ibid 313 [45] (French CJ, Kiefel, Bell and Keane JJ).

[45] Ibid 312 [39] (French CJ, Kiefel, Bell and Keane JJ). But the Court added a rider:

There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.

[48] [Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182.]

[50] Criminal Procedure Act 2009 s 300(2)(b)(i).