R v Rich

Supreme Court of Victoria|2008-10-23|Before: LASRY J

CRIMINAL LAW - Voice identification - Reliability - Identification at court where accused expected to be seen - Prejudice - Discretion - Whether unfair to admit the evidence.

1 This is an application on behalf of the accused, Hugo Rich, to exclude the evidence of the witness Tony Laria, insofar as it relates to the identification of the voice and physical appearance of the accused at the Melbourne Magistrates' Court on 21 March 2007 and 3 April 2007. The application has proceeded on the basis that although the evidence is relevant and admissible, the evidence should be excluded in the exercise of my discretion.

2 On Tuesday 8 March 2005 two Chubb security guards were delivering money to the Commonwealth Bank of Australia at Blackburn North Shopping Centre when an armed robbery occurred. There were two people directly involved in the robbery and the Crown says that one was Leonard Frank Ryan and the other was the accused, Hugo Rich. A bag containing $162,000 was stolen from the guards, and during the course of this robbery one of the guards, Mr Erwin Kastenberger, was fatally shot. The Crown case is that Rich was responsible for that shooting.

3 A third person was also said to have been involved, being Sean Hogan. Hogan was in a position to send a signal to Ryan and Rich that the guards carrying the money had arrived, and upon receiving that signal they entered the Shopping Centre through an entrance near the toilets. Inevitably, the two offenders were wearing items of clothing designed to conceal their appearance, including balaclavas. According to the Crown case, as the two offenders Ryan and Rich went through a doorway leading to a corridor near some toilets they confronted Tony Laria. Mr Laria was a customer at the Shopping Centre, who at the time was heading towards the toilet. He was ordered to get on the ground by one of the offenders and that command was reinforced a minute or so later as they were leaving. Mr Laria is not able to identify either of the offenders by physical appearance other than to describe what he saw and that description is incorporated into two statements that he made to police.

4 In his statement of 8 March 2005, Mr Laria gave a description of the one offender that he actually saw, the relevant portions of which are as follows:

I was just about to open the males toilet door when the door before it burst open very, very quickly.

I just looked at a male wearing a balaclava and a fluoro workman's top. The top was yellow. He was holding a small black handgun. The barrel was very small, I mean I think it would have been a small calibre. I looked twice and I could see that it did not have a sight at the front.

When he came through the door he was not expecting me to be there as he stopped and stood back. He then pointed the gun at me. He said, "Get down, stay down". I dropped to the ground. This male stepped over me. As I lay on the ground I saw his shoe which was a large black blundstone type shoe.

Mr Laria then described this man and another man moving towards the foyer area of the Shopping Centre and hearing a gun shot. He then said:

I lay on the ground still. I then could hear them running back towards me. The same person who told me prior, told me to "stay down" again. They then left through the same door. I could hear a lot of yelling and screaming from the foyer.

Later in his statement Mr Laria gave the following further details:

The first male was wearing a black balaclava about 6 foot in height, stocky build. He was wearing black gloves, I couldn't see any skin so I think he was wearing black gloves. The fluoro shirt went down to the gloves.

The initial conversation from this male was a surprised type of voice. Once he told me to get down, it was a very deep manly voice and he was in charge.

I heard this voice all the way along the corridor into the foyer. However, I do not know what he was saying.

Finally, at the conclusion of his statement Mr Laria said:

He may have had dark eyes as light coloured eyes would show up against the black balaclava. I believe he may have been ethnic due to the voice, second generation no accent.

5 On 21 March 2007, Mr Laria attended the Melbourne Magistrates' Court for the purpose of giving evidence in the committal of the accused. He went to court room 13 which was the court room he had been directed to when he sought directions on entering the Melbourne Magistrates' Court building.[1] On that day he describes having entered the court room and very shortly after doing so, hearing the accused, who was then representing himself, engaged in an outburst directed at the presiding Magistrate. In a statement made on 20 April 2007, Mr Laria described this incident as follows:

On the first day, I think it was the 21st March 2007, I attended the court as requested by the police. I was at court at 10am but could not see the police officer Steve Trewavas. I was a little nervous that I had the wrong court and was not sure what to do. I was hesitant but walked into court 13 at about 10.30 or 11am. To make sure I had the right place.

When I walked into the court I saw a man standing up on the left side of the court room. He was wearing black slacks and black shirt, I think he was wearing all black. He started pointing his finger and started yelling and threatening in a raised voice. I can remember he said something to the effect of "You pigs just want someone to hang and you are not going to hang me". I immediately knew because of his presence, physique, height and his authoritive [sic] and commanding voice, that this was the same person who pointed the gun at my head and commanded me to lie on the floor at the Blackburn Shopping Centre. He was the guy who was in control and calling the shots when I was told to get on the ground. I knew by his sheer presence that this is the same man. I know it was the same man and felt sick to my stomach when I looked at him and heard his voice. I did not give evidence at court on that day.

6 On 3 April 2007 Mr Laria attended the Melbourne Magistrates' Court again and this time did give evidence. His description of what occurred is as follows:

On the 3rd of April 2007 I was again called to give evidence at court 13 of the Melbourne Magistrates' Court. This time I did give evidence about what I saw at the Blackburn Shopping Centre. I was asked questions by the same man whom I had recognised the last time I had been in the court room. Again I felt sick and was upset by him. The man asking me questions was the man wearing the balaclava that put the gun to my head and told me to get on the ground at the Shopping Centre. I am sure of this.

7 As a result of the application being made to exclude the evidence of Mr Laria's identification, a voir dire was conducted and Mr Laria and Detective Senior Constable Trawavas gave evidence and were cross-examined.

8 During the evidence in chief, an audio tape from the committal proceeding was played to Mr Laria by the prosecutor. This is the incident that Mr Laria gave evidence that he witnessed on 21 March 2007 very shortly after he walked into court room 13 at the Melbourne Magistrates' Court and sat down. A transcript of what was played to Mr Laria is in the following terms:[2]

DEFENDANT: He should stop frigging well attacking my integrity because my integrity has got a lot more than his, I can tell you that, because all he's doing is servicing the prosecution case which is built on a house of cards.

HIS HONOUR: Mr Rich, I'm now going to stand the matter down to allow the prosecutor to prepare the video tape or the disk player or whatever it might be, so that it can be played for the purpose of you observing it prior to the witnesses being called and after you have had an opportunity to view the disk or that depiction, then the witnesses will be called.

MR RYAN: If Your Honour pleases.

DEFENDANT: Before you leave can I now have a go to rebut what he said. You can't shut me up. I'm on the other side, you can't shut me up and you can't be a de facto defence lawyer. You can't because it's just inappropriate for you to do so. He makes assertions and he continually makes assertions, if he is not put back in his box now he never will be.

His whole case is predicated on a bunch of goddam lies, he's involved in a conspiracy to pervert the course of justice with the police. I notice the informant is there laughing, I've got a surprise for you, when you get in the witness box don't worry mate, right. It's about friggin' time that they come to the friggin' table and deal with these matters. You know, they've orchestrated everything in this case, orchestrated everything to deny me these proceedings. Now, call for the evidence, I call for the evidence to rebut what he just said, because now what's on the transcript, I'll end up wearing it later on and that's not fair.

You know it's about him self serving right in the transcript and riding home on his purported credibility, he ought to go and have a manicure to chill out for Christ's sake. I'm entitled to put my defence, it's not for him to dictate to me, to circumvent what cross-examination the defence may want to put and I've never had the material and if you are now going to give it to me, fantastic. Where's the material off the computer with respect to buttressing that? I can't have it.

What you are forcing on me (indistinct) nobody else is (indistinct) doing and I've had enough of it. It's fucken' bullshit, that's what it is - - -

HIS HONOUR: Yes, I'll stand the matter down whilst (indistinct) are made in relation to the playing of the video tape.

DEFENDANT: - - - fucken' bullshit. You've got the vultures sitting in the court, you don't want it (indistinct) the signs up, hang the cunt. Fuck youse, fuck youse, fuck youse, all of youse, fuck youse, fuck youse, all of youse, you rotten fucken' maggots.

9 It having been played, the witness said he recognised that as being "the verbal eruption" that he witnessed and he added that he recalled the use of the word "maggot" towards the end of the outburst by the accused man.

10 Mr Laria was cross-examined at some length about the opportunity he had to hear the voice of the offender at the North Blackburn Shopping Centre. His evidence was that when he first encountered the man, that person said to him "get down, stay down". The second time that he encountered him as the offender was leaving the scene of the crime, he said he was told "stay down". He agreed that in total he heard the offender say six words, being "get down, stay down" and then "stay down" repeated. He described the manner of speaking as being "authoritative and very direct".[3] He said he could not say what the volume was but added "stern" to the list of adjectives describing the voice. He said that in describing what he meant by authoritative, the voice was used in "the same way when somebody speaks with a lot of excitement, like a trainer would tell you, or like you speak to a dog".[4]

11 In the course of being cross-examined, the witness was reminded that in his police statement he had also said "I believe he may have been ethnic due to the voice, second generation, no accent".[5]

12 There was then a lengthy cross-examination by counsel for the accused in which he endeavoured to confine the witness to an estimate of how long the words that he heard took to be spoken.

13 Mr Laria was also cross-examined about his state of mind and knowledge leading to his first attendance at the Melbourne Magistrates' Court on 21 March 2007. Mr Laria knew Rich's name because it was on the paper work that required his attendance as a witness. By the time he had gone to court on 21 March 2007, he had searched for information on the internet through the search engine "Google" and that produced an article about Rich from The Age newspaper several years earlier.[6] His understanding was that he was going to court to give evidence.[7] He knew from what he had been told or what he had read that there had been three offenders and that two had pleaded guilty. He knew that meant that there was one person left who was defending the case brought against him.[8] Further, he knew from what the police had told him that Rich had no lawyers and that he would cross-examine him in person. Mr Laria agreed that when he saw Rich "erupt" in the court room, he knew he was the sole remaining accused in the case and that he was the man the police were alleging had shot the deceased security guard.[9]

14 The next issue which may affect the reliability of Mr Laria's evidence concerns what he told the police after he heard Rich speak and when he told them. Mr Laria gave evidence that after the incident in the court room on 21 March 2007, he spoke to Detective Senior Constable Trewavas and told him what had happened and that he could identify Rich's voice. His evidence was that on leaving the court room, some time afterwards he spoke to Detective Senior Constable Trewavas and told him that the man inside court room 13 that he had heard speak was the same man who had given him orders at the Shopping Centre on 8 March 2005.[10] In particular, he said the following during cross-examination on the voir dire:

Okay. And you didn't lie to Steve, you told him, "The reason I'm upset is because I now know that the bloke in the", we will call it the dock, you know what I mean by the dock? --- Yep, yep.

"Is that bloke who gave me the orders"? --- Yep.

"On the day"? --- Yep, correct.

15 However, Detective Senior Constable Trewavas' evidence was to the contrary. His notes reveal that Mr Laria first spoke to him about this issue on 3 April 2007 and he records the conversation as follows:

... spoke to Tony Laria outside court immediately after giving evidence. I said, "Are you okay?" I've got in brackets "red eyes and distressed". He said, "That was him." I said, "How do you know?" He said, "Do I have to say?" I said, "I would appreciate it, let's speak over here." He said, "Last time I walked in by mistake and he was having a hissy fit and pointing." I said, "Yes." He said, "I could tell by his physical presence and his voice. It was the man in front in the corridor." I said, "Are you sure?" He said, "Yes, it was him. Both his voice and his physique".

16 On its own, that discrepancy may amount to little. Mr Laria has made a mistake about the date on which he first spoke to Detective Senior Constable Trewavas about what he had seen and the significance of it. But added to the other circumstances surrounding this identification it may have more significance.

17 On behalf of the accused, Mr Desmond submitted that the identification by Mr Laria of Rich on 21 March 2007 and 3 April 2007 was effectively what is known as a "dock identification". Such forms of identification are criticised in R v Davies & Cody,[11] R v Alexander,[12] and Grbic v Pitkethly.[13] However, in my opinion, this is not strictly a "dock identification" in that Mr Laria has not been asked to look either at the dock containing the accused or the area where he might be expected to be sitting and then make an identification. As I follow the evidence no request of him had been made to try to identify anyone and his identification of the voice he heard was spontaneous.

18 Mr Desmond submitted that in those circumstances his evidence should not be admitted, particularly where it is the primary identification. In particular, he submitted that such an identification is unreliable and has little probative value, referring in particular to Alexander v R.[14] He referred to the improper prejudice that this evidence would generate given all the circumstances. Mr Desmond contrasted this situation with what he described as "fair identification procedure" although his submission in that respect was not a criticism of the police investigation. Mr Desmond submitted that the "climate" of going into a court room "predisposes" Mr Laria toward making a positive identification. On the police evidence, Mr Laria makes no approach to the police to indicate his ability to identify Rich until 3 April 2007, some two weeks later.

19 On behalf of the Crown, Mr Tinney submitted, I now consider correctly, that this evidence of Mr Laria was not a "dock identification". Mr Tinney submitted that because Mr Laria was not being directed to the function of trying to identify anyone, there was no "dock identification" and the difference was a very important one. The person he identifies, Mr Tinney submitted, "could be anyone". Mr Tinney pointed to the fact that Mr Laria had not seen anyone in court room 13 connected with the case and therefore may still have believed he was in the wrong court room. Mr Tinney relies on the fact that on 8 March 2005, Mr Laria and the offender he encountered were at "close quarters" and although only a few words were spoken, Mr Laria gave evidence that he could hear the same voice down the corridor. The problems with the evidence, including the brevity of Mr Laria's encounter with the offender and the delay between that event and the identification, can all be dealt with by judicial direction to the jury, Mr Tinney submitted.

20 In R v Callaghan,[15] the Court of Appeal was considering the refusal by the trial judge in an armed robbery trial to exclude the voice identification evidence of the two bank staff. The style of identification was different from what occurred in the case before me. However, the principles were summarised ultimately by Winneke P in the following terms:

In any event, the law applied in New South Wales as to the admissibility of voice identification or similarity evidence is not the law which has been consistently applied in this State, where questions of "familiarity" and "distinctiveness" have not been regarded as conditions precedent to admissibility, but rather as matters going to the weight of the evidence; matters which are - subject to the judge's discretion - for the jury to decide in the light of adequate directions given to them by the judge, with the authority of his office, pointing to the dangers which the law recognises as lurking in any form of identification evidence.[16]

21 His Honour then referred to the observations of Ormiston J in R v Harris (No. 3),[17] including that there was no binding authority which required him to rule that the evidence was inadmissible. His Honour indicated an unwillingness to follow R v Smith,[18] where those conditions precedent were attached to the admissibility of the evidence.

This review of the authorities on the question of the admissibility of voice identification evidence leads me to conclude that courts in this State should continue to follow the principles which have been established by previous decisions of the Court of Criminal Appeal; namely that there is no rule of law which obliges the trial judge to exclude such evidence in the absence of evidence of prior familiarity or distinctiveness, although he may, in the exercise of his discretion, exclude it on the grounds of prejudice or unfairness.[19]

23 That statement of principle was referred to by Redlich J (as he then was) in R v Quong Quoc Lam & Ors, where his Honour noted:

An accused can be identified by his voice alone. In New South Wales, courts have taken the view that voice identification is only admissible on two bases, those bases being either a familiarity with the voice prior to the time of the offence or the voice possessing some distinctive feature such that it may leave an indelible impression upon the mind of the witness. The law in Victoria is different in that the admissibility of voice identification is not conditional upon the two bases set out above. The law as applied in Victoria places issues of familiarity with a voice and distinctiveness of any voice as going only to the weight of the evidence for the jury's consideration rather than to its admissibility.[20]

24 The question I am therefore considering is whether admissible evidence should be excluded in the exercise of my discretion because the quality of the evidence falls short to the point where its frailties, including the risk of "auto-suggestion", cannot be cured by an appropriate direction and caution by me to the jury.

25 It was in Davies v R that the High Court recognised the Victorian approach to identification evidence was in error and likely to lead to injustice.[21] In ordering a new trial of the applicants on the charge of murder, the Court observed that the experience of the English courts and their approach to identification evidence was to be applied. It was:

... indisputable that a witness, if shown the person to be identified singly and as the person whom the police have reason to suspect, will be much more likely, however fair and careful he may be, to assent to the view that the man he is shown corresponds to his recollection.[22]

26 Referring to these observations, Gibbs CJ in Alexander v R said:

Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v. The King. In particular there is the danger that the witness will too readily come to believe, without any true recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognized the danger of acting upon evidence of identification made in those circumstances. It has accordingly become established practice for a witness to be asked to identify the accused at the earliest possible opportunity after the event, and for evidence to be given of that act of identification.[23]

27 In dealing with the how a trial judge might exercise his or her discretion to exclude admissible evidence in the exercise of his or her discretion, Gibbs CJ said:

The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.[24]

28 In the exercise of my discretion in this case, the conduct of the police is not an issue. The criticism of the evidence does not include a criticism of the police or their methods, although it is a fact that Mr Laria was never asked to participate in a voice identification exercise between the armed robbery and murder on 8 March 2005 and his claimed recognition of Rich's voice in March 2007.

29 In his dissenting judgment in Alexander v R, Stephen J referred to what he described as the displacement effect, referring to the "rogues' gallery" effect of a collection of police photos being used for identification purposes.[25] Ultimately, of course, by a majority the High Court held that the evidence of identification was admissible and that the photographs used in the process were also admissible.

30 A case which bears a similarity to the facts of this case is R v Williams.[26] In that case, the Full Court of this Court was concerned with the following circumstances. A witness who had seen an offender sitting outside a bank shortly before a robbery had recognised that person as one of the accused when she saw him being taken into court in handcuffs. She had not been asked to watch out for him or attempt any identification. The trial judge declined to exercise his discretion to exclude the evidence though it had been argued, as in the case before me, that it was little better than a dock identification.

31 The identification in that case occurred 11 months after the offence. In dealing with the criticism of the trial judge's refusal to exclude the evidence, Gobbo J (with whom Young CJ and Anderson J agreed) said:

In my view, the identification evidence in question was of a quite different nature to the type of evidence that drew criticism in Davies and Cody v. R. and R. v. Burchielli. This was not a case of the applicant being presented to the witness, either directly or in like circumstances, such as presence in the dock. Here, unlike the situation in R. v. Burchielli, there was no presentation of the applicant at all. There was a wholly spontaneous identification by the witness, who was simply sitting alone, not looking for anyone in particular nor responding to any invitation from the police, or indeed anyone else, to look for a suspect. It is true that her memory was apparently revived when she saw the applicant being conducted towards the Court in handcuffs. But that was a matter of weight that the jury was properly and repeatedly urged to take into account, along with criticisms of the witness for not having, until such a late point, reported her observations of the man in the Valiant car outside the bank. These were merely features of her evidence that properly attracted comment. More significant was the spontaneous manner in which she identified the suspect as the man who was wearing a Collingwood beanie and was outside the bank, and whose presence she had not previously associated with the robbery. The character of the evidence given by Miss Hunt was of a superior kind to that typified by a dock identification of a person not familiar with the identifying witness.[27]

32 Whilst similar, there are several important differences. First, the identification in Williams was a visual identification. Second, there was nothing to suggest that there was background knowledge in the mind of the witness which may have had an auto-suggestive effect. Third, the prejudice that would flow from the jury being aware that the accused was in handcuffs in that case is significantly less than the effect of playing the tape of Rich's violent outburst in court which Mr Laria used to make the identification. I will deal with that subsequently. These differences limit the ability of the Crown prosecutor in this case to rely on Williams in support of the admission of the evidence.

33 The High Court dealt with an issue concerning voice identification in Bulejcik v R,[28] but the circumstances were quite different from those with which I am concerned. In that case the Court was concerned with a comparison the jury had made between the voices on a tape recording obtained by police during their investigation, including an alleged heroin supplier, and the tape recording of the voice of the accused when he made an unsworn statement during his trial. The applicant's argument that there had been a miscarriage of justice in that case succeeded and a new trial was ordered. The circumstances in that case are obviously quite different. In this case there is no tape recording of the voice of the accused heard by Mr Laria during the incident on 8 March 2005. Thus, other factors - not relevant in Bulejcik v R - are relevant here. As Brennan CJ observed:

Admissibility of such evidence depends not only on the witness' familiarity with the speaker's voice or the distinctiveness of the voice or the witness' expertise. Other factors are material. One factor is the clarity with which the witness has been able to hear the voice of the putative speaker on the material occasion and, in a case when a comparison with a voice heard on another occasion is relied on, on that occasion. Another factor is the time which elapsed between those two occasions.[29]

34 Brennan CJ then referred to the issue of admissibility and having dealt with that turned to the discretion to exclude admissible evidence:

However, the ordinary rules of evidence confer on a judge a discretion to exclude evidence that is unduly prejudicial, albeit the evidence is otherwise admissible. The exercise of that discretion is designed to avoid a significant risk that the evidence will be misused by the jury in a way that cannot be guarded against by an appropriate warning. As the discretion is designed to avoid the risk of a miscarriage of justice, the exercise of that discretion in practice is apt to lift the level of familiarity or distinctiveness or expertise expected of admissible evidence. Again, that is a matter of degree to be assessed in the circumstances of each case.[30] (added emphasis)

35 In the judgment of Toohey and Gaudron JJ, the difference between New South Wales and Victoria is referred to:

Smith was approved in R v Brownlowe and R v Corke (but distinguished because the voice identification was in conjunction with visual identification) and R v Brotherton (where ten minutes conversation two days prior to the crime would not have been regarded as sufficient to render voice identification admissible had there not been some visual identification also). However, courts in Tasmania and Victoria have declined to follow Smith, holding that lack of such distinctiveness as will have left an indelible mental impression goes to weight rather than admissibility. In R v Harris [No 3] Ormiston J examined the discretion of the trial judge to exclude evidence of voice identification where it was insufficiently probative.[31]

36 In R v Harris (No. 3),[32] Ormiston J was concerned with the proper method of identifying voices from intercepted telephone conversations. The identification, made by a police officer as the result of his personal meetings, was held to be admissible. Ormiston J specifically sought to give greater definition to the meaning of "prejudice" where it is pertinent to the exercise of discretion and observed:

In R. v. Haidley and Alford, Brooking J. said: "'Prejudice' means improper prejudice, and I do not think that the fact that the witness picked a photograph from a folder or a man from those assembled in the exercise yard can be said to be improperly prejudicial in the sense that the jury might be irrationally impressed by the fact of the identification and give to it an importance unaffected by what is said by the trial Judge and by counsel as to considerations affecting its weight."

It is the concept of a jury being "irrationally impressed" by certain identification evidence which is a proper discretionary basis for excluding some of that evidence where the means adopted are conducive to drawing false or unreliable and thus misleading conclusions. That is, in my opinion, why it is accepted that dock identifications alone, unsupported by earlier out-of-court identifications, should be excluded from evidence. Again the identification by the use or the production of a single photograph or "mug shot" is said to be so suggestive that the evidence of it should usually be excluded on the exercise of the discretion. The single photograph may often have an additional element of prejudice, that is, in suggesting the accused was in some way known to the police, but dock identifications must have been excluded only on the basis of their inherent weakness and the possibility of suggestion overriding rational identification. Each case must therefore be decided on its own particular circumstances.

One should perhaps go back to Davies and Cody v. R. Although it did not in terms involve a consideration of what may constitute the grounds for excluding prejudicial evidence upon the exercise of a discretion, in the joint judgment of the court it was stated:

They [that is, the English authorities] treat it as indisputable that a witness, if shown the person to be identified singly and as the person whom the police have reason to suspect, will be much more likely, however fair and careful he may be, to assent to the view that the man he is shown corresponds to his recollection.

... It is important that this recollection should not be overlaid or in any way affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime.

It is at this stage, however, in my opinion, that the general observations of O'Brien J. in Smith's Case may have greater significance and use, for his reference to Davies and Cody and Alexander's Case provide an appropriate analogy for a consideration of voice identification evidence and the circumstances in which the court may by the exercise of its discretion determine to exclude it. Perhaps on my reading of the case I have been unfair to the learned judge and that it was to the discretion that he was seeking to refer. As I have already said, his language appears to relate to admissibility rather than the exercise of a discretion. However, for present purposes, there is much to be said for considering the dangers of voice identification upon inadequate grounds, to which he refers, when the question of discretion arises.[33]

37 In relation to the question of what has been referred to as "improper prejudice", there is a further factor to be considered. In order to lead the evidence of Mr Laria concerning the voice he recognised on 21 March 2007, and in order for the jury to scrutinise that evidence and determine whether they would accept his identification of the voice as being that of the accused, Mr Laria's evidence would almost certainly have to include the playing of tape recording of Rich's outburst in the Melbourne Magistrates' Court, the text of which I have reproduced. I have listened to the tape during the hearing of the voir dire. The language used by Rich in his outburst coupled with his highly aggressive attitude might well have a significant prejudicial effect on the jury. Hearing that outburst might incline them to the view that Rich is an aggressive, angry and vindictive person who showed no respect for the court in which he was appearing or those who were the targets of his abuse. Such behaviour, they might think, is consistent with that of a person who would commit the violent armed robbery and murder that occurred on 8 March 2005.

38 On the authorities it is clear that this evidence is admissible and the question which arises for my determination is whether I should exclude the evidence on the basis that its prejudicial effect significantly exceeds its probative value. In considering the probative value of the evidence it is, I think, relevant to note the factors which are not pre-requisite to admissibility in Victoria but may nonetheless be relevant to the exercise of discretion. Mr Laria had a very limited opportunity to hear the offender speak at the scene of the crime on 8 March 2005. He did not have any prior familiarity with the offender's voice. The delay between hearing the voice at the crime scene and hearing Rich's voice in court was slightly in excess of two years. Mr Laria had some knowledge about Rich and some expectation of being cross-examined by him when he went to court on 21 March 2007. What he saw on that day was an aggressive outburst. What he had seen on 8 March 2005 was a much briefer aggressive outburst. Both incidents had a traumatic effect on him.

39 Mr Tinney submitted on behalf of the Crown that the person Mr Laria identified could have been anyone, but the reality is that is not so. As I have outlined above, he was in the court room in which he had been told the Rich committal proceeding was being held with the pre-existing state of mind and knowledge that I have described above in paragraph 13.

40 In this case there is the further and particular prejudicial effect I have referred to inherent in leading the tape of the proceedings on 21 March 2007 during Mr Laria's evidence.

41 I have concluded that the proper exercise of my discretion requires me to exclude the evidence and I therefore do so.

[6] Transcript at 612. I have assumed that the article to which Mr Laria referred was one under the headline "Hugo Rich chose the Low Road" by John Silvester which was published on 10 June 2005. For further detail about that article see R v Rich (Ruling No. 7) [2008] VSC 437R.

[27] [1983] VicRp 116; [1983] 2 VR 579 at 582 (citations omitted).

[29] Ibid at 381-2. His Honour was in dissent on the outcome of the application.

[33] Ibid at 318-19 (citations omitted).

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