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[2006] VSC 233
Supreme Court of Victoria
2006-06-30
KAYE J
Original judgment source is linked above.
CRIMINAL LAW - Prosecution witnesses - Faure directions - Corroboration - Identification (recognition) evidence - Direction - Propensity direction.
Faure directions to jury
1 The evidence in this trial has completed. I have raised with counsel the question whether I should give specific directions to the jury concerning the witnesses Duy Le, Loan Tran and Kenneth Lai.
2 It is common ground between the parties that a special direction should be given by me in relation to Duy Le and Loan Tran in accordance with the principles considered by the Court of Criminal Appeal in It has also been submitted on behalf of both accused that I should give a similar direction in relation to Kenneth Lai. In addition Mr Young, on behalf of the accused man Stephen Cox, has submitted that I should give an "identification" warning in respect of an aspect of Lai's evidence which relates to his client.
Legal principles
3 In the recently completed trial of the related matter of R v Ferguson, [2] I considered the principles which should apply in relation to giving a "Faure" direction in respect of Duy Le, Loan Tran and Kenneth Lai. It is not necessary for me to repeat those principles in detail. They are conveniently summarised in the judgment of Callaway JA in R v Weiss.[3] In essence, such a direction should only be given where the factors, which make the evidence of the particular witness potentially unreliable, are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, in the absence of a specific direction given with the weight of judicial office.[4] In Weiss, Callaway JA cautioned that such a warning should not be given unless it is necessary, otherwise the trial judge would intrude on the exclusive domain of the jury as the sole judges of the facts.
Duy Le
4 In the Ferguson trial I gave the jury a Faure direction concerning Duy Le on two bases. The first basis concerned Duy Le's role as an informer to the Ceja Taskforce. Duy Le was under arrest at the time he was interviewed by the Ceja Taskforce in December 2002, having earlier failed to answer his bail and appear in Court on two serious matters. During the previous three years he had been significantly involved in drug trafficking activities. Accordingly he stood to gain a substantial benefit for himself by assisting the Ceja investigators in their enquiries into the Drug Squad. In those circumstances he had a motive to tell untruths to help himself, even if, by doing so, he were to falsely implicate the innocent in his criminality. The second basis arose out of a combination of matters relating to Duy Le's background. Although those matters concerned Duy Le's credit, nonetheless the combined force of them was such that, in the exceptional circumstances of that case, I considered it necessary to give a specific direction to the jury, so that the jury should fully appreciate the potential combined effect which those circumstances might have on the reliability of Duy Le as a witness.
5 In the present case, the same factors have been elicited in the course of evidence. Accordingly it is appropriate that I give the jury a Faure direction in relation to Duy Le on the two bases on which I gave it in the Ferguson trial. There are some matters of detail which are different or additional to the evidence which were called in Ferguson's trial, and which I shall add to the direction. However, by and large, the direction will be in the same form as that which I gave in the Ferguson trial.
Loan Tran
6 In the Ferguson trial, I concluded, with some hesitation, that it was necessary to give a Faure direction in relation to Loan Tran. My principal concern was that Loan Tran, a significant witness in the trial, was in a substantially compromised position when spoken to by the Ceja Taskforce in December 2002. She understood then that she could be in trouble. Accordingly she had a motive to attempt to protect her own position by giving false or misleading evidence relating to other persons.
7 The same factors which lead me to give a Faure direction in respect of Loan Tran in Ferguson's case are present in this case. Indeed a number of matters have emerged in evidence in this case which point more strongly to the need to give such a direction than they did in Ferguson's trial. In particular, there is stronger evidence implicating Loan Tran, to some extent at least, in Duy Le's drug trafficking activities. There is evidence that she kept some of Duy Le's drug money in a safe in her parents' home. She was present when Duy Le sold drugs to Philip Yong. She was also present in a motel room in January 1999 which Duy Le was then using as a base to traffick drugs in the Clayton area. Accordingly I intend to give the jury a direction that Loan Tran was a person who could be motivated by a concern to protect her position by giving false or misleading evidence and, if necessary, by implicating others in order to protect herself.
Kenneth Lai - Faure direction
8 I turn to the question whether I should give a Faure direction in relation to the evidence of Kenneth Lai. In the Ferguson trial I concluded that such a direction was neither warranted nor necessary. The relevant matters which had been raised by counsel for the defence in that case were essentially matters of credit, which the jury could readily appreciate without being given any specific judicial direction as to their effect.
9 It is common ground between the parties that the evidence of Lai is substantially more significant in this case than in the Ferguson trial. Lai's evidence was that after his arrest for drug trafficking in April 1999, he was recruited as an informer to the Drug Squad. Shortly thereafter, he alleged, Cox and Sadler made a corrupt approach to him to traffick heroin on their behalf. There was no evidence that Ferguson participated in or knew of the approach by Cox and Sadler to Lai. In the Ferguson trial Lai's evidence was relevant only to the background to the conspiracy. If that evidence was accepted, it marked the commencement of the conspiracy, at least between Cox and Sadler. For that reason it was apposite for the Crown prosecutor, in that case, to describe his evidence as being of minor significance. By contrast, in this case, the evidence of Lai relates directly to the involvement of Cox and Sadler in the alleged conspiracy. Although the Crown case relies principally on the evidence of Duy Le, nonetheless, if the jury accept the evidence of Lai, then it would be entitled to conclude that the conspiracy had commenced, at least between Cox and Sadler, before the alleged corrupt approach by Cox to Duy Le in August 1999. Clearly the evidence of Lai occupies a more prominent position in the present trial than it did in Ferguson's trial. Indeed its relative significance in the two trials is reflected in a comparison of the time taken on Lai's evidence in the two trials. In the Ferguson trial, his evidence in chief lasted 30 minutes (and occupied 11 pages of the transcript), and he was cross-examined for 40 minutes (14 pages of the transcript). By contrast, in the present trial, Lai's evidence in chief lasted one and a half hours minutes (31 pages of the transcript), and he was cross-examined for one and a half days (200 pages of the transcript).
10 There are, I consider, three principal considerations which are relevant to the question whether I should give a Faure direction in this trial in respect of the evidence of Lai.
11 The first matter relates to Lai's role in providing information to Ceja, which was the basis of his evidence in the trial. In early 2001 Lai was sentenced on a charge of trafficking heroin to a term of imprisonment of 32 months. He was released on parole in September 2002. In July 2003 he was interviewed by Ceja investigators. He subsequently breached his parole and became liable to be reclaimed by the Parole Board. In December 2003 he made an "induced" statement to the Ceja investigators. That statement commenced by reciting (inter alia) that the information which Lai provided would not be used in any civil or criminal proceedings against him, and that Lai provided the information on the basis that any assistance which he gave would be brought to the attention of Community Corrections in relation to the proceedings which were then pending against him.
12 The second relevant matter arises from the evidence concerning Lai's role as an informer to the Asian Squad in 1999, and concerning his own level of involvement in drug trafficking and related criminal activities. In January 1999 Lai was arrested by Richmond Police on charges of going equipped to steal. While he was at the Richmond Police Station he was spoken to by Detective Senior Constable Blakeley of the Asian Squad in relation to an aggravated burglary which had occurred in Springvale in October 1998. Over the ensuing three days Lai provided detailed information to Blakeley about drug trafficking and associated criminal activity in the Asian community. In giving that information Lai disclosed that he himself had been significantly connected with, and had participated in activities of, organised criminal groups relating to illegal drug trafficking and associated offences. No explanation was given by Lai or Blakeley why he gave that detailed information to Blakeley in early 1999. However on that occasion clearly Lai was providing that information to Mr Blakeley in the capacity of an unregistered informer to the Asian Squad. As I have stated, that information revealed that Lai had been, for some time, connected with organised crime involving the trafficking of substantial quantities of illegal drugs.
13 The third matter concerns Lai's role as an informer to the Drug Squad in the earlier part of 1999. In July 1999 Lai appeared in the County Court on the drug trafficking charges for which he had been arrested by the Drug Squad. He also faced charges in the Magistrates' Court arising from his arrest by Richmond Police in January 1999. He did not receive any assistance from the Drug Squad when he was before the Courts for sentencing on either of those two matters. In cross-examination he agreed that he then felt that the police had dropped him "like a hot cake" and had done nothing to assist him, notwithstanding that, by informing on Duy Le to the Drug Squad, Lai had burnt his credibility within the drug trafficking community.
14 The question is whether those matters require me to give a direction to the jury that they should consider it dangerous to rely on Lai's evidence in the absence of corroboration. The issue is not clear cut. Each of the three matters to which I have referred are, individually, matters which could be well understood by the jury. However, I am of the opinion that the combined force of them is such that the jury should approach the evidence of Lai with particular caution. I do have some concerns whether the jury would fully appreciate the combined effect of those considerations in the absence of an appropriate judicial direction.
15 Lai has twice before acted as an informer to the police, on each occasion providing information in respect of the drug trafficking activities and related conduct of people with whom he has been associated. Thus at the time he provided information to Ceja in 2003, he was well versed in the processes of informing, and was conversant with the benefits to be derived from doing so. In addition, Lai's background reveals that he has been involved in serious organised crime involving the trafficking of drugs. He has a number of previous convictions including convictions for blackmail. Lai's background and antecedents gives point to the testimony of Superintendent Biggin as to the treacherous nature of criminal informers. When Lai made his statement to the Ceja Task Force investigators, he was then in jeopardy because he had breached the terms of his parole. He had a potential motive to ingratiate himself to Ceja and, if necessary, to do so by making false accusations against the police with whom he had been dealing, namely Cox and Sadler. In addition, he had a reason to feel ill-disposed towards those two policemen, because of their failure to support him when he was before the courts in mid-1999 for sentencing on the Drug Squad charges and on the charges brought by the Richmond Police. The combined effect of those matters is, in my view, that it would be dangerous for the jury to rely on the evidence of Lai, in the absence of evidence which, in a material respect, corroborates his evidence.[5] Furthermore, in my view, considered together, those factors are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, in the absence of a warning emanating from me as trial judge with the weight of my judicial office.[6] It is one matter for the jury to appreciate that those factors, separately and collectively, adversely affect the credit of Lai. It is another matter for the jury to consider that their combined effect is such that they should regard it dangerous to rely on Lai's testimony in the absence of evidence which corroborates it in a material respect. In those circumstances I consider that I ought, in the interests of justice, to give a Faure direction to the jury in relation to Lai's evidence.
Lai's evidence - identification warning
16 Mr Young has also submitted that I should give the jury a specific warning, of the type referred to by the High Court in Domican v R,[7] in relation to Lai's evidence that Cox was one of the two policemen who made corrupt overtures to him shortly after his arrest in 1999.
17 Mr Brown, for the Crown, did not oppose the giving of such a warning. However he submitted that it should be a limited warning, tailored to the precise issue raised on behalf of Mr Cox on this aspect of the case.
18 Lai's evidence was that shortly after his arrest, Cox and Sadler visited him in the Melbourne Custody Centre. They spoke to him about whether he could provide information on other drug dealers. In cross-examination Lai stated that he did not previously know either of those policemen. Shortly after that approach Lai was released on bail. Cox and Sadler drove him to the St Kilda Road Police Complex where they had further discussions on how Lai could assist them. In the ensuing weeks Lai provided information to Cox and Sadler in relation to Duy Le. Lai cooperated with Cox and Sadler by twice purchasing quantities of heroin from Duy Le, which he then provided to the Drug Squad for analysis at the same time. Lai introduced an undercover Vietnamese police officer to Duy Le. Ultimately that process led to the arrest of Duy Le.
19 Lai also stated that Cox and Sadler visited him at his house on several occasions. On some of those occasions they noticed that he had some drugs there. It was during that period that, according to Lai, Cox and Sadler made a corrupt approach to him to sell heroin on their behalf. When Lai refused, Cox and Sadler took him on a drive to the Dandenong area, where they tried to intimidate him to cooperate with them.
20 A large part of the cross-examination of Lai concerned matters relating to his credit and to the truth of his allegations against Cox and Sadler. However Mr Young also cross-examined Lai with a view to demonstrating that he may have been in error in stating that Cox was the member of the Drug Squad who was with Sadler at the time that the corrupt approaches were made to him. In cross-examination Lai stated that he always saw Cox and Sadler together. He stated that there were no occasions when Sadler came to his apartment in the company of another police officer who was not Cox, but he said he was not one hundred percent sure about that.[8] He further stated that when the Ceja investigators spoke to him in 2003, they told him that his previous records disclosed that the only Drug Squad members with whom he had been in contact were Cox and Sadler.[9] He was not then shown photographs to assist him to recognise the members of the Drug Squad with whom he had contact in 1999. He further stated that he did not know what Ferguson looked like and did not know him. Later in his cross-examination he stated that on each occasion referred to in his statement to Ceja he said that he met with Cox and Sadler, but that apart from that there may have been other instances when Sadler came to his apartment with Ferguson and not Cox. He then stated that he did not recall Ferguson.[10]
21 Where an issue of identification represents a significant part of the Crown case, the judge must warn the jury as to the dangers of convicting on the basis of such evidence where the reliability of that evidence is in dispute. In Domican v R[11] the High Court stated:
" ... the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have thought obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case'; Smith v The Queen (1990) 64 ALJR 588 at 588. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'; Kelleher v The Queen (1974) 131 CLR at 551. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
22 The evidence of Lai which is in question may be described as "recognition" evidence rather than "identification" evidence. At the time of the first corrupt approach alleged by Lai, he already knew Cox, albeit that he had only become recently acquainted with Cox. The description of the evidence as "recognition" rather than "identification" evidence does not resolve the question whether I should give a direction in respect of it to the jury. Rather, that description assists in pointing to the nature of the issues which need to be taken into account in determining whether such a direction should be given. Commonly, a warning is given to juries where the witness did not previously know the accused, and then later identifies the accused (at an identification parade, by means of a photo board, or the like) as the person who the witness saw on the day in question. The potential for error in such a process is self evident. Mistakes can and do occur in observation, memory and recall. The law has long experience of such errors occurring, and which have resulted in unjust convictions. The potential for injustice arises because juries may not have the same appreciation of the frailty of the human powers of observation, memory and recall. It is for that reason that trial judges are required to give a specific warning to the jury concerning the inherent risks in such evidence.[12]
23 It is clear that similar errors may also occur where the witness is already acquainted with the accused. The authorities on this question make it clear that, in a case such as this, much depends upon the particular circumstances of the case, and upon the precise issues which have been raised in the course of evidence. Notwithstanding that the witness making the identification previously knew or had met the accused, a specific warning may nevertheless need to be given to the jury if, on the issues raised in the case, there is a real question as to the accuracy or reliability of the witness's powers of observation, recognition, or recall.[13]
24 In R v Boardman[14] the accused was charged with the robbery of one Crick at a hotel in Elizabeth Street, Melbourne on 3 December 1967. Three days earlier the accused and another man had gone to the hotel. The accused used the name "Noakes". There they spoke to Crick, who was the night porter, and signed the register. The robbery occurred when two men entered the hotel with an imitation pistol and robbed Crick of some money. In his evidence Crick stated that while the robbery was occurring he thought he recognised one of the men. After they had left, he rang the police. While he was waiting for the police, he checked the books and then called to mind that the man, who he thought he had identified, was "Noakes". The trial judge did not give a specific direction to the jury concerning the evidence of Crick identifying "Noakes" (that is the accused) as one of the two robbers. The accused was convicted. The Full Court of the Supreme Court of Victoria (Gillard J dissenting) held that the trial judge erred in not giving such a warning, in light of the importance of the evidence of identification by Crick of the accused as one of the two men who robbed him. Winneke CJ, who delivered the leading judgment, noted that there was potential for error in the identification evidence of Crick. First, Crick was not positive as to the identification of the accused at the time of the robbery. Secondly, the use by the robber of the name of his associate in the course of the robbery might have affected Crick's recognition of the person who he was then observing. Thirdly, there were flaws in the later identification parade at which Crick identified the accused, such that Crick could well have been identifying not so much the person who robbed him, but the person who he saw three days earlier. Referring to an unreported decision in R v Richards[15] Winneke CJ stated:
"In my opinion the decision of the Court in that case illustrates the principle that should be applied to the present, namely, that if there were dangers of misidentification lurking in the evidence given by the identifying witness, then a warning or caution appropriate to the circumstances of the case was called for."[16]
In the absence of that direction, the majority of the Full Court held that there had been a mistrial of the accused.
25 Boardman's case was followed by the Court of Criminal Appeal of Tasmania in R v Carr.[17] In that case the appellant was tried, in 2000, for a robbery on a supermarket committed in June 1991. The Crown alleged that the appellant, and two other men, including one Paget, committed the robbery. Paget gave evidence against the appellant. Another witness, Ms West, gave evidence that shortly after the robbery Paget and a person she recognised as the appellant came to her home. West had only met Carr once before that night, but he had also been pointed out to her several times by a man she used to live with. In cross-examination she admitted a previous statement by her in which she had claimed not to have previously known the appellant. The trial judge did not give a specific warning to the jury about the evidence. The appellant was convicted. On appeal, the Court of Criminal Appeal held that the trial judge erred in failing to give the jury a Domican warning in respect of the evidence of Ms West. Blow J, who delivered the leading judgment, stated:
"As Boardman and Turnbull illustrate, 'recognition' cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that such a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime. In this case, if Ms West was to be believed, she had ample opportunity to observe the man who accompanied Mr Paget to her house, but there were other circumstances that called for a Domican warning, namely (a) the limited degree of contact she claimed to have had with the appellant in the past; (b) her inconsistent statements as to her knowledge of him and ability to recognise him; (c) the possibility that she could have been misled by Mr Paget introducing his companion to her by the appellant's name; and (d) the delay of nine years between the crime and the trial. The learned trial judge adverted to the possibility of someone having been wrongly introduced by the appellant's name, and to the possibility of incorrect identification. Ideally, I think he should also have warned the jury in general terms of the dangers of convicting on identification evidence whose reliability was disputed and, whilst discussing the identification issue, referred to the limited contact Ms West claimed previously to have had with the accused and to the delay between the night of the robbery and the trial. I believe his Honour's directions as to identification were inadequate as a result of these matters not having been mentioned, but I would not regard these omissions as sufficient, by themselves, to warrant the quashing of the conviction."[18]
26 On the other hand, there are cases where, in light of the evidence and the issues, a Domican warning would be unnecessary, and indeed counterproductive, in respect of evidence which might be described as "recognition" evidence. In R v Matteo,[19] the three witnesses who identified the accused were thoroughly familiar with him. The issue at trial was not whether they might have been mistaken in their identification, but rather whether they were telling deliberate lies. In those circumstances the Court of Appeal held that the trial judge was correct in not giving a Domican warning to the jury. Such a direction would have run counter to, and undermined, the case made by the accused at his trial.[20]
27 In R v Spero[21] the issue was whether it was the accused who had assaulted and raped the elderly complainant. The accused was well known to the complainant. At the time of the assault the complainant had a substantial opportunity to accurately observe the person who she said was the accused. Accordingly the Court of Appeal held that it was not necessary for the trial judge to have given the jury a Domican ruling.[22] In Smith v. Western Australia,[23] the issue was also whether it was the accused who had, some years earlier, indecently assaulted the complainant. The incidents were said to have occurred at the home of two witnesses, Mr and Mrs DC. They both knew the accused reasonably well and gave evidence that it was the accused who had, from time to time, stayed overnight at their home. They identified the accused from a photoboard shown to them by the investigating police. However, the issue at trial was not whether Mr and Mrs DC had falsely identified the accused as the person who stayed overnight at their home on a number of occasions. Rather the issue was whether the person, so identified, had been at their house and stayed overnight on the occasion when the offences were said to have been committed. For that reason the Court of Criminal Appeal of Western Australia held that the trial judge did not err in declining to give a Domican warning to the jury.[24]
28 The effect of the authorities to which I have referred is that an appropriate warning may need to be given to the jury where, on the facts of the case, a real issue is raised as to the reliability of one or more of the processes of observation, recognition, memory or recall, involved in the evidence of a witness claiming to have recognised the accused as the person observed by the witness on the occasion in question. The question whether such a warning is required depends on the particular circumstances of the case and on the precise issues which arise concerning the "recognition" evidence. In both Boardman and Carr, each witness had some previous familiarity with the accused person at the time the witness observed the person identified by him or her as the accused. In each case the witness had a reasonable opportunity to observe the person who the witness said was the accused. Nevertheless, in each case, the court held that a specific warning should have been given to the jury as to the dangers in the evidence of the witness that it was the accused who had been observed and recognised by him or her on the relevant occasion. In both cases, it seems, the courts perceived the potential for error at two stages of the relevant witness' cognitive processes. First, in each case, there was some potential for error in the recognition by the witness of the accused, in light of the witness' limited previous acquaintance with the accused, and in light of the potential for other circumstances to have then wrongly suggested to the witness that the person observed was the accused. Secondly, in both cases, there was seen to be a potential for error in the later recollection by the witness that he or she had indeed recognised the accused as the person observed on the relevant occasion.[25] In Boardman, Winneke CJ was concerned that the identification parade may have led the witness to have identified the accused not so much as the person who robbed him, but as a person who he saw three days before the robbery. In Carr, the lengthy intervening period may have distorted the recollection of the witness that it was the accused who she saw in the company of Paget (the accomplice) shortly after the commission of the robbery.
29 In the present case the factors which weigh in favour of giving a Domican direction to the jury are not as cogent as they were in either Boardman or Carr. It is not suggested that, in 1999, Lai was mistaken in then recognising the two police who made the alleged corrupt approach to him. On the evidence in the trial, such an error would be highly improbable. However, Mr Young did clearly put in issue the question whether Lai was mistaken in recollecting in 2003, and in his evidence, that Cox was one of the two Drug Squad members who made the corrupt approach to him in 1999. Lai did not know Cox previously. He agreed, in cross-examination, that he recalled Cox and Sadler as a duo who generally worked together. He was not required to recall the identity of the persons who made the corrupt approach to him until four years after the event, when he was interviewed by members of the Ceja Taskforce in 2003. According to his evidence (which is denied by Detective Sergeant O'Neill), it was then suggested to him that, according to the records, the only members of the Drug Squad with whom he had been in contact were Cox and Sadler. The Ceja investigators did not show any photographs to Lai from which he might identify the two police members who he alleged made the corrupt approach to him in 1999.
30 In these circumstances there was, in my view, some scope for error in the recollection of Lai as to the identity of the members of the Drug Squad who he alleged made a corrupt approach to him in 1999. He had limited familiarity with Cox. He was then a frequent user of heroin. He was not required to recall the identities of the two relevant policemen for some period of time. According to Lai, when he turned his mind to that matter, it was in circumstances which might have influenced him to recall, incorrectly, that Cox was one of the two police who made the corrupt approach to him. In those circumstances, given that the issue has been squarely raised by Mr Young, and given that it is conceivable, on the evidence, that an error might have been made by Lai in his processes of recalling one identity of who made the corrupt approach to him, I consider it necessary that I give to the jury a direction in relation to the matters which I have just referred to, in line with the principles referred to in R v Domican.
31 Mr Young submitted to me that the warning which I give to the jury on this issue should not be extensive. I intend to inform the jury that the warning is only relevant if they otherwise accept Lai's evidence as truthful. I shall inform the jury of the general experience of the law of the potential for error which occurs with identification evidence, including evidence of the type under consideration in this case. I shall direct the jury that they should therefore take particular care before accepting the evidence of Lai that he accurately recalls that it was Cox who was one of the two persons who made the alleged corrupt approach to him in 1999. I shall draw to the attention of the jury the matter to which I have referred in the previous two paragraphs of this ruling.
Lai - propensity direction
32 For the purpose of completeness I note that, in my final directions to the jury, I shall also give a "propensity" direction in relation to the evidence of Lai. The evidence of Lai is relevant to the issues in this case because, on the Crown case, the corrupt approach to Lai marked the beginning of the conspiracy alleged in the presentment. In his opening, Mr Tovey QC made it clear to the jury that the Crown would not contend that either of the accused men should be convicted on the evidence of Kenneth Lai. The Crown accepts that the accused could only be convicted if the jury were satisfied beyond reasonable doubt as to the evidence of Duy Le. In my directions to the jury I intend to remind them of the role which Lai's evidence plays in the Crown case. I shall also direct the jury that, if they accept Lai's evidence, they must not reason that, by reason of that evidence, the accused were the kind of people who were likely to have acted in the manner alleged by the Crown.[26]
Corroboration
33 It is common ground between the parties that there is no evidence, independent of the testimony, of Kenneth Lai, capable of corroborating Lai's testimony. Accordingly I shall direct the jury to that effect.
34 In the course of submissions Mr Tovey QC has outlined to me, in general form, the evidence which he submits is capable of corroborating the testimony of Duy Le and Loan Tran. However in the course of discussion with counsel it became clear that I shall be unable to rule on the question of what evidence is capable of corroborating the testimony of those two witnesses until the conclusion, at the least, of Mr Tovey's final address. A significant component of the evidence which the Crown submits corroborates those two witnesses consists of some components of the various event charts and other charts which have been tendered in evidence before the jury. Counsel have all agreed that it will be better to defer any further submission and ruling on this issue until Mr Tovey has made his final address, in which he intends to identify to the jury the specific parts of the charts and the like upon which he intends to rely against each accused. It may also be necessary for me to defer ruling on the matter until the conclusion of defence counsel's final address, since Mr Young has foreshadowed a submission that some of the evidence which he apprehends the Crown will rely on is "intractably neutral".
Conclusion
35 I summarise the conclusions which I have reached in this ruling as follows:
(a) I intend to give to the jury Faure directions in relation to the witnesses Duy Le, Loan Tran and Kenneth Lai.
(b) I intend to give two further directions to the jury concerning Lai's evidence, namely -
(i) I shall direct the jury as to the relevance of Lai's evidence, and in particular shall give the jury a direction that they are not to indulge in "propensity" reasoning in respect of that evidence;
(ii) I shall give the jury an "identification" direction in relation to Lai's evidence, tailored to the issues which I have discussed in the body of these reasons.
(c) As discussed with counsel, I shall defer ruling on the question of what evidence is capable of corroborating the testimony of Duy Le and Loan Tran until the conclusion at least of Mr Tovey's final address.
[1] [1993] VicRp 87; [1993] 2 VR 497.
[2] R v Ferguson [2005] VSC 471R.
[3] [2004] VSCA 73; (2004) 8 VR 388 at 395 [para 55].
[4] See also R v Latina (1996) BC 9601368 at 10; R v Campbell (Unreported, Court of Criminal Appeal, 14 November 1994); R v Miletic [1997] 1 VR 593 at 606.
[5] cf R v Hickey & Anor (1995) BC 9502631 at 25-26.
[6] R v Weiss [2004] VSCA 73; (2004) 8 VR 388 at [55] (Callaway JA).
[7] [1992] HCA 13; (1992) 173 CLR 555 at 561-2.
[8] T 1355.
[9] This evidence was denied by Detective Sergeant O'Neill (T 4167); see also Exhibit P160.
[10] T 1463.
[11] Above at 561-2.
[12] Kelleher v R (1974) 174 CLR 534 at 551 (Gibbs J); R v Burchielli [1981] VicRp 61; [1981] VR 611 at 616-17.
[13] R v Spero [2006] VSCA 58 at [28] per Redlich AJA; R v Turnbull [1977] QB 224 at 228.
[14] [1969] VicRp 17; [1969] VR 151.
[15] (Full Court of Victoria, unreported, 6 December 1967).
[16] At 156; See also at 163, (per Menhennitt J).
[17] [2000] TASSC 183; (2000) 117 A Crim R 272.
[18] Page 289; paragraph 61.
[20] See also Peck v Western Australia [2005] WASCA 20 especially at paras 49 to 57; R v Conci [2005] VSCA 173 especially at paras 55 to 57, per Eames JA; R v Marijancevic (1993) 70 A Crim R 272 at 276.
[22] See at para [30].
[24] See paras [74-75].
[25] See also Smith v Western Australia (above) at [72].
[26] Compare R v Grech [1997] 2 VR 609; R v Best [1998] 4 VR 603 at 614 and following (per Callaway JA); R v Taylor [2006] VSCA 53 at [18] to [24].
R
Cox & Sadler
(1990) 64 ALJR 588
(2004) 8 VR 388
(1992) 173 CLR 555
(1974) 174 CLR 534