This matter was dealt with at length under Ground 2. As a matter of law, no corroboration of his evidence was required and, as already noted, having regard to the judge's directions and the addresses of counsel, the jury was undoubtedly aware that Mr Fraser's evidence was uncorroborated. This was a matter for the jury to take into account in assessing the evidence. It did not prevent Mr Fraser's evidence from having appropriate probative weight.
[2]
(ii) He would only give evidence if it was 'a ride for a ride'.
[3]
Mr Fraser conceded in crossexamination that he had told police that he would only help them if they helped him. He said that he had used the expression 'a ride there for a ride back'. He explained that as meaning 'You scratch my back, I'll scratch yours. I've got something you want, you can help me'.
[4]
Mr Fraser was undoubtedly a potentially unreliable witness, for a number of different reasons fully explained by the trial judge to the jury. The jury were well aware that he had a number of possible motives to lie, to which reference has already been made. He was extensively crossexamined as to these motives by senior counsel. The defence case - that there were no admissions made to him by the applicant - was put to him and denied. This matter, again, was before the jury. There is no reason to believe that it was not considered by them in reaching a conclusion that Mr Fraser's evidence was able to be relied upon.
[5]
(iii) A precondition to his making a statement and giving evidence was his early release.
[6]
This argument is, in effect, identical to that under (ii) above. It was fully ventilated in crossexamination and was clearly before the jury.
[7]
(iv) Numerous prior attempts had been made by Mr Fraser to secure his early release before he implicated the applicant.
[8]
Again, these matters - which included identifying corrupt police and giving other assistance - were before the jury and were doubtless considered by them.
[9]
(v) The description of the young Greek man was a key feature of his evidence, but there was no support at all for that evidence despite the police investigation of that claim.
[10]
Again, this is a matter which went significantly to Mr Fraser's credit. It was before the jury. The fact that, notwithstanding these deficiencies in his evidence, the jury accepted that the applicant had made admissions to him does not render the jury verdict unsafe or unsatisfactory. The jury were entitled to accept his evidence nonetheless.
[11]
(vi) Significant inconsistency in his evidence as to his efforts to intercede on behalf of the young Greek man with a prison supervisor.
[12]
The same comments can be made with respect to this matter as under (v) above.
[13]
(vii) His description of the alleged pantomime did not appear until his third statement despite his evidence that it was something that once seen could never be forgotten.
[14]
This matter concerns the demonstration Mr Fraser told the jury the applicant had given him, in silence, as to how he killed the deceased. Again, this was before the jury and was doubtless taken into account by them in deciding to accept Mr Fraser's evidence. It does not compel a reasonable doubt as to his description of the pantomime given in his evidence.
[15]
(viii) His denial of the knowledge of a $1 million reward prior to providing assistance despite receiving The Age on a daily basis.
[16]
Mr Fraser was crossexamined as to this denial. He gave an explanation. It was, essentially, that as a criminal lawyer he did not read 'cops and robbers' in the newspapers. It was a matter for the jury whether that explanation was accepted or not. The point is a very minor one in the overall context of this case.
[17]
(ix) His application for the $1 million reward the day after the applicant was convicted in the first trial.
[18]
Mr Fraser was crossexamined as to this matter. He conceded that his solicitor had made an application for the reward on his behalf the day after the verdict. The matter was before the jury for whatever weight they decided to give it in the overall assessment of Mr Fraser's evidence.
[19]
(x) The fact that subject to his petition of mercy being granted he would not give evidence.
[20]
This raises the same considerations as are applicable to (ii), (iii) and (iv) above. It is clear that the jury had to consider a witness who was severely compromised as far as his credit was concerned. The jury was given adequate directions and reached the verdict they did on the whole of the evidence, which included not only the applicant's admissions to Mr Fraser but also the other evidence implicating him in the murder of Ms Halvagis such as the identification evidence and his lies as to his knowledge of the cemetery.
[21]
(xi) If he did not give evidence he was at risk of reincarceration according to the terms of his petition of mercy.
[22]
Compromised witnesses such as prison informers, accomplices who turn Queen's evidence, witnesses who have been indemnified against prosecution and other potentially unreliable witnesses are not uncommon in criminal trials. Provided the jury is aware of the matters causing them to be compromised and is given appropriate directions (subject to s 165(2) of the Evidence Act 2008) as to their potential unreliability, there is no reason why such evidence cannot be accepted.
[23]
310 The 11 matters listed by the applicant would have given the jury justification for regarding Mr Fraser's evidence with some scepticism. Those matters would have entitled them to disbelieve his evidence. With one exception, however, those matters, whilst relevant to his credit as a witness, were not directly connected to the facts to which Mr Fraser deposed concerning the applicant having made damaging admissions to him. They were principally concerned with the various motives he had to lie, such as obtaining a remission of his sentence or a monetary reward for giving evidence or, in the case of (vi), his consistency with respect to his account of the young Greek prisoner.
[24]
311 Each of these matters was squarely raised for the jury's consideration. Nothing in them required the jury to disbelieve him or, even, for that matter, to have a doubt about the truth of his account.
[25]
312 In a different category, perhaps, was Mr Fraser's account of the confrontation between the applicant and the young unidentified Greek prisoner which, he said, preceded the applicant's first admission to him of having killed Ms Halvagis. Mr Fraser said that the young man, on approaching the applicant, claimed to be a cousin of the deceased young woman. He said he threatened the applicant for having killed Ms Halvagis. The police informant gave evidence that he was unable to identify the young Greek prisoner and that the Halvagis family had told him that there was no relative of theirs in Port Phillip Prison at the relevant time. There was no evidence of any further inquiries being made.
[26]
313 Even then, however, although this evidence may well have caused the jury to doubt Mr Fraser's account, it did not require them to reject it. They may have considered that insufficient inquiries had been made to disbelieve Mr Fraser's account. They were certainly not required to disbelieve it on the evidence before the Court. Ground 4 is rejected.
[27]
314 The application for leave to appeal will be granted, and the appeal dismissed.
[28]
[1] In relation to his first trial and successful appeal against conviction, see R v Dupas (No 3)(2009) 28 VR 380.
[37] See, eg, ibid 453 (Lord Scarman). Lord Scarman referred to the case of Selvey v DPP[1970] AC 304, 341-2 (Viscount Dilhorne), 349 (Lord Hodson), 352 (Lord Guest), 360 (Lord Pearce) in support of this proposition.
[40]McDermott v The King(1948) 76 CLR 511, 515 (Dixon J); see Rosemary Pattenden, 'Judicial Discretion and Criminal Litigation' (Oxford University Press 2nd ed, 1990), 233.
[128] In Aytugrul v The Queen[2012] HCA 15; (2012) 286 ALR 441 it seems to have been accepted that s 137 was based on what the Australian Law Reform Commission called a common law 'discretion to exclude evidence adduced by the prosecution if it is more prejudicial than probative' and that this 'discretion' was discussed in Driscoll v The Queen[1977] HCA 43; (1977) 137 CLR 517, 518-9 (Heydon J). See more generally the discussion by Heydon J as to the nature of the prejudice with which Driscoll was concerned.
[155]Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1963) SC 34, 40 (Lord President Cooper). Cf Dasreef Pty Ltd v Hawchar (2011) CLR 588, 624 (Heydon J).
[167] Gary Edmond, Kristy Martire and Mehera San Roque, ''Mere Guesswork_':_ Cross-Lingual Voice Comparisons and the Jury' (2011) Vol 33(3) Sydney Law Review 395, 420; Tim Smith and Stephen Odgers, 'Determining Probative Value for the Purposes of s 137 in the Uniform Evidence Law' (2010) 34 Crim Law Journal 292.
[141]
[168] Gary Edmond, 'Discretions and Reliability: Reassessing Incriminating Expert Opinion Evidence', UNSW Law Journal Vol 31(1), 29-36, referring particularly to R v Tang[2006] NSWCCA 167; (2006) 65 NSWLR 681; R v Jung[2006] NSWSC 658.
[255] Tim Smith and Stephen Odgers, 'Determining Probative Value for the Purposes of Section 137 in the Uniform Evidence Law' (2010) 34 Crim LJ 292, 297.
[201]
[256] See Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010), 316-7.
[374] See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005), [12.3]; Stephen Odgers, Uniform Evidence Law (Lawbook Co., 6th ed, 2004), [1.3.7640].
[379] Unreported, NSWSC, Hunt CJ at CL, 9 April 1996.
[286]
[380] (2005). The Report was a collaboration by the Australian, New South Wales and Victorian Law Reform Commissions on the review of the operation of the provisions of the Uniform Evidence Acts in force in New South Wales, the Commonwealth, the Australian Capital Territory and Tasmania.
[287]
[381] The amendment was also uniform with amendments contained in a model Uniform Evidence Bill endorsed by the Standing Committee of Attorneys General on 26 July 2007.
[387] (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
[294]
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
[295]
(b) the extent to which to do so would be unfair to a party or to a witness; and
[296]
(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and
[297]
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
CRIMINAL LAW - Appeal - Conviction - Identification evidence - Probative value - Unfair prejudice - Assessment of probative value - Reliability of the evidence - Christie discretion at common law examined - Whether danger that evidence may receive disproportionate weight required exclusion - R v Shamouil[2006] NSWCCA 112; (2006) 66 NSWLR 228 disapproved; R v Carusi(1997) 92 A Crim R 52, DSJ v R[2012] NSWCCA 9 considered - Evidence Act 2008 (Vic) s 137.
The occasion for its exercise would usually be where the weakness of the evidence (and thus its disproportionate prejudice) had not been established in any voire dire examination, although it would not depend upon whether such an examination had been held; or it may arise simply because the judge had altered a conclusion formed upon an earlier objection, although again it would not depend upon whether there had been such an earlier objection. ... In R (at 79-80; 409-10) Gleeson CJ quoted extensively from the judgment of Wilson J in Mezzo[1986] 1 SCR 802 at 818, 820 in which her Ladyship convincingly made good the point that, in determining whether identification evidence should be left to the jury, the test is whether the quality of the evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate caution to the jury. Although that is not the test applied in Australia as to whether there is a case to answer, it appears to me, with respect, to be an admirable one to be applied when considering whether identification evidence should - in the context of the evidence as a whole, be excluded from the evidence or withdrawn from the jury, and to be a test which is consistent with the well known line of authority commencing with Turnbull[1977] QB 224. I would not put it forward as the only test; it is nevertheless a test which is appropriate to the circumstances of this present case. When considering this question, it must be kept in mind that the evidence should not be considered in isolation; what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole: cf Chamberlain (No 2)[1984] HCA 7; (1984) 153 CLR 521 at 535. [92]
The result is that there is always a danger that the jury will give to evidence of an identification from photographs a greater weight than it deserves. When that is added to what has been described as the seductive effect of identification evidence generally the danger of the prejudice to the accused by its admission (for the reasons already outlined) is considerably heightened. Such prejudice can sometimes be lessened (but rarely removed) by appropriate directions to the jury. However, identification evidence (as with any other evidence) is subject to the common law 'Christie' discretion, whereby the trial judge may exclude any evidence where its prejudice to the accused outweighs its probative value. That discretion plays a large part in all identification cases, Alexander v The Queen at 402-403, 417, 430, 435); Regina v R(1989) 18 NSWLR 74 at 76; Doney v The Queen(1990) 171 CLR 205 at 212; Regina v Tugaga(1994) 74 A Crim R 190 at 193-4; Regina v Hewston(1995) 81 A Crim R 387 at 389. A number of cases in which the quality of identification evidence generally has, in the absence of an identification parade, led to a consideration of whether it should be excluded are collected in Regina v Pearsall(1990) 49 A Crim R 439 at 444, and one test as to whether evidence of identification generally should be excluded is whether the quality of that evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate direction or caution to the jury. Scott v The Queen[1989] AC 1242 at 1259; Regina v R (at 79-80); (at 196).
With reference to this question, in AE v R[2008] NSWCCA 52, Bell JA, Hume and Latham JJ, at par[44], said, 'it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence'. PNJ v DPP[2010] VSCA 88 is an authority to the same effect. In that case Maxwell P, Buchanan and Bongiorno JJA, at pars [24] to [29], addressed the proposition that it had been an error for the trial judge to consider the possibility of concoction when deciding whether evidence had significant probative value. They said at par [28],
'It is, in our view, not only appropriate but necessary for a judge to consider whether, on the material before the court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide.'
It is not readily apparent to me why it is not improper to consider the possibility of concoction, a matter that goes to the credibility and reliability of evidence, when assessing its probative value or why, for some other reason, it is proper to do so.[238]
The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v The Queen[1983] HCA 42; (1983) 152 CLR 657, 689. There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict: see, for example, Plomp, at p 246; Reg. v. Prasad(1979) 23 SASR 161, at p 162; Reg. v. R.(1989) 18 NSWLR 74, at p 77. And it may sometimes happen (although it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed: see, as to the discretion to reject technically admissible evidence, R. v. Christie[1914] AC 545, at p 560; Harris v. Director of Public Prosecutions[1952] AC 694, at p 707; Driscoll v. The Queen[1977] HCA 43; (1977) 137 CLR 517, at p 541; Harriman v. The Queen[1989] HCA 50; (1989) 167 CLR 590, at p 619; and, as to the withdrawal of evidence and the subsequent direction of a verdict of not guilty, , at p 76. However, the question raised when, for whatever reason, the evidence will not sustain a verdict of guilty is distinct from that raised in the present case where the evidence of Freeman, if believed, is itself sufficient to sustain the applicant's conviction.
There appear to have been two distinct notions allowing a power to a trial judge to direct a verdict of not guilty other than in circumstances where the evidence will not support a verdict of guilty. The earlier notion, adopted by some judges in Victoria prior to the decision in Attorney-General's Reference (No.1 of 1983)[1983] VicRp 101; (1983) 2 VR 410, was that a verdict of not guilty might be directed if there were but a scintilla of evidence. A more robust view to the effect that a trial judge should stop a trial if, in his or her opinion, a verdict of guilty would be unsafe or unsatisfactory appears to have developed in the United Kingdom following the passage of the Criminal Appeal Act 1966 (UK) which allowed for the setting aside, on appeal, of unsafe or unsatisfactory verdicts: see Reg. v. Falconer-Atlee(1973) 58 Cr App R 348, at p 357, and Reg. v. Mansfield[1977] 1 WLR 1102, at pp 1106-7; [1978] 1 All ER 134, at p 140. The argument that a similar power in the trial judge derives from the common criminal appeal provisions in Australia has been rejected in South Australia in Prasad, in Victoria in Attorney-General's Reference (No.1 of 1983) and in New South Wales in Reg. v. R. The current view in the United Kingdom is stated in Reg. v. Galbraith[1981] 1 WLR 1039, at p 1042; [1981] 2 All ER 1060, at p 1062, in these terms:
'(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.'
It is convenient to approach the argument in the present case by reference to the view enunciated in Galbraith, noting, however, that there is some difficulty in reconciling proposition 2(a) (which has some similarity with the position earlier adopted in Victoria) with proposition 2(b).
The acceptance or rejection of evidence involves an inference as to its truth, which inference is, at least in part, based on 'a principle of faith in human veracity sanctioned by experience': Wigmore, Evidence, vol 1A (1983), p 954, referring to an unverified citation from Starkie's Evidence, (1824). It is usual not to so categorize the inferences involved in the acceptance of direct or testimonial evidence and to treat the process of inference as confined to circumstantial evidence. But it is appropriate here to draw attention to the fact that the drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful. That means that not only is proposition 2(b) in Galbraith correct but, so far as it refers to 'inconsistent' evidence, proposition 2(a) cannot be accepted.
The question whether, in the words used in Galbraith, evidence has a 'tenuous character' or an 'inherent weakness or vagueness' may raise, but is not restricted to, the question whether the evidence is truthful. Quite apart from any question of truthfulness, there may be something in the nature of the evidence that brings its probative value into question so that the trial judge must consider whether some warning should be given. And, as earlier noted, there may be rare cases in which it will be necessary to consider whether, although the evidence was not initially excluded as a matter of discretion, it should be withdrawn from the jury's consideration.
Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury's collective experience of ordinary affairs as is the question whether evidence is truthful. And, of course, the same is necessarily true of evidence that does not require a warning.
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v. The Queen (No.2)[1984] HCA 7; (1984) 153 CLR 521 and Morris v. The Queen[1987] HCA 50; (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v. District Court (N.S.W.)[1989] HCA 46; (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process.[281]