(b) should the Court now follow Shamouil?
41In Shamouil, Spigelman CJ stated at [60]:
"The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility."
42There are a number of points to make in relation to this statement. First, s 137 only requires the court to balance different qualities of particular evidence proffered by the prosecution (namely, probative value and unfair prejudice). It does not require assessment of the proffered evidence by reference to other aspects of the prosecution case. Nor does it require a balancing of the proffered evidence against conflicting evidence likely to be led for the defence: cf R v Cook [2004] NSWCCA 52 at [43] (Simpson J).
43Secondly, the proposition is concerned with issues of "reliability and credibility". It does not deny that an assessment must be made of the "probative value" of the proffered evidence. Rather, the Chief Justice noted the definition of "probative value" in the Dictionary to the Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue": at [61]. He noted that "[t]he focus on capability draws attention to what it is open for the tribunal of fact to conclude": at [61]. He further opined that reference in the definition to how the evidence could "rationally" affect the probability of a fact also directed attention "to capability rather than weight": at [62]. This proposition may be thought ambiguous, in that assessing "the extent" to which evidence could affect the probability of a fact is to assess its weight. Read in context, the reference to "weight" should be understood as a reference to the weight likely to be given to the evidence by the jury, acting rationally. It is that exercise which was rejected at [61].
44Thirdly, adoption of "a restrictive approach" was not intended to exclude all consideration of credibility and reliability. There must be, as the Chief Justice noted, an initial assessment as to whether it was open to a jury acting reasonably to use the proffered evidence in assessing the existence of a fact. If the trial judge were satisfied that evidence could not rationally affect the assessment of the probability of a fact in issue, it would not be relevant evidence and would therefore not be admissible: Evidence Act, ss 55 and 56. That, however, is not the end of the exercise. The extent to which the evidence could rationally affect the probability of a fact in issue involves an evaluative judgment. That judgment is not a forecast of the weight the jury is likely to give the evidence, nor is it a statement of the weight the judge would give the evidence. That is so for a number of reasons. For example, the evidence is being assessed in isolation: its ultimate weight will often depend upon circumstances not yet fully revealed. Were that not so, a different assessment might be made depending on the stage at which the question of admissibility was determined. Often it will be determined on a voir dire before the trial properly opens. It would be most unfortunate if the prosecution were required in some manner to call the whole of its case to demonstrate the probative value which the evidence, seen in context, would provide. Further, even if some overall assessment were required, as may be necessary in applying the s 5F(3A) test, it is likely to be undertaken, properly, on the papers and not by calling oral testimony.
45Fourthly, the reasoning in Shamouil should not be extracted from its factual context. Mr Shamouil was charged with shooting a Mr Dawood (the victim). Shortly after he was shot, the victim provided a detailed description of the shooter to police. Less than three weeks later, he identified the shooter from a board containing 20 photographs. He later made a statement retracting his evidence. If his evidence had gone to a jury (as it did), there would have been issues as to credibility and as to the reliability of identification evidence, with its notorious difficulties. It was in this context that Spigelman CJ sought to focus on "what it is open for the tribunal of fact to conclude" and reject consideration of "what a tribunal of fact is likely to conclude": at [61].
46Fifthly, Spigelman CJ did not deny the need to assess the probative value of the evidence, taken at its highest, for the purpose of the "weighing" exercise prescribed by s 137. When discussing unfair prejudice, the Chief Justice referred to the following passage in the judgment of McHugh J in Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]:
"It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. ... It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."
47The Chief Justice then noted at [74] in Shamouil:
"[the trial judge] said that 'juries can be seduced by unreliable identification evidence'. It was this which his Honour identified as constituting the 'real danger of unfair prejudice'. In this analysis his Honour makes no reference to the warning about unreliable evidence under s 165. Such a warning must be taken into account before drawing the conclusion that such prejudice as may arise would be 'unfair'."
48Two factors are apparent from these passages. First, in carrying out the "weighing" exercise, it would be necessary for the trial judge to consider where the prosecution evidence fell on a scale of probative value ranging from strong to weak. Secondly, the unreliability of the evidence was a factor to be weighed on the other side of the scale, together with the likely effectiveness of warnings about the nature of such unreliability. In effect, Shamouil requires careful attention to the language of the statute and the exercises required to be undertaken: the judgment must be read as a whole. The prosecution is entitled to have its evidence assessed according to its capacity to support the prosecution case, which is not to say that the reliability of the evidence may not be a factor, at least in some cases, in applying the test provided in s 137.
49The discussion of Shamouil in Dupas (2012) tended to extract and address the early passages (as to removing credibility and reliability from the assessment of probative value), as if they denied the need to assess probative value for the purpose of the weighing exercise. That Spigelman CJ undertook this task is not in doubt; what he did not do was determine whether the jury would reject the retraction (the credibility issue): at [78]. It may be noted that the term "credibility" has both a common meaning and a statutory meaning. Its common meaning (or one such meaning) is whether the witness is to be believed. That is often distinguished from the question whether the evidence, objectively considered, is plausible. Thus, plausibility may well affect an assessment of credibility, but will leave open a conclusion that the witness genuinely believes that he or she is telling the truth but the evidence is objectively implausible. The statutory definition of "credibility", on the other hand, when applied to a witness, includes "the witness' ability to observe or remember facts and events", the subject of the evidence. This latter element would often be defined as "reliability", which suggests that in the statements in Shamouil, "credibility" was used in some more limited sense.
50To understand why Dupas (2012) held Shamouil clearly wrong it is convenient to set out the principles articulated by the Victorian Court at [63]:
"(a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority.
(b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.
(c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase 'taken at its highest' is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable.
(d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.
(e) So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not.
(f) Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function."
51As Shamouil was held to be "manifestly wrong", it is also necessary to determine the point of departure identified in these principles. There appears to be one point only, which appears in paragraph (c). Whilst accepting that the trial judge must assume that the jury will accept the evidence to be truthful [perhaps a reference to "credibility" in the sense used in Shamouil] the judge is nevertheless "not required to make an assumption that its reliability will be accepted". The next sentence, dealing with the use of language in a "no case submission" context, is beside the point. However, if (c) is an introduction to the exercise identified in (d), it is by no means clear that even this point is a significant difference between the Dupas principles and Shamouil, read in full.
52Paragraph (d) addresses the "weight" which the jury "could", not "would" or "will", give the evidence. That statement is consistent with Shamouil and appropriate as far as it goes. However, the second limb of s 137 requires an assessment of "the danger of unfair prejudice to the defendant". The possibility of prejudice could extend beyond giving the evidence undue weight and may extend to compelling (in a practical sense) the accused to give an explanation in the witness box which will reveal prejudicial information not part of the prosecution case. An example would be evidence of flight from police, which might be relied upon as giving rise to an inference of consciousness of guilt of the offence charged, whereas the alternative explanation might involve revelation that the accused feared arrest for an entirely separate offence: see R v Cook, above at [42].
53In truth, the statement of principles was probably not intended to be read as comprehensive. In a case of conflicting inferences, at least where one inference gives rise to a risk of unfair prejudice and the other supports the prosecution case, Shamouil and Dupas (2012) are to similar effect. The Court in Dupas stated at [114]:
"As Domican v The Queen [[1992] HCA13; 173 CLR 555] illustrates, a primary consideration which informs the exercise of the discretion is that the dangers of possible misuse by the jury of such evidence will ordinarily be able to be addressed by the giving of appropriate directions by the trial judge. Deficiencies in the evidence do not, in most circumstances, lead to exclusion, either because of the weight that could properly be given to it or because directions would remove, or reduce, the risks of prejudice or a combination of the two."
See also at [142].
54Further, one curious omission from the analysis of common law principles undertaken in Dupas (2012) was the discussion in an earlier judgment of the Court in respect of the same evidence which had resulted in a retrial and second conviction, being the subject of Dupas (2012). Thus, in The Queen v Dupas (No 3) [2009] VSCA 202; 198 A Crim R 454 ("Dupas (No 3)"), a Court comprising Nettle, Ashley and Weinberg JJA had unanimously concluded that the refusal of the trial judge to exclude the same identification evidence was not erroneous. The discussion of that particular ground appears in the judgment of Weinberg JA. (A retrial was ordered on other grounds.) After noting the existence of the discretionary power to exclude evidence, Weinberg JA continued:
"259 It is important to note that the only basis upon which the identification evidence was sought to be excluded was the Christie discretion. However, even assuming that there was a question as to the reliability of some of that evidence, it is by no means clear that that would trigger the operation of that discretion.
260 In R v Peirce, Vincent J (as he then was) considered some of the authorities bearing upon the exercise of the Christie discretion in relation to evidence said to be unreliable. His Honour did so in the context of testimony sought to be led from an unindemnified accomplice of the accused. He accepted the theoretical possibility that such evidence could be excluded in the exercise of this discretion, but said that the occasions upon which that might occur would be few and far between. Normally the issues raised would be left to the jury as matters of credibility for their determination.
261 A similar conclusion was reached by the Victorian Full Court in Rozenes v Beljajev, where it was said that there was no example, of which the Court was aware, of the actual exclusion of the evidence of an accomplice on the sole ground of its unreliability."
262 There are many instances in the cases of identification evidence that could be said to be suspect having nonetheless been admitted. As will be seen, Domican v The Queen provides a paradigm example. The safeguard against the possible misuse by the jury of such evidence is normally the giving of appropriate directions by the trial judge."
55Weinberg JA then cited a lengthy passage from the judgment of Gleeson CJ in Festa which demonstrated why it was that questions of weight and reliability were generally not critical in relation to admissibility. The Chief Justice stated in part:
"Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is 'weak', and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility."
56Although dealing with a common law discretion, the reasoning in Dupas (No 3) provided significant support for the analysis accepted in Shamouil.
57There are other respects in which the reasoning in Dupas (2012) must be approached with care. Rather than commencing with a consideration of the terms of s 137, the analysis first undertakes a lengthy dissertation on the "position at common law": at [69]-[142]. The analysis covers a range of case law applying "the Christie discretion", derived from the decision of the House of Lords in R v Christie [1914] AC 545. In discussing the language of s 137, the Court concluded at [164]:
"It is presumed that a statute is not intended (in the absence of express words) to alter common law doctrines. A strict reading and careful scrutiny of the language of the Act is therefore necessary, in order to determine whether it was the will of the legislature to remove or encroach upon those doctrines."
58Four authorities were cited to support that proposition, namely FCT v Citibank Ltd (1989) 20 FCR 403, 433 (French J); Bropho v State of WA (1990) 171 CLR 1, 18; Coco v The Queen (1994) 179 CLR 427, 437 and Ballog v ICAC (1990) 169 CLR 625, 635. However, those cases do not demand that a strict reading and careful scrutiny of statutory language is required in order to determine whether the legislature has sought to alter "common law doctrines". The cases establish a far more limited proposition, namely that express language is required to abrogate or curtail "a fundamental right, freedom or immunity", on the basis that the courts "should not impute to the legislature an intention to interfere with fundamental rights": Coco at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). As explained by McHugh J in Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290, at [28], no such assumption can operate uniformly in respect of common law principles more generally.
59The Court in Dupas (2012) then concluded that an examination of the Act revealed "no such intention" to vary the common law: [164]. That is a curious conclusion in respect of "the Christie discretion". Section 137 does not confer a power to exclude in the discretion of the court: rather, it obliges exclusion in prescribed circumstances, which require an evaluative judgment by the court.
60The Court in Dupas (2012) noted the discussion in Shamouil at [77] and reached a similar conclusion itself at [176]-[177]. It did not, however, consider whether this reading might lead it to qualify what it had treated as an absolute and unqualified exclusion of any reference by the trial judge to questions of reliability. Had further consideration been given to such matters, the apparent differences perceived in the statements of Allsop P in DAO v R [2011] NSWCCA 63 at [98]-[99] and of Bathurst CJ in DSJ might have been resolved: Dupas at [209]-[211].
61Once it is accepted that the Evidence Act has changed the common law in a significant manner, attention must be paid to the language of the statute as the primary source of the law: Papakosmas v R [1999] HCA 37; 196 CLR 297 at [10] (Gleeson CJ and Hayne J); [46] and [51] (Gaudron and Kirby JJ); [74] (McHugh J).
62On the facts of Shamouil, the jury would be asked, if the evidence were admitted, to choose between an apparently clear and firm opinion of the witness as to who his assailant was and what he looked like and his subsequent retraction. As the Chief Justice noted, a jury "could well take the view that the attempt to retract the identification evidence was unconvincing and a manifestation of either a threat of reprisals or of a desire, within a close knit ethnic community, to resolve matters amongst themselves, without the interference of the State": at [42]. It was the resolution of that dispute that the Chief Justice correctly held was a matter for the jury and not for the trial judge, even on an assessment under s 137. However, to suggest that Spigelman CJ rejected as inappropriate any reference to the weight of the proffered evidence, if accepted, was to mischaracterise what followed in a consideration of the "weighing" exercise, at [70]-[78]. Thus, Dupas (2012) erroneously treated Shamouil as concluding, inflexibly and without qualification, that the weight of the evidence was irrelevant.
63The judgment of Weinberg JA in Dupas (No 3) was discussed in Dupas (2012), without adverse criticism: at [234]-[235]. The Court further noted that the trial judge on the retrial had correctly observed that a different approach was required under s 137, which "did not involve the exercise of any discretion and that, if the statutory requirements were met, the evidence must be excluded": at [237]. The trial judge had then reassessed the evidence as presented before her and come to the same conclusion as the Court of Appeal under the common law test, namely that none of the identification evidence should be excluded under s 137. In Dupas (2012), the Court of Appeal stated at [240]:
"Her Honour did consider the asserted infirmities of the identification evidence of each witness. She agreed with, and adopted, the conclusions of the Court of Appeal concerning that evidence, which included findings that the evidence of [two witnesses] was weak. That conclusion rested upon a consideration of the matters that affected the reliability of their identification evidence. ... But the trial judge also rejected the contention that there was a risk that the jury would give such evidence more weight than it deserved. Furthermore, her Honour explicitly stated that she was satisfied that appropriate directions could be given in relation to each of the pieces of identification evidence which would be sufficient to avoid any unfair prejudice. Thus, notwithstanding her understanding that the preponderance of authority restricted the extent to which she could take account of the reliability of the evidence, her Honour approached the balancing task in the same manner as had the Court of Appeal. The trial judge took account of the weight that could properly be assigned to that evidence and concluded that there was no danger that it would be given greater weight or that it would not be addressed by appropriate directions."
64The Court of Appeal found no error in this approach, despite the adoption of the "restricted" view to the way in which a trial judge should assess reliability. The Court of Appeal then noted that, on its own authority, it was necessary for the Court to "decide for itself whether the decision under s 137 was correct": at [241]. Without undertaking any different exercise from that undertaken by the trial judge, the Court expressed its agreement with her conclusions. It is therefore far from clear that Dupas (2012) in fact adopted any different approach from that which would be adopted in this Court.
65It being also doubtful as to how far Dupas (2012) departed from the principles stated in Shamouil, read in context, and because the present case raises a slightly different issue from either (not being concerned with identification evidence) there is no compelling reason to depart from the general approach accepted in Shamouil.