Police v Jervis (1998) 70 SASR 429 followed

R v Edelsten (1990) 21 NSWLR 542 followed

R v Swaffield (1998) 192 CLR 159 considered

R v Murphy [1996] 2 Qd R 523 considered

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 referred to

Driscoll v The Queen [1977] HCA 43; (1997) 137 CLR 517 referred to

Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612 referred to

R v Christie [1914] AC 545 referred to

R v Collins [1986] VicRp 3; [1986] VR 37 referred to

R v Duke (1979) 22 SASR 46 referred to

R v Hasler, ex parte Attorney-General [1987] 1 Qd R 239 referred to

R v Lynch (1979) 2 NSWLR 775 referred to

R v White [1969] VicRp 25; [1969] VR 203 referred to

CRIMINAL LAW - Evidence - Depositions - Persons unable to attend through death - Right to read depositions - Whether discretion in court - Warning to jury.

R v Lynch (1979) 2 NSWLR 775 followed

R v Stackelroth (1996) 86 A Crim R 438 followed

R v Mendham and Foster (1993) 71 A Crim R 382 followed

Attorney-General (NSW) v Jackson [1906] HCA 90; (1906) 3 CLR 730 referred to

R v Oda (1980) 54 CCC (2d) 466 referred to

R v Tretter (1974) 18 CCC (2d) 82 referred to

R v Dunnett [1969] QWN 16 doubted

R v Wilton [1946] QWN 19 doubted

Justices Act 1886 (Qld) s 111

Solicitors: Director of Public Prosecutions (Qld) for the Crown

1 FRYBERG J: The applicants in these proceedings brought pursuant to s 592A of the Criminal Code have been indicted for murder. They seek a ruling that the evidence of Cecil Henry Schuurs, the father of one of the accused, be excluded in the exercise of my discretion. It is necessary to describe that evidence and to place it in context in the Crown case.

2 On Saturday 7 March 1998, Michael Semyraha, a cousin of one of the accused, was shot in the chest with a .22 calibre bullet. The shooting occurred at his home at Browns Plains. He died in hospital later that day. He was a drug user and had a criminal history. He was conscious when police arrived at the scene of the shooting, but refused to say who shot him, falsely asserting that he shot himself. Police interviewed the accused Schuurs on 11 March 1998. He then admitted that he, a woman named Tia Mitchell and the accused Semyraha had together gone to his father's house on 7 March. After some time, they left the house together, with Schuurs himself driving his father's red Mazda 323, taking with them from the house a .22 calibre rifle and ammunition. He had procured the bullets from a friend a couple of weeks earlier. Schuurs told police they went to Michael Semyraha's home to collect a drug-related debt. According to Schuurs, Michael Semyraha came out of the house armed with two knives, and he thought that he was going to be attacked. He called to Adrian Semyraha, who had the rifle, to shoot him. There was a shot and Michael Semyraha fell to the ground. Mitchell, Adrian Semyraha and Schuurs got into the car and drove off. In the lengthy interview, Schuurs also made a number of exculpatory statements which it is unnecessary to describe in detail.

3 On the following day, police interviewed Mitchell. It is unnecessary to recount her version of events. Although she has pleaded guilty to manslaughter and the Crown has accepted that plea in full discharge of the indictment, the Crown does not intend to call her as a witness at the trial.

4 The accused Semyraha was interviewed five times on 12 March 1998. In the first four interviews he denied any involvement in the shooting. The police played him a portion of the tape-recorded interview with Schuurs, where Schuurs implied that Semyraha shot the deceased. He denied knowing Schuurs and denied having been to his father's home. He said it was some time since he had seen Mitchell. In the fifth interview, after being told that he was to be arrested and charged with murder, he admitted shooting his cousin. He said, "Well fair enough then, I shot the cunt, went there shot him dead. I'm not sorry I did it, I'm glad I did it, yeah." Asked what happened he said, "I went to his house, called out to him, he was in the front yard and I shot him and he dropped and I went." He said, "I shouted out, `Michael you fucking dog' and he looked around and I said, `You know me' and he looked at me and I shot him." Asked what he wanted to do when he shot him, he replied, "I wanted to kill him."

5 All of the interviews between the police and Semyraha were secretly tape-recorded. Semyraha claimed that before the last interview, the police officers assaulted and threatened him, and told him what to say in the next interview. He claimed that he confessed because of this conduct. A voir dire was held before me prior to the present application, and I ruled the evidence admissible. I need not repeat my reasons here. Semyraha gave evidence. I found him to be a complete liar and a poor liar. I approach the present application on the basis that Semyraha's confession will be in evidence and that while it is possible that he will give evidence, it is unlikely that he will do so.

6 The rifle used in the shooting has not been found. A number of .22 calibre bullets were found in the red Mazda 323 belonging to Mr Schuurs senior. Several witnesses saw that car, or one very like it, at the scene of the shooting. Cigarette butts found in the house of Mr Schuurs senior and in his car contained DNA identified with Adrian Semyraha.

7 The Crown case against the accused is that Adrian Semyraha shot his cousin with the intention of killing him or doing him grievous bodily harm. Against Schuurs the Crown relies on ss 7 and 8 of the Code. The case against him is particularised as follows:

The Crown case is that on 7 March 1998 Clayton Schuurs made the weapon and ammunition available to Adrian Semyraha and Tia Mitchell and or drove a Mazda 323 registration number 887 DFH to 4 Furzer Drive Browns Plains and or left the vehicle at that address and demanded payment of a sum of money from Michael Semyraha, and that at the time Clayton Schuurs did each or any of these acts he knew, that in the event the money was not forthcoming then, whoever had the weapon, would or might fire it at Michael Semyraha, with the intention of either killing him or doing him some grievous bodily harm.

The Crown case is that on 7 March 1998 Clayton Schuurs and Adrian Semyraha and Tia Mitchell travelled to 4 Furzer Drive Browns Plains armed with a weapon and ammunition, and, in the event that a demand for money went unsatisfied, there was a common intention that Michael Semyraha be assaulted with that weapon by it being discharged at him and in the prosecution of that purpose Adrian Semyraha shot and killed Michael Semyraha with the intention of killing him or doing him some grievous bodily harm and that killing was a probable consequence of that purpose.

The acts which were done by Clayton Schuurs to prosecute the unlawful purpose were the provision of the weapon and ammunition to Adrian Semyraha and Tia Mitchell and or the driving of a Mazda 323, registration number 887 DFH to 4 Furzer Drive Browns Plains and or the demand for the payment of a sum of money by Michael Semyraha."

8 It is against this background that one must consider the evidence of Mr Schuurs senior. Put at its highest for the Crown, that evidence is that on the morning of 7 March 1998, his son, Tia Mitchell and a man whom they called Adrian came to his house. He could not remember having previously met Adrian. At some time during the afternoon, they left together in Mr Schuurs' red Mazda 323, with Clayton Schuurs driving. On 10 March 1998, Mr Schuurs identified a photograph of Semyraha from amongst twelve reasonably similar males as a photo of the man Adrian.

9 The primary reason for the application now before me is that since the committal proceedings, Mr Schuurs senior, who was 74 at the time of the killing, has died. The Crown proposes to lead his evidence under s 111 of the Justices Act 1886. On behalf of both accused it is submitted that his unavailability for cross-examination, coupled with certain features of his evidence which suggest unreliability, ought to lead me to exercise my discretion to exclude the evidence.

10 The evidence of Mr Schuurs which the Crown proposes to lead is in the form of three statements made to the police and signed by him, the first on 8 March and the others on 10 March 1998; a handwritten statement signed by Mr Schuurs on the back of a photocopy of the twelve photographs shown to him, identifying No 3 as the person called Adrian by his son and Tia while they were at his house on 7 March; and a transcript of the evidence of Mr Schuurs at the committal proceedings on 28 July 1998. The Crown proposes to supplement that evidence with evidence from police officers of what transpired at the time of the photo identification, and to tender a videotape of the whole photo identification process.[1]

The Justices Act 1886

11 As authority to this course, the Crown relies upon ss 110A and 111 of the Justices Act 1886. Those sections provide, so far as is presently material, as follows:

"110A.(1) The provisions of this section are additional to and not in derogation of any other provisions of this Act in relation to proceedings in the case of indictable offences.

(2) Justices conducting proceedings with a view to determining whether a defendant should be committed for trial or sentence in relation to an indictable offence may, subject to the provisions of this section being satisfied, admit as evidence written statements of witnesses tendered to them by the prosecution or the defence without those witnesses appearing before them to give evidence or make statements.

(8) A written statement may be admitted as evidence by justices pursuant to this section subject to agreement between the prosecution and the defence that the person making the statement shall be present when the written statement is tendered to be cross-examined by the other party or parties, as the case requires, and in any such case the justices shall consider both the written and the oral evidence in respect of that person.

(12) A written statement admitted in accordance with this section shall have effect as if it is the deposition of the witness whose statement it is, and it may be used at the trial of the defendant in the same manner, to the same extent and for the same purpose as a deposition may be used.

(13) A written statement admitted in accordance with this section may, when the defendant has been committed by justices to be tried for an indictable offence, without further proof be read as evidence on the trial of the defendant, whether for the offence for which the defendant has been committed for trial or for any other offence for which an indictment shall be presented, arising out of the same transaction or set of circumstances as the offence for which the defendant has been committed for trial, and whether or not combined with other circumstances, if -

(a) the written statement purports to be signed in manner prescribed by the person making it and by the justices before whom it purports to have been tendered as evidence; and

(b) the condition mentioned in section 111(3)(a), read with the words `written statement' substituted the word `deposition' where twice occurring, is satisfied.

111.(1) When a defendant has been committed by justices to be tried for any indictable offence, the deposition of any person taken before justices, or the transcription of the record of evidence given by any person before justices where the evidence is recorded under the Recording of Evidence Act 1962 and the transcription is certified to as correct in accordance with that Act, with respect to the transaction or set of circumstances out of which has arisen the charge on which the defendant has been committed to be tried may, if the conditions mentioned in subsection (3) are satisfied in the case of the deposition and if the conditions mentioned in subsection (3)(a) and (b) are satisfied in the case of the transcription, without further proof be read as evidence on the trial of that person, whether for the offence for which the person has been committed for trial or for any other offence for which an indictment shall be presented, arising out of the same transaction or set of circumstances as the offence for which the person has been committed for trial, and whether or not combined with other circumstances."

12 It was admitted by the parties that the conditions required for the application of s 110A were satisfied and that the statements referred to above were admitted as evidence pursuant to that section at the committal proceedings. It was further admitted that the conditions referred to in s 111(1) and (3) had been or would be satisfied in respect of the statements and the deposition.

13 The effect of those admissions is that the evidence of Mr Schuurs contained in the statements and deposition "may ... be read as evidence on the trial."[2] Neither of the defendants argued that the statute conferred any discretion on the court. They were correct not to do so. Section 111 can be traced back through s 65 of the Evidence and Discovery Act 1867 to s 17 of the Indictable Offences Act 1848 (Eng). However, even before that section was enacted, it seems that depositions were admissible under the common law in circumstances similar to those described in the section[3]. It is I think unlikely that the statute was intended to turn evidence which was admissible as of right into evidence admissible only at the discretion of the trial judge. It seems more likely that the word "may" was used because the parties were permitted (not compelled) by the section to lead evidence in the circumstances set out. That is the view which has been adopted by the Courts of Appeal of Ontario and British Columbia[4] and by the Court of Criminal Appeal of New South Wales[5]. If R v Dunnett[6] and R v Wilton[7] are properly to be understood as decisions to the contrary, then they were, with respect, wrongly decided, and should not be followed. Where evidence is given under the section, the jury should be cautioned in appropriate terms[8].

14 On the other hand, the Crown conceded that nothing in the terms of the section displaced any discretion otherwise exercisable to exclude the evidence, and on the authorities, that concession too was rightly made[9]. I observe in passing that the evidence is also subject to any proper objections which may be taken to it. As Street CJ observed[10], there is no provision that the deposition "shall be admissible in evidence". It will therefore be necessary before the trial to determine whether there are any parts of the evidence which are objected to.

15 It is clear enough that the mere fact that Mr Schuurs cannot be cross-examined is insufficient, by itself, to warrant any exercise of discretion to exclude the evidence. That is the very situation with which the section deals. However Mr Kent, for Semyraha, based his submission on the unfairness and prejudice resulting from the combination of that inability with what he submitted was the unreliability of the evidence. Mr Di Carlo, for Schuurs, joined in and supplemented this submission.

16 The matters which on their submissions gave rise to the conclusion of unreliability fell into two categories. The first involved the nature of Mr Schuurs' evidence regarding the events of 7 March 1998 and the circumstances in which it was procured. The second related to the question of his identification of Semyraha.

17 The first of Mr Schuurs' statements was taken the day after the killing. In it, Mr Schuurs gives some personal details, then describes his red Mazda and says who uses it. The tone of the statement suggests that the emphasis of the police investigation at that stage was on the vehicle. Mr Schuurs then describes what he did the previous day. He refers to his son and a friend, Tia, coming to his home. He says that Tia put on a load of washing and hung it out to dry. He himself went out in the morning and arrived home shortly before midday. His son and Tia were both asleep. He had lunch; his son woke up and he sent him out to bring the washing in; his son had something to eat; and at about 1.30pm or so, his son woke Tia up. They each had a shower, then said they were going to visit some friends. His son asked if he could borrow the car and he agreed. He estimated that they left the house at about 4.45pm in his red Mazda. He started to make his tea, which took roughly an hour, then sat down and had his tea and the 6 o'clock news had just come on television. The remainder of the statement (about a page) deals with events the following day which are not presently material.

18 The second statement was taken two days later. In it, Mr Schuurs refers to his earlier statement that Clayton and Tia left his house at about 4.45pm. He says that after thinking about it, he can't now say whether it was that time; and that it is very possible that it could have been earlier. He says it is possible that he fell asleep in his chair after they left. He looked at the time a little before he went to cook his meal. Second, and most importantly, is this passage:

"In my earlier statement I said that Clayton and Tia came around to say `G'day'. I now remember that there was another male person with them who Tia and Clayton kept referring to as `Adrian'. I gathered that Adrian was Tia's boyfriend as I remember him having his arm around her at one stage. I didn't particularly like him, I just didn't take a liking to him at all and I remember that I just ignored him."

The statement continues with Mr Schuurs describing where "Adrian" sat. It describes him and says that when they left, they left together with Adrian in the back seat. Finally, considerable detail is added to Mr Schuurs' description of events the following day, particularly in relation to attempts to contact his son. Some of these events occurred after his interview with the police, and therefore could not have been included in the first statement.

19 At the committal proceedings, Mr Schuurs was cross-examined by all three defence counsel. Indeed, the cross-examination makes up most of the depositions. Mr Kent, for Semyraha, explored in some detail the circumstances surrounding the taking of the second statement. He also cross-examined in relation to Mr Schuurs' change in the estimated time of departure of the group on the Saturday. Mr Schuurs agreed with him that he did not think his estimate could be out by as much as three hours. Because .22 calibre bullets had been found in the back of the Mazda, Mr Kent explored at some length the possibility that there had been bullets lying on the back floor for some time. Mr Schuurs said he did not think that they could have been. Mr Di Carlo took up the same theme and extracted an agreement from Mr Schuurs that the bullets in one of the police photographs of the back of the car might have been under a mat for a long time, and he would not have noticed them. Mr Di Carlo also extracted agreement from Mr Schuurs that his tendency to doze off and "miss" hours had got worse as he grew older, obtaining the (perhaps jocular) answer, "Yeah, Alzheimer's disease, you know." Mr Schuurs agreed that his memory was not all that good and sometimes was interrupted by lapses when he went to sleep. Mr Di Carlo further obtained agreement from Mr Schuurs that his .22 calibre rifle could quickly be broken into three parts by hand, without a screwdriver, and equally quickly reassembled. Mr Schuurs also agreed with Mr Di Carlo that the luggage compartment of his vehicle did not have the usual luggage cover and that a person sitting in the back seat could easily reach into it.

20 Mr Wilkin (for Mitchell) cross-examined Mr Schuurs in some detail about the circumstances surrounding the taking of the second statement. That statement was taken by a police officer named Hutchinson, who was not the officer who took the first statement. The cross-examination includes this passage:

"What was it that Hutchinson said or did to make you think, `Oh, I must have made a mistake back then, two days earlier.'?-- Well it was the way he put it.

Right?-- He said, `Are you sure you didn't make a mistake?'

Right. And what about the presence of this other fellow, Adrian? Did Hutchinson again, in some way, suggest that you must have forgotten about the fact that Adrian was there?-- I don't think. I don't know. I can't remember.

Because in your first statement where you did - did your honest best-----? Yeah.

----- I mean, as you would, you never talk about a third person?-- In the first statement?

And then when Hutchinson interviews you two days later, one, he somehow seems to get you to change your mind about the time?-- Mmm.

And then he also seems to get you to include the presence of this third person?-- Yeah, he gave me the photos."

Unfortunately from the point of view of the accused, he pressed on after this passage and Mr Schuurs firmed up. He asserted definitely that he did doze off ; and that Hutchinson had not suggested the presence of a third person to him.

21 Mr Schuurs' third statement deals with the process of identifying the photograph. It records that Mr Schuurs was first shown what is described as a "photoboard" depicting twelve photographs of females. A photoboard, I was told, is a term used to describe a page of photographs all on one sheet. He was unable to identify any of the photographs as Tia. He was then shown a photoboard depicting twelve male persons. An identical photoboard was put in evidence before me[11]. According to the statement:

"I looked at the photographs and identified the person as shown in picture number 3 as being the person at my house in company with my son Clayton and a female person I know as `Tia' on Saturday 7 March 1998. This person I know as `Adrian', as that was the name that he was referred to by my son Clayton and `Tia.' I then looked at a photocopy of that original photoboard which I saw was identical to the original.

I then saw Detective HUTCHINSON write on the back of the photoboard and signed my name at the bottom of what he had written indicating that what he wrote was correct."

That handwritten statement signed by Mr Schuurs is the fourth statement which the Crown wishes to tender. It is in these terms:

"At 5.43pm on today's date, that is 10.3.98, I looked at an original photoboard which I saw on the reverse was marked no. `2'. I compared this photocopy with that original photoboard and I saw that both were identical. I looked at the series of 12 photographs in the original photoboard which I saw were marked numbers 1 to 12. I saw that there were no identifying particulars on the photos on the photoboard. I looked at the photoboard and recognised the male person depicted in photo number 3 as the person my son Clayton & a female I know as `Tia' referred to as `Adrian', while they were at my house on the afternoon of Saturday 7.3.98."

22 Mr Kent cross-examined about the identification process:

"Now you say that in - I'm dealing now with your first statement, that you remember Clayton coming back with the car about 8 o'clock Sunday morning and having Tia and another bloke-----?-- Mmm.

-----with him? All right. And that other bloke was Adrian?-- Was it? Yeah, I think it could have been.

Well you seem to suggest that it's Adrian. You were eventually shown a photographic line-up by the police?-- By the police? Yeah.

Is that right? Well was it someone that you knew as Adrian or not?-- Well, it certainly looked like him, otherwise I wouldn't have picked him.

Okay. What's the case now? Do you remember this Adrian person being there on the first day or not?-- Well, they never introduced me to him by name and I just didn't take any notice of him.

But you heard them speaking about him as Adrian?-- Yeah.

Was he there on the Saturday afternoon?-- Oh, hell, I can't remember that far back.

Mmm. You do remember a third person being there on the Sunday morning?-- Yeah."

Neither Mr Di Carlo nor Mr Wilkin cross-examined on the identification process. Constable Hutchinson was not required for cross-examination at the committal and the video of the identification process was tendered without objection. The statement shows that two further photoboards, each containing twelve photographs of male persons, were shown to Mr Schuurs after he identified "Adrian", and that he was unable to identify any of the persons on those photoboards.

23 The actual identification was carried out by pointing. Mr Schuurs looked at the photographs and at the time he pointed said, "I'd say it's - these photos are pretty ancient by the look of them, but if anything he was - he'd be ... ." He was then shown the photocopy and asked to compare the two and to say if the photocopy was an identical copy of the original. He responded, "Yeah I'd say so." The following exchange then took place:

Well, could you be sure about it?-- Yeah, I'd say, yeah.

All right. Have you looked at each one-----?-- Yeah.

-----to make sure that they're all the same?-- Yeah, they look alike.

Okay, I'll just something on the back of here?-- Tell you what, they slodged the ink on that thing.

Yeah, it's fairly - it's not easy to get photocopies off pictures?-- No."

Constable Hutchinson then wrote the text quoted above and asked Mr Schuurs to read it loud. This Mr Schuurs did, albeit with some degree of difficulty. When he finished reading, the following exchange took place:

Yeah, you did pretty good?-- Not bad for an old bugger.

It's really good?-- Have you got thing turned off now?

No, would you be prepared to sign that for me?-- Yeah."

24 In summary, the accused submit that Mr Schuurs unreliability is shown by the changes and additions contained in his second statement as compared with the first, particularly in relation to the time of departure of the group and the presence of a third person; and his admitted memory problem (his reference to Alzheimer's disease). They submit that the identification is dubious because Mr Schuurs did not use his glasses, did not know Adrian Semyraha prior to seeing him on 7 March 1998; made the identification on the basis that it had to be someone on the sheet; and was congratulated by Constable Hutchinson for his efforts. Finally, they submit that they are particularly adversely affected by an inability to cross-examine Mr Schuurs in these circumstances. They submit that cross-examination at committal is no substitute for cross-examination before the jury, not only by reason of the different impact which reading the cross-examination to the jury must have, but also because counsel's tactical approach to the cross-examination and its content would be quite different at committal from trial.

25 In relation to identification, counsel referred in particular to Alexander v The Queen[12] and Pitkin v The Queen[13]. The dangers inherent in the use of photographic evidence were described in the latter case:

"Nonetheless, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness's recollection of the actual appearance of the offender. Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a `suspect' who `looks like' the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender. Yet another danger from the point of view of an accused is that a witness's evidence that she identified a photograph of the accused which was in the possession of the police may suggest to the jury that the accused either has a criminal record involving the relevant kind of crime or is otherwise unfavourably known to the police as a person likely to commit that kind of crime."[14]

In like vein, Gibbs CJ said, in Alexander v The Queen:

"There are, however, two grounds of objection to the proof of identification by means of police photographs. In the first place, the accused will of necessity be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question."[15]

26 Before considering these submissions, it is necessary to identify the nature of the discretion or discretions which I am called upon to exercise. I do not propose to do so at length, since counsel did not deem it necessary to refer to many of the cases in argument. No distinction was drawn in argument between the discretion to exclude evidence on the ground of unfairness and what I shall call the probative/prejudicial ground of discretionary exclusion.

27 The two discretions were discussed by the High Court in R v Swaffield[16]. However that discussion took place in the context of confessional evidence. As the South Australian Full Court has pointed out, the thrust of High Court statements appears to confine the operation of the fairness discretion to the realm of confessional statements[17]. On the other hand, the purpose of that discretion is the protection of the rights and privileges of the accused, including procedural rights[18]. It would be odd if such a purpose were to be fulfilled only in relation to confessional statements. As the South Australian court pointed out, the suggested limitation has not been applied at appellate level in New South Wales[19] and Victoria[20]. More importantly for present purposes, it has not been applied in Queensland: R v McLean and Funk, ex parte Attorney-General[21]. Until something more definitive emerges from an appellate court, I am bound by this decision.

28 Second, it is in my view clear that historically, the unfairness discretion has been treated as something separate and distinct from the probative/prejudicial discretion[22]. The task involved in the exercise of the former discretion does not require the weighing of probative value against prejudicial effect[23]. Rather, the fairness discretion seems to focus exclusively on fairness to the accused, not fairness to the prosecution, the victim if any, or the witnesses[24]. This is not the place for a discussion, sophisticated or sophistic, of whether such an isolated concept of fairness or unfairness is possible, nor whether such a focus is desirable.

29 Third, although the unfairness discretion is not restricted to ensuring a fair trial[25], it certainly relates to that right[26]. In Police v Jervis, Doyle CJ said, "I stress that the court is not concerned with fairness considered at large, with some broad idea of fair play or with whether forensic contest is an even one."[27] In that case, the court was concerned with possible unfairness resulting from non-compliance with statutory rules governing the acquisition of the relevant evidence. In the present case, I am concerned with unfairness which it is said will result from the combination of inherent unreliability in the evidence and the lack of opportunity for cross-examination. This is a forensic disadvantage, but having regard to the fact that the purpose of the discretion is to protect rights, it would in my view be possible to exercise it in such circumstances.

30 Fourth, because the argument in the present case focuses on the combined effect of the alleged unreliability of the evidence and the inability to cross-examine the witness before the jury, it is unnecessary to consider the debate about whether mere unreliability, as perceived by the judge, is sufficient to justify the exercise of the discretion.[28] One dictum is, however, worth citing:

"The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge's directions concerning the considerations, both general and particular, affecting its reliability, including of course in an appropriate case the matter of corroboration. Trial judges must be at pains to ensure that the discretion to exclude admissible evidence on the ground of unfairness is not used (contrary to Doney) to withdraw a case from the jury on the footing that any conviction would be unsafe or unsatisfactory."[29]

At the same time is must be remembered that "unreliability is an important aspect of the unfairness discretion" - it "may be a touchstone of unfairness".[30]

31 Finally, there is the obvious point that there will be many factual situations where the two discretions will overlap. In Rozenes v Beljajev, the court cited the example of inability to cross-examine the deceased maker of an admissible statement as such a case[31].

32 I turn now to an evaluation of the possible unfairness in the use of Mr Schuurs' evidence. The only manifestation of unfairness argued by counsel was the risk of an unfair trial. The first point to be made is that whatever unreliability exists is patent; there will be no inhibition on drawing a jury's attention to it. Most of the matters of unreliability have in fact been the subject of cross-examination at committal, and that cross-examination will be read to the jury if the evidence is not excluded. Of course, one cannot deny the possibility that cross-examination might have produced more benefits for the defence. I accept the point that cross-examination conducted at committal has different aims and uses different methods from that conducted at trial. Nonetheless, nothing much springs to mind on reading the depositions. Indeed, there is some evidence that further cross-examination would be adverse to the interests of the accused. There is no suggestion that the second statement might contain deliberate fabrications and little scope for confusion. Its use would not in my judgment make the trial unfair.

33 Mr Di Carlo, for the accused Schuurs, added a twist to this argument. He submitted:

"I had more access to him than anybody else, he being my client's father, and perhaps I know things that other people don't know, but an opportunity to cross-examine him that I may have chosen to leave for the end of this - not for the committal, but as an element of surprise for this trial here or as an element that may have been examined here which may have left some doubt may have been lost to me."

Later, in a different context, I suggested that the access which he had to Mr Schuurs negated the submission he was then making. The following exchange then took place:

"MR DI CARLO: But that presumes that I had access to him.

MR DI CARLO: Well, of course I have had access to him. It doesn't mean that I have made use of that access, or I am going to tell Your Honour whether I did, or I didn't."

In my view, if an accused person wishes to rely upon special circumstances to argue particular prejudice, it is necessary to demonstrate those circumstances by evidence. The onus of proving that I should exercise my discretion to exclude Mr Schuurs' evidence lies upon the accused[32]. In my view Mr Di Carlo's approach is entirely speculative. I reject it.

34 I have reached the same conclusion in relation to the evidence relating to identification. One of the dangers involved in the use of photographic identification, the fact that it takes place in the absence of the accused, is here overcome by the recording of the whole process on videotape. The videotape is proposed to be tendered[33]. In R v Murphy[34], Pincus JA said:

"I should add that the practice, adopted in the present case, of taking a video record of the witnesses' responses during the process of identification seems a very useful one. A process of identification from a collection of photos, safeguarded from malpractice by being recorded on video, may well be sounder than a lineup without such a safeguard."

I respectfully agree. The videotape has the added advantage that it allows something of Mr Schuurs' personality to show through - the jury may well conclude that he was something of a "character".

35 I have not overlooked the fact that the accused Semyraha was a stranger to Mr Schuurs on 7 March 1998. It seems to me that it is a matter for the jury to weigh this fact up against the fact that Mr Schuurs had ample opportunity to observe "Adrian" over a period of time in a stress-free environment. He made the identification only three days later. Nor have I overlooked the fact that he said, when making the identification, "I'd say it's - these photos are pretty ancient by the look of them, but if anything he was - he'd be ..." as he pointed to the photograph. Again, the jury can assess, in the light of the video, whether Mr Schuurs was likely to have felt that he had to pick someone because the culprit was there. True, he was not cross-examined about this at the committal; but he could have been. I note that, before he was shown the photoboard with Semyraha's photo on it, he was shown a photoboard of female photographs. I infer that Tia Mitchell's photo was included amongst those photos. Whether it was or not, Mr Schuurs evidently felt no obligation to pick a photo on that occasion, nor when he was shown two more sheets after identifying Semyraha.

36 I also take into account the fact that Mr Schuurs made the identification without the use of his glasses. The fact that the accused cannot now test his eyesight through cross-examination (if that is the right way to express it) is an argument in favour of the exercise of the discretion. However there seems to be no reason to doubt the honesty of the identification, and the video suggests that Mr Schuurs did not have undue difficulty in looking at the photographs. The only apparent difficulty arose from his attempt to read Constable Hutchinson's handwriting. It was his success at that task which gave rise to the congratulatory statement criticised in the accused's submissions. That statement certainly does not support the exercise of a discretion and in my view, the failure of Mr Schuurs to use his glasses is not sufficient for a contrary ruling.

37 It must be remembered that this is not a case where the identification evidence is the only evidence linking the accused to the crime. Each accused has made highly damaging confessional statements which have been recorded. Moreover, there is DNA evidence which tends to confirm Semyraha's presence at Mr Schuurs' house and in his car.

38 In my judgment, provided the jury is given a proper warning with regard to the use of identification evidence[35], the course proposed by the prosecution will not produce any real risk of an unfair trial.

39 It is commonly said that a trial judge in a criminal trial has a discretion to refuse to admit evidence if in his or her opinion its prejudicial effect outweighs its probative value[36]. A fuller expression of the discretion was given in R v White:

"It is clearly established by decisions of the highest authority that a judge presiding at a criminal trial possesses a discretion to exclude admissible evidence where the prejudicial effect thereof so far outweighs any probative value it may have as to make it dangerous to admit the evidence."[37]

In Driscoll v The Queen, Gibbs J seems to have adopted the view that the discretion was an example of the unfairness discretion; he thought its exercise particularly called for "if the evidence has little or no weight, but may be gravely prejudicial to the accused."[38] There are other formulations of the rule[39].

40 The prejudice which is referred to in relation to this discretion is not the damage to the accused's case caused by the probative effect of the impugned evidence. "The prejudice ... must ... be a prejudice additional to or distinct from the detriment to the accused's interests involved in the probative force of the evidence."[40] Thus, in what is probably the most frequently cited case in this area, Lord Reading referred to evidence which "might indirectly operate seriously to the prejudice of the accused"[41].

41 It is not clear that cases where there is an inability to cross-examine the maker of a written statement are within the ambit of the discretion[42]. Moreover, the view has been expressed that in exercising the discretion, issues of credit are not to be taken into account in assessing the probative weight of evidence.[43] In R v Hasler, ex parte Attorney-General, Connolly J said, "The suggestion that a judge ruling whether evidence should be admitted should consider whether it is true or false cannot be supported: The King v Lee."[44] In the present case, I need not resolve any of these issues. I am prepared to assume that it is open to me to exercise the discretion in the present circumstances.

42 I am satisfied that it is not appropriate to exercise the discretion unless the accused establish that the probative value of the impugned evidence is very low and also that the collateral prejudice to them is substantial. It is not my function simply to weigh up the probative value of the evidence against its prejudicial effect, according to some personal sense of fairness. As Thomas J observed, "The use of this discretion is not a loose balancing exercise."[45]

43 In the present case, I do not think the probative value of the evidence of Mr Schuurs is so slight as to enliven the discretion. True, it can be criticised; but in my judgment, notwithstanding those criticisms, it is not possible to say that it lacks probative value to the requisite extent. Moreover, the prejudicial effect resulting from having the evidence before the jury without cross-examination of Mr Schuurs is lessened by the cross-examination which took place at committal and the videotape of the identification process. Even if the discretion were enlivened, I do not think that the forensic disadvantage would outweigh the probative value of the evidence or makes its reception unfair.

44 For these reasons, the application is dismissed.

[1] I have viewed the videotape and there is also a transcript of it. The process took place after the second statement was taken from Mr Schuurs.

[2] Query whether this permits the documents to be tendered: see R v Mendham and Foster (1993) 71 A Crim R 382 at 385. If they are tendered, there would seem to be a discretion as to whether they are allowed into the jury room: cf. R v Hibbins, unreported, CA No 276 of 1998, 3 November 1998.

[3] R v Radbourne (1787) 1 Leach CC 457; [1730] EngR 84; 168 ER 330; R v Smith (1817) Russ. and Ry. 339; [1817] EngR 128; 168 ER 834.

[4] R v Tretter (1974) 18 CCC (2d) 82; R v Oda (1980) 54 CCC (2d) 466.

[5] R v Lynch (1979) 2 NSWLR 775; R v Stackelroth (1996) 86 A Crim R 438. See also Attorney-General (NSW) v Jackson [1906] HCA 90; (1906) 3 CLR 730.

[6] [1969] QWN 16 (DM Campbell J).

[7] [1946] QWN 19 (Stanley AJ).

[8] R v Mendham and Foster (1993) 71 A Crim R 382 at p 388; R v Horan [1951] VicLawRp 32; [1951] VLR 249.

[9] R v Lynch (above); R v Stackelroth (above); R v Collins [1986] VicRp 3; [1986] VR 37.

[10] R v Lynch at 778; see also R v Radford (1993) 66 A Crim R 210.

[12] [1981] HCA 17; (1981) 145 CLR 395.

[13] [1995] HCA 30; (1995) 69 ALJR 612. See also R v Murphy [1996] 2 Qd R 523.

[14] [1995] HCA 30; (1995) 69 ALJR 612 at p 615.

[15] [1981] HCA 17; (1981) 145 CLR 395 at pp 400-401.

[16] (1998) 192 CLR 159.

[17] Police v Jervis (1998) 70 SASR 429 at p 442.

[18] R v Swaffield (1998) 192 CLR 159 at 197.

[19] R v Edelsten (1990) 21 NSWLR 542.

[20] Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533.

[21] [1991] 1 Qd R 231.

[24] Compare R v O'Neill [1995] QCA 331; [1996] 2 Qd R 326 at pp 413 ff, per Fitzgerald P. Although this was a dissenting judgment, it has, at least in part, been cited with apparent approval in R v Swaffield (above).

[26] Ibid at p 189. See also the judgment of Kelly SPJ in R v McLean and Funk, ex parte Attorney-General [1991] 1 Qd R 231 at p 236.

[27] (1998) 70 SASR 429 at p 446.

[28] On this point see Rozenes v Beljajev at pp 549 ff and R v Stackelroth (1996) 86 A Crim R 438 at p 453.

[31] [1995] VicRp 34; [1995] 1 VR 533 at p 557. Note that one of the two cases there cited, the Ontario case R v Moore (1973) 17 CCC (2d) 348, seems now to be treated as overruled in Ontario: R v Novalinga (1985) 19 CCC (3d) 190.

[32] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 535 per McHugh J.

[33] There was no argument that the video would not be admissible, despite the theoretical difficulties involved in its tender (see Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, especially per Gibbs CJ at pp 403 ff and Cross on Evidence, Australian edition, at paragraphs [31185] ff).

[34] [1996] 2 Qd R 523 at 525.

[35] Domican v The Queen (1992) 173 CLR 555.

[36] See for example Lord Diplock in R v Sang [1979] UKHL 3; [1980] AC 402 at p 437.

[37] [1969] VicRp 25; [1969] VR 203 at p 206.

[38] [1977] HCA 43; (1977) 137 CLR 517 at p 541. In R v Swaffield, Brennan CJ described this as "a more robust approach to exclusion": (1998) 192 CLR 159 at p 183.

[39] See for example those collected by Thomas J in R v Hasler, ex parte Attorney-General [1987] 1 Qd R 239 at pp 248-9.

[40] R v Duke (1979) 22 SASR 46 at pp 47-8 per King CJ; see also R v Edelsten (1990) 21 NSWLR 542 at p 553; R v Hasler, ex parte Attorney-General at p 251 per Thomas J.

[41] R v Christie [1914] AC 545 at 564.

[43] R v Nundhirribala [1994] NTSC 94; (1994) 120 FLR 125 at pp 152-3.

[44] [1987] 1 Qd R 239 at p 245.

[45] R v Hasler, ex parte Attorney-General at p 251.