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[2012] VSCA 328
Court of Appeal (Vic)
2012-12-21
Mr J, Maxwell P, Nettle JA, Warren CJ, Redlich JA
Original judgment source is linked above.
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.
(ii) He would only give evidence if it was 'a ride for a ride'.
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'.
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.
(iii) A precondition to his making a statement and giving evidence was his early release.
This argument is, in effect, identical to that under (ii) above. It was fully ventilated in crossexamination and was clearly before the jury.
(iv) Numerous prior attempts had been made by Mr Fraser to secure his early release before he implicated the applicant.
Again, these matters - which included identifying corrupt police and giving other assistance - were before the jury and were doubtless considered by them.
(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.
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.
(vi) Significant inconsistency in his evidence as to his efforts to intercede on behalf of the young Greek man with a prison supervisor.
The same comments can be made with respect to this matter as under (v) above.
(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.
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.
(viii) His denial of the knowledge of a $1 million reward prior to providing assistance despite receiving The Age on a daily basis.
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.
(ix) His application for the $1 million reward the day after the applicant was convicted in the first trial.
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.
(x) The fact that subject to his petition of mercy being granted he would not give evidence.
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.
(xi) If he did not give evidence he was at risk of reincarceration according to the terms of his petition of mercy.
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.
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.
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.
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.
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.
314 The application for leave to appeal will be granted, and the appeal dismissed.
[1] In relation to his first trial and successful appeal against conviction, see R v Dupas (No 3) (2009) 28 VR 380.
[2] [2006] NSWCCA 112; (2006) 66 NSWLR 228 ('Shamouil').
[3] Before the applicant was interviewed about the murder of Margaret Maher.
[4] R v Dupas (No 3) (2009) 28 VR 380.
[7] [2011] VSC 200, [49]-[52].
[9] See Gett v Tabet (2009) 254 ALR 504, 561, 566 [274]-[295].
[10] Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985), [957].
[19] See, for example, R v Eyles (1917) 17 SR (NSW) 377.
[28] [1965] AC 1001, 1024.
[29] [1977] HCA 43; (1977) 137 CLR 517, 541.
[35] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 375 (Deane J); Jago v The District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 56 (Deane J); R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 623 (Deane, Gaudron, McHugh JJ).
[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.
[41] R v Christie [1914] AC 545, 560; Harris v DPP [1952] AC 694, 707; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 541.
[42] Rosemary Pattenden, above n 40, 233; Rupert Cross, 'Discretion and the Law of Evidence: When it Comes to the Forensic Crunch' (1979) 30 Northern Ireland Legal Quarterly 289; Mark Weinberg, 'The Judicial Discretion to Exclude Relevant Evidence', (1975) 21 McGill Law Journal 291.
[47] (1996) 190 CLR 348, 373 (footnotes omitted) (emphasis added).
[49] [1984] VicRp 18; [1984] VR 229, 253.
[50] [1990] VicRp 28; [1990] VR 310, 319.
[53] Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 399, 401-2. See 401 citing Sugerman J in R v Bouquet [1962] SR(NSW) 563.
[54] [1977] 2 NZLR 20, 27.
[56] Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 402-3.
[74] Ibid 615-4 [63]-[65] (footnotes omitted) (emphasis added).
[76] Ibid 643 [166] (emphasis added).
[77] Ibid 644 [169] (footnotes omitted).
[80] [2004] SASC 406; (2004) 151 A Crim R 10, 15-17 (Bleby J with whom Duggan and Anderson JJ agreed).
[81] [2004] SASC 32; (2004) 144 A Crim R 370, 384 (Gray J with whom Doyle CJ and Perry J agreed).
[83] For example, Miller v The Police [2007] SASC 435, [18]-[23] (Gray J); R v Coghlan [2010] SASC 131, [25]-[28] (Vanstone, David and Kelly JJ).
[84] [2001] HCA 72; (2001) 208 CLR 593, 609, 613 and 614.
[87] (Unreported, Court of Criminal Appeal, Supreme Court of New South Wales, Hunt CJ at CL, Allen J and Loveday AJ, 4 November 1993).
[90] Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 402-3, 417, 430, 433, 435.
[91] R v Tugaga (1994) 74 A Crim R 190, 193.
[94] (1997) 92 A Crim R 52 ('Carusi').
[96] (1997) 92 A Crim R 52, 55-6 (emphasis added).
[103] Carusi (1997) 92 A Crim R 52, 65-66 (emphasis added) (footnotes omitted).
[113] Ibid 334-5 [25], [29] (emphasis added).
[114] [1995] VicRp 34; [1995] 1 VR 533 - see further [124] below ('Rozenes').
[121] [2007] VSC 295, [75].
[125] Ibid 382-3. For further examples see R v Williams [2010] VSC 34, [20]-[24]; R v Bahmert [2010] VSC 77, [19]; R v Anyang [2011] VSC 38.
[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.
[129] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 542.
[133] [1946] HCA 55; (1946) 73 CLR 316, 333.
[134] [1962] HCA 49; (1962) 108 CLR 591, 596.
[135] Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985), Appendix C, Chapter 8 [143].
[136] R v Scripps [1978] Tas SR 209, 210.
[137] [1998] HCA 1; (1998) 192 CLR 159, 189, 192-3.
[138] Ibid 182-3 (Brennan CJ); 189-90 [38] (Toohey, Gaudron, Gummow JJ).
[140] [1989] HCA 1; (1994) 180 CLR 508, 526-7.
[147] Rosemary Pattenden, above n 40, 233.
[148] [1995] VicRp 34; [1995] 1 VR 533, 551.
[150] R v Elliott (Unreported, Supreme Court of NSW, Hunt J, 6 April 1990); R v Lucas [1992] VicRp 56; [1992] 2 VR 109 (Hampel J); R v Green (1992) NSWCCA 10 (Unreported, Supreme Court of NSW, Court of Criminal Appeal, Gleeson CJ, Cripps JA and Abadee J, 26 March 1993); R v Pantoja (1996) 88 A Crim R 554 (Hunt CJ at CL, with whom Hidden J agreed).
[151] [1989] HCA 28; (1989) 167 CLR 94, 131.
[152] Osland v The Queen (1998) 197 CR 316, 336 (Gaudron and Gummow JJ); HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, 432; Velevski v R [2002] HCA 4; (2002) 187 ALR 233, 253.
[153] Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 729-30.
[154] R v Ferguson, Sadler and Cox [2009] VSCA 141; (2009) 24 VR 510, 548 [61] (Maxwell P, Buchanan and Weinberg JJA).
[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).
[158] R v Gilmore [1977] 2 NSWLR 935 (Street CJ, Lee and Ash JJ agreeing); R v Bonython (1984) 38 SASR 45 (King CJ, Bollen J agreeing); R v Carroll (1985) 19 A Crim R 410 (Kneipp J, with whom Campbell CJ agreed); Lewis v The Queen [1987] NTCCA 3; (1987) 88 FLR 104 (Maurice J and Muirhead AJ); R v Jarrett [1994] SASC 4596; (1994) 62 SASR 443.
[159] (Unreported, Supreme Court of NSW Criminal Division, 6 April 1990).
[161] Gary Edmond_,_ 'A Specialised Knowledge, The Exclusionary Discretions and Reliability', (2008) 31(1) UNSWLJ 11.
[165] Nguyen v The Queen [2002] WASCA 181; (2002) 131 A Crim R 341.
[166] Korgbara v The Queen [2007] NSWCCA 84; (2007) 71 NSWLR 187.
[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.
[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.
[171] [1989] HCA 50; (1989) 167 CLR 590, 619 (Gaudron J).
[173] Ibid 481 (Mason CJ, Deane and Dawson JJ).
[174] Ibid; see also Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292.
[177] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 515.
[182] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, 355.
[186] CW v The Queen [2010] VSCA 288, [27].
[187] Dupas v The Queen (No 2) [2005] VSCA 212; (2005) 12 VR 601, 624, 626 (Nettle JA).
[191] Dupas v The Queen (No 2) [2005] VSCA 212; (2005) 12 VR 601, 626.
[192] [2003] NSWCCA 319; (2003) 58 NSWLR 700, 715-8.
[195] R v Lobban [2000] SASC 48; (2000) 77 SASR 24, 45; Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 549.
[197] [1999] HCA 37; (1999) 196 CLR 297, 323.
[198] Australian Law Reform Commission, Evidence, Report No 38 (1987) [146].
[199] R v Christie [1914] AC 545, 599; Noor Mohamed v The King [1949] AC 182, 192; Harris v DPP [1952] AC 694, 707.
[200] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 487-8.
[201] R v Doyle [1967] VicRp 82; [1967] VR 698 (Sholl, Pape and Adam JJ).
[202] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 602-3 (Gleeson CJ).
[203] See Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461; R v Lam (Ruling No 4) [2005] VSC 278, [3] (Redlich J).
[204] [2010] VSCA 289, [62].
[206] Sir James Stephen, A Digest of the Laws of Evidence (Macmillan, 12th ed, 1936) 1.
[207] Sections 135-137 of the Evidence Act 2008.
[208] R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182, 199 (Wood CJ at CL, Sully and Howie JJ concurring); R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317, 324 (Mason P).
[209] Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 319 (Gibbs CJ); Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 587 (Deane J), 599 (Dawson and Gaudron JJ), 605 (Toohey J), 614 (McHugh J).
[210] Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 550.
[213] (1996) 89 A Crim R 457, 459.
[217] Australian Law Reform Commission, Evidence, Report No 38, (1987), [146].
[221] [2004] NSWCCA 233 ('Rahme').
[225] [1997] NSWSC 4, [65]-[66].
[226] [2004] NSWCCA 233, [203].
[227] [2006] NSWCCA 112; (2006) 66 NSWLR 228, 236 [54]-[55].
[230] FCT v Citibank Ltd (1989) 20 FCR 403, 433 (French J); Bropho v State of WA [1990] HCA 24; (1990) 171 CLR 1, 18; Coco v R [1994] HCA 15; (1994) 179 CLR 427, 437; Balog v ICAC [1990] HCA 28; (1990) 169 CLR 625, 635.
[239] R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311 [139] (Simpson J); R v Fletcher [2005] NSWCCA 338, [48] (Simpson J).
[241] R v Zhang [2005] NSWCCA 437, [139].
[249] Ibid [132]. Compare the observations of the High Court in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214-15 ('Doney').
[250] DSJ v R [2012] NSWCCA 9 [66] (Whealy JA).
[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.
[256] See Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010), 316-7.
[257] R v BD (1997) 94 A Crim R 131, 139, 151; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91] (McHugh J); R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 (Mason P).
[258] Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005), [16.45].
[259] See R v Darmody ([2010] VSCA 41; 2010) 25 VR 209; DPP (NSW) v JG [2010] NSWCCA 222 [121] (Basten JA).
[260] Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985), [957]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 (Gleeson CJ).
[263] Shamouil (2006) 66 NSWLR 728, 239 [77].
[264] (1997) A Crim R 414, 428.
[265] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 528.
[266] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, 355 [14] (Gleeson CJ).
[267] Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985), Vol 1, [957].
[268] Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) [16.47].
[269] Ibid [16.11], [16.14], [16.24].
[272] See Dupas No 2 [2005] VSCA 212; (2005) 12 VR 601, 627, [82]-[83].
[273] L'Estrange v The Queen [2011] NSWCCA 89; Wood v The Queen [2012] NSWCCA 21, [412]; R v Coe [2002] NSWCCA 385.
[274] R v Nelson [1999] NSWCCA 221; R v Marshall [2000] NSWCCA 210; (2000) 113 A Crim R 190, 192; R v Fisher [2001] NSWCCA 380.
[275] R v Folli [2000] NSWCCA 460, [9] (Giles JA).
[276] [2000] NSWCCA 185, [20] [36]-[37].
[277] [2010] SASCFC 80, [117].
[278] [1990] HCA 51; (1990) 171 CLR 207, 215.
[281] Doney [1990] HCA 51; (1990) 171 CLR 207, 212-15 [11]-[18].
[282] R v Galbraith [1981] 1 WLR 1039, 1042; Doney [1990] HCA 51; (1990) 171 CLR 207, 215 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); Attorney-General's Reference No 1 of 1983 [1983] VicRp 101; [1983] 2 VR 410, 413, 417.
[283] Jayasena [1970] AC 618, 624; Doney [1990] HCA 51; (1990) 171 CLR 207, 214-5.
[287] [2004] NSWCCA 233, [201]-[202].
[288] (1997) 92 A Crim R 397, 403.
[289] [2002] NSWCCA 520, [255]-[256].
[292] [2004] NSWCCA 233, [201]-[202].
[303] [2004] NSWCCA 52, [43].
[304] [2006] NSWCCA 112, [63].
[305] [2012] NSWCCA 9 ('DSJ').
[306] Citing Shamouil, PG v R, KMJ v Tasmania and DSJ [2012] NSWCCA 9; (2012) 259 FLR 262.
[307] [2010] NSWCCA 222, [74].
[312] Ibid 264 [8] (with whom the President and McCallum J agreed).
[328] Ibid [80]-[81] (footnotes omitted).
[335] [1993] HCA 15; (1993) 177 CLR 485, 492.
[337] See DPP v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300, [111]-[117].
[342] Keith Mason, 'The distinctiveness and independence of intermediate courts of appeal' (2012) 86(5) Australian Law Journal 308, 319.
[343] R v BDX [2009] VSCA 28; (2009) 24 VR 288, 310 [122] (Vincent and Weinberg JJA).
[344] R v Rousetty [2008] VSCA 259; (2008) 24 VR 253, 279 [57] (Ashley JA).
[345] [1990] HCA 9; (1990) 169 CLR 245, 269.
[347] See Ying v Song [2009] NSWSC 1344, [17]-[21] (Ward J).
[348] See Gett v Tabet (2009) 254 ALR 504 [274]-[295].
[350] [1977] HCA 43; (1977) 137 CLR 517, 541.
[352] [1989] AC 1242, 1256-1257.
[356] (2009) 28 VR 380, 447 [264]-[265].
[357] R v Dupas [2011] VSC 200, [50]-[51].
[361] R v Dupas [2011] VSC 180, [13].
[363] [2000] NSWCCA 388; (2000) 116 A Crim 1 (see paragraph [278] below).
[364] R v Dupas [2011] VSC 200, [21]-[27].
[365] Sections 55 and 56 of the Evidence Act.
[366] [2012] VSCA 321, [67].
[367] See, eg, Douglass v The Queen [2012] HCA 34.
[368] R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284, [332] (Mason P, Wood CJ and Sully J).
[369] [2008] NSWCCA 264; (2008) 190 A Crim R 454 ('Peacock'), followed in RGM v The Queen [2012] NSWCA 89, [73]-[74].
[370] [2008] NSWCCA 264; (2008) 190 A Crim R 454, 465 [57].
[372] [2012] NSWCCA 89, [72]-[73]
[373] Dictionary of the Evidence Act 2008 (Vic) (emphasis added).
[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].
[378] [2004] NSWCCA 7 [332].
[379] Unreported, NSWSC, Hunt CJ at CL, 9 April 1996.
[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.
[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.
[382] Erwin v Vergara [2012] FCA 1240 [8] (Bromberg J); Harris v Bellemore [2009] NSWSC 1496, [12]-[13]; Australia Bank v Caporale [2012] NSWSC 509, [12] (Schmidt J).
[384] R v WR [2010] ACTSC 89, [30]-[33] (Refshauge J).
[385] DPP (NSW) v J G [2010] NSWCCA 222, [124] (Basten JA) [160] (RS Hulme J).
[386] See Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954, 973 [114].
[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:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b) the extent to which to do so would be unfair to a party or to a witness; and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and
(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.
[390] See _H G v The Quee_n [1999] HCA 2; (1999) 197 CLR 414, [41] (Gleeson CJ).
[392] [1992] HCA 35; (1992) 174 CLR 558 ('Pollitt').
[393] [2006] NSWCCA 109, [217] (Hunt AJA, Buddin and Hoeben JJ) ('Kanaan').
[394] (2002) 209 CLR 203, 224 (Gaudron ACJ, McHugh, Hayne and Callinan JJ).
[398] [2007] HCA 30; (2007) 230 CLR 559, 596-7 (citations omitted) (emphasis in original).
[399] Jones v The Queen (1997) 191 CLR 439; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; R v Shueard (1972) 4 SASR 36; R v Berry [2007] VSCA 202; (2007) 17 VR 153.
Dupas
The Queen [2012] VSCA 328
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.
EVIDENCE - Prison informer - Whether corroboration required - Whether Pollitt direction adequate - Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 considered - Evidence Act 2008 (Vic) ss 164, 165.
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.
(1984) 153 CLR 521
(1989) 18 NSWLR 74
(1983) 152 CLR 657
(1979) 23 SASR 161
(1977) 137 CLR 517
(1983) 2 VR 410
(2007) 230 CLR 559
(1997) 191 CLR 439
(2007) 17 VR 153
(2006) 66 NSWLR 228
(1992) 174 CLR 558
(1990) 171 CLR 205
(1989) 167 CLR 590
(1987) 163 CLR 454
(1989) 168 CLR 23
(2009) 28 VR 380
(1992) 173 CLR 555
(2009) 254 ALR 504
(1978) 141 CLR 54
(1981) 145 CLR 395
(1982) 151 CLR 1
(1990) 171 CLR 207
(1988) 164 CLR 365
(1992) 173 CLR 592
(1992) 177 CLR 292
(1948) 76 CLR 511
(1985) 159 CLR 45
(1996) 190 CLR 348
(1937) 57 CLR 170
(1979) 39 FLR 315
(2001) 208 CLR 593
(2001) 4 VR 79
(1985) 42 SASR 126
(1948) 76 CLR 501
(1950) 82 CLR 133
(1981) 147 CLR 512
(1993) 113 ALR 1
(2001) 206 CLR 650
(1996) 185 CLR 375
(2012) 286 ALR 441
(1985) 156 CLR 664
(1946) 73 CLR 316
(1962) 108 CLR 591
(1998) 192 CLR 159
(1994) 180 CLR 508
(2000) 77 SASR 24
(1989) 167 CLR 94
(1999) 197 CLR 414
(2002) 187 ALR 233
(2001) 52 NSWLR 705
(2009) 24 VR 510
(1984) 38 SASR 45
(1987) 88 FLR 104
(1994) 62 SASR 443
(2005) 218 ALR 764
(2007) 71 NSWLR 187
(2006) 65 NSWLR 681
(1995) 182 CLR 461
(1988) 165 CLR 292
(2008) 235 CLR 334
(2006) 225 CLR 303
(2005) 12 VR 601
(2003) 58 NSWLR 700
(1999) 196 CLR 297
(2002) 56 NSWLR 182
(2001) 53 NSWLR 317
(1986) 161 CLR 315
(2001) 207 CLR 96
(1989) 20 FCR 403
(1990) 171 CLR 1
(1994) 179 CLR 427
(1990) 169 CLR 625
(2010) 27 VR 146
(2005) 227 ALR 311
(2011) 278 ALR 765
(2006) 66 NSWLR 728
(2012) 259 FLR 262
(2011) 31 VR 203
(1993) 177 CLR 485
(2007) 230 CLR 89
(2009) 24 VR 288
(2008) 24 VR 253
(1990) 169 CLR 245
(1992) 26 NSWLR 450
(2004) 59 NSWLR 284
(1998) 193 CLR 1
(2012) 86 ALJR 954
(2002) 209 CLR 203
(1994) 181 CLR 487
(2002) 213 CLR 606
(1972) 4 SASR 36
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]