SA (a pseudonym) v The King [2025] VSCA 300

For the reasons that follow, we consider that this proposed ground is without merit and that leave to appeal against conviction must be refused.

SA (a pseudonym) v The King [2025] VSCA 300 | Case summary | Zoe

[4]

As indicated above, there was a great deal of evidence - other than the impugned evidence - which served to identify the applicant as 'male 8'. It is necessary to have a basic understanding of the main aspects of the prosecution case presented at trial.
The prosecution placed significant reliance on evidence as to the location of the applicant's, and the co-offenders', mobile telephones. This evidence was quite detailed. In very brief summary, that evidence was consistent with the eight accused having travelled together from Tarneit, in Melbourne's west, to Reservoir; and, in particular, to the vicinity of the party described above, at or about the time of the murder.
There was also evidence, as alluded to above, from HP that she was expecting the applicant to arrive at the party. The prosecution contended that CCTV footage taken from nearby to QM's premises in Tarneit showed the applicant exiting those premises, with others, and then entering the stolen Mazda. The applicant was said to be in possession of a large knife. It was also contended that the CCTV footage of 'male 8', whilst he was attacking the deceased, revealed this person to be wearing a distinctive Nike jacket. There was no issue that the applicant had been wearing a jacket of this general description earlier in the evening.
The prosecution relied, further, on various pieces of post-offence conduct engaged in by the applicant. Conduct of this nature included the applicant: setting up an 'Aus Passport' account; obtaining a passport photo; searching the internet for 'my passport sign-in'; accessing the Australian Passport Office website; composing 'rap' lyrics (which referred to the offending and the deceased); discussing with a co-accused the arrests of certain associates, as well as the location of the CCTV camera, and why it was that he had not been arrested; and telling lies in his recorded interview with police.
The applicant did not dispute at trial that he may have been in the general vicinity of the murder, in Reservoir, at the time of its commission. The applicant did not give evidence. He argued that the prosecution could not establish, beyond reasonable doubt, that he was 'male 8'. A reasonable hypothesis consistent with innocence relied on by the applicant was that he had been in a second car - a car other than the stolen Mazda - that was in the general vicinity of the murder; and that he had been at that location for the innocent purpose of collecting HP. The defence argued that the jacket that could be seen on the CCTV footage worn by 'male 8' was an item of apparel commonly worn by young persons. And, in any event, it was contended that the particular colour of the jacket worn by 'male number 8' was not able reliably to be discerned from the relevant footage taken at the scene.
TH's representations to police on 14 March were, so the applicant argued, the sole item of evidence that placed him in the Mazda. This was a matter of some significance, so the applicant contended, given the close connection of the Mazda to the commission of the crime.

[15]

Senior Constable Taylor arrived at the crime scene shortly before 2:45 am. Senior Constable Healy arrived shortly thereafter. There they found TH. SC Taylor was also wearing a BWC that she operated in order to record her interactions with TH.
SC Taylor commenced speaking with TH within minutes of arriving. The BWC footage depicts her speaking to TH for a period of approximately 20 minutes. She is able to converse in a coherent manner with TH; and it appears that TH is able to walk without any difficulty. TH appears lucid.
At the commencement of the BWC footage SC Taylor can be heard to ask TH what happened, and where he is from. TH replies: 'Collingwood - all my boys are from Heidelberg.' SC Taylor then asked TH what happened here tonight and TH answered that he left a party, was walking out to a car and 'n*****s' pulled up. TH stated that the persons he encountered asked him, 'Are you [TH]?'. TH then stated, 'And then bang I didn't know what happened. I just ran off.'
TH told SC Taylor that he ran away from a car, and that he lost KH and the deceased. TH said that he did not know where the deceased went. He said that when he returned to Horton Street he found police with the deceased. TH denied that the deceased was part of a gang or had any issues with people.
SC Taylor then asked TH what car he saw. TH answered: 'I don't know. It was dark and it was black and all I could see - two people jump out of the window - and say [TH] and start chasing ... start chasing me.' SC Taylor asked TH, 'Do you know who did this?'. TH responded, 'If I would - you would see about it. ... Legit - I came out the front door - I see someone come out that window and put their hand over the roof. That was it, all I saw. It was a black person, that's the only description.'
TH told SC Taylor that he was running because he was going to be stabbed. SC Taylor then said to TH, 'You know what's going on - your mates ... not in a good spot right now so you may as well tell us what's happened.' TH responded, 'I'm no snitch - if I could explain - who these people were I would - it was a full car definitely, not too big - I saw a bunch of black people - I saw one with the hand and could barely - a medium size car - black matte.'
TH confirmed that the car that he saw was not at the party. SC Taylor then said to TH, 'The less you tell us, the worse it will be for you and for your mate.' TH stated, 'I'm not going to snitch', to which SC Taylor responded, 'You're not snitching, you're helping us figure out what's happening.' TH answered, 'That's snitching. I don't do that.'
SC Taylor then muted the sound recording facility connected with her BWC. This occurred at approximately 10 minutes and 35 seconds into the recording. She said in evidence that she did this in order to encourage TH to be more forthcoming with information. She said she wanted to build trust with TH, hoping that he would reveal the identity of offenders quickly or provide information that would help police. SC Taylor said that TH did not disclose any other information regarding the incident whilst the BWC was muted. The muting lasted for approximately eight minutes.
Soon after TH was told that the deceased had died, the BWC footage revealed that SC Healy approached TH and said, 'We need to know what's going on.' TH responded, 'I don't know who done it. Otherwise, I would have been telling you right now. I just saw a car pull up - black people jumped out - I ran.' TH said to SC Healy that he did not know why the car with the people in it turned up. He told SC Healy that he did not want to talk about this stuff because 'my brother just died' and that 'I don't care about that stuff'.
The BWC footage showed TH to be quite distressed after having been informed of the deceased's death.
SC Healy gave evidence that he had contact with TH at the crime scene between 3:13 am and 3:58 am. He agreed that TH was distressed. But he said that he understood what TH was saying. He agreed, however, that TH did not always give responsive answers to questions asked.
SC Healy said that there was some initial reluctance on TH's part to provide information or a statement. He said that once he had explained to TH the importance of his account TH began to speak more freely and provide a narrative of what happened.
SC Healy initially observed TH walking around the scene. He took an initial verbal account from TH. He then ushered TH into a police vehicle. This was to take a statement. SC Healy said that TH was reluctant to give a statement. SC Healy confirmed that he commenced writing a statement based on what TH was telling him; but TH refused to complete the statement, or sign it. This was after TH was told that the statement could not be anonymous. TH said that he did not want to be a snitch.
The final part of TH's incomplete and unsigned statement recorded him having said that, at the party: 'Me, [the deceased] and another guy [KH] were the only ones left. The three of us leave ...'.
TH got out of the police car twice whilst SC Healy was trying to take his statement. As SC Healy described it:

[25]

LSC Ryan said that an unknown female voice interjected from inside the father's house and told them to leave. TH's father said that it was time for him and DSC Ferguson to go.
LSC Ryan's evidence was that when he spoke to TH, on 14 March, he was able to understand TH very clearly. He said that it appeared to him that TH was able to understand what he was saying. LSC Ryan said that TH was responsive to the conversation being conducted.
LSC Ryan said that towards the end of the conversation TH presented a mobile phone with the Instagram application displayed. There was a photograph on an Instagram page that related to a certain user. LSC Ryan understood that this was that particular person's Instagram page. There were two males depicted in the photograph, and TH identified one of them as [the applicant's nickname]; namely, the person that TH had been referring to.
LSC Ryan confirmed that there were two males depicted in the photograph and that the one TH was referring to as [the applicant's nickname] was the male wearing the black hat with what appeared to be an 'SF' emblem in orange writing on the front. This individual was holding what appeared to be headphones in his right hand. LSC Ryan said that TH held up his phone for him to look at. LSC Ryan did not touch the phone, but the image was on the screen and LSC Ryan was able to take a photograph of the image as TH was showing it to him.
During the conversation with TH, and while he was being shown the photograph, LSC Ryan said that he made a note that, on the Instagram post, the person in the black 'SF' hat was 'tagged' as '[the applicant's nickname] ... and an underscore'.
LSC Ryan said that when he asked TH whether these males said anything, or used any words, his recollection was that TH said that they were screaming his name.
When cross-examined, LSC Ryan agreed that, prior to speaking with TH, he had been given a brief summary concerning information known to investigators up to that point. Such information included knowledge that those who had chased TH, and his companions, on Nocton Street were known to the persons chased. It also included information to the effect that KH knew that the persons who had chased them were from the Tarneit area or the western suburbs.
LSC Ryan confirmed that he was the designated note taker, and that while writing his notes he used abbreviations. On some occasions, he said that he paraphrased. At other times, he didn't. LSC Ryan agreed that the entry 'something on the block' was a direct quote. The entry, 'wouldn't explain why there was a beef' was LSC Ryan's interpretation, or summation, of what TH had said. LSC Ryan agreed that the entry 'that's your only hint' was a quote. He said that the words 'male that goes by [the applicant's nickname] - I know it was him' was a quote.
LSC Ryan said that he was recording words as TH was using them. He said that it was clear to him, on reviewing his notes, when he was not writing direct quotes because TH was not then speaking in the first person. In other cases it was clearer to him that he was recording a quote. LSC Ryan confirmed that the entry 'the gang is called Nine. They were all from Tarneit' was a direct quote. The entry 'I'm 100% on [the applicant's nickname]' was also a direct quote. He was not sure if the entry 'he was sitting back left' was a direct quote or not. LSC Ryan said that it was clear to him, from the context of the conversation, that TH knew who [the applicant's nickname] was, and that TH was saying that 'it was [the applicant's nickname] who I saw'. As LSC Ryan described it, 'That's as far as I could say.'
LSC Ryan agreed that he did not ask TH whether he had seen [the applicant's nickname] prior to that night in question. Nor did he ask TH if anyone had told him that it was [the applicant's nickname]. He said that he didn't ask TH if he had looked around on Instagram until he found someone who looked like the person that he saw on the night. LSC Ryan confirmed that TH said that the person who was in the photograph on his phone was [the applicant's nickname]. LSC Ryan said that it was TH who showed them the photograph of [the applicant's nickname]. LSC Ryan recalled that he was surprised that TH had shown him the photograph, because he probably would not have asked, 'Do you have a photo of him?'. He believed that it was TH who showed him the 'tag' on the photo; and that TH had 'activated the tag to appear'.
LSC Ryan said that TH was not asked about the lighting in Nocton Street. Nor was TH asked about the distance from which the person was observed. TH was not asked for a description of the clothing worn by the person; nor if the person's face was covered. LSC Ryan said that TH was not asked about the length of time he was able to observe the person in the car. He was not asked whether he saw a full face or merely a profile. TH was not asked if he was drug or alcohol-affected at the time. TH was not asked whether he had seen the person before. LSC Ryan said that he didn't have an opportunity to ask these questions.
In re-examination, LSC Ryan was taken to the part of his notes where it was recorded that TH had commenced making a statement, but had then refused to continue with that process.

[97]

In support of the contention of error on the part of the trial judge, and the inadmissibility of the impugned evidence, the applicant first submitted that many relevant questions, that could have been asked of TH by LSC Ryan and DSC Ferguson, were in fact not asked.
Thus, consistent with the cross-examination of LSC Ryan and DSC Ferguson at trial, it was submitted that TH was not asked - by those police officers - about the circumstances of his identification including whether TH had ever seen [the applicant's nickname] prior to that night; whether anyone had told TH that [the applicant's nickname] was involved; and whether TH had searched Instagram for a photograph of someone he believed to be involved. Nor, it was submitted, was TH asked about the contextual 'lighting, distance and duration' of his observation; or the type of clothing worn by the person he claimed to have seen; or whether the person was wearing a face covering. TH was not asked whether he saw the person's face front on, or in profile; he was not asked whether he was drug or alcohol-affected at the time of the relevant observation.
Much was made by the applicant, in submissions, of other potential sources for the knowledge imparted by TH on 14 March; that is to say, sources other than those connected with what he had seen, heard or otherwise perceived when approached by the car on the night in question. There was, for instance, SC Healy's evidence which was to the effect that he had overheard comments made by friends and associates of the deceased who had arrived at the scene, which led to his opinion that these people believed they knew the identity of the offenders. The applicant emphasised that TH was seen talking to associates of the deceased at the scene.
It was emphasised also that, prior to speaking to TH, other police members had been told that KH knew that the offenders were 'from the Tarneit area of the western suburbs' and that KH knew who was involved but wasn't telling. After all, TH had said in evidence that it was KH who had told him that there were two people in the car.
The applicant emphasised AS Herbert's evidence. AS Herbert had said that he had identified an Instagram account belonging to the deceased where people had commented on particular images. TH said that he was aware of these comments. Indeed, TH had conceded that it was possible that he had been told by friends who they believed was involved in the death.
The applicant then turned to the evidence of TH's cognitive capacity and consequent ability to make observations on the night of the murder. Reliance was placed on TH's evidence concerning his state of sobriety; his ingestion of alcohol and drugs; and his consequent loss of memory. It was submitted that there was objective evidence to support TH's account. Reliance was also placed on SC Keillor's BWC footage which, it was submitted, depicted TH wandering around at the party in a 'daze'. It was submitted that TH, in this state, was in effect 'primed' to make a wrongful identification of the applicant. TH had, after all, been informed at the party of the applicant's impending arrival; and he had been heard at the party to declaim 'fuck the 9ers'.
Emphasis was also placed by the applicant upon TH's evidence that he was reliant upon what he had been told by others.
It was submitted that TH had expressly denied having seen anyone in the back seat of the car that approached him in Nocton Street. And it was contended that there was simply insufficient opportunity, in any event, for TH to have had the benefit of anything more than a 'fleeting glance' of any occupant in that particular vehicle. This was not enough to permit any positive identification.
It was important too, so the applicant submitted, that TH's representation to LSC Ryan and DSC Ferguson that he was '100%' sure that [the applicant's nickname] was in the back of the Mazda was not in the form of a first person narrative. This suggested derivation from another source.
The applicant then submitted - albeit faintly - that the trial judge had reversed the applicable onus when, in her ruling, she observed that 'the evidence does not go far enough to rule out the representations on the basis that the representations are not first‑hand'.[25]
It was submitted that, in any event, the evidence simply did not allow for any conclusion that TH's representations were, or might reasonably be supposed to have been, based upon something he saw, heard or otherwise perceived, other than a previous representation made by another person.[26]

[98]

The respondent submitted that the trial judge was correct to admit the impugned evidence as evidence of first-hand hearsay.
The respondent emphasised the evidential context within which TH's representations were placed. TH was a 'reluctant witness' who had not wanted to be a 'snitch'. It was submitted that TH's evidence at trial was at odds with his ability at the scene, and later, to provide a first-person narrative of what had occurred. Indeed, there was internal inconsistency of this nature in parts even of TH's evidence given at trial. There were, for instance, parts of TH's evidence where he was in fact able to describe - in first-person narrative - what had taken place; and this stood in stark contradistinction to his generalised claim of loss of memory. The CCTV footage from Nocton Street, and SC Taylor's BWC footage taken at the scene, depicted TH as a person well able to walk and talk with adequate facility.
The respondent emphasised that the applicant did not dispute that he was on Nocton Street when the Mazda approached. The CCTV footage betrayed more than adequate opportunity for TH to have made an identification; a process which was - in truth - an act of recognition.
Importantly, so the respondent submitted, at no stage in his conversation with police on the 14th did TH indicate that he had been furnished by others, or that he had gleaned by some means other than his own perception, the knowledge which formed the substance of his representations on that day. Indeed, TH made no such contention even in his evidence at trial. It was submitted that TH was lucid when he spoke to LSC Ryan and DSC Ferguson on the 14th, just as he had been when he spoke to police at the scene. TH's representations of the 14th were, moreover, relevantly recorded as direct quotes and, at times, statements that were couched in the first-person narrative. It was submitted that any suggestion that TH was relaying information he had received from others was - given the relevant evidence - 'speculative and unfounded'.
It was argued that there was a clear basis from which it might reasonably be supposed that the facts asserted by TH, on 14 March 2022, were based on something that he had seen, heard or otherwise perceived; other than a representation that had been made by another person.
The respondent submitted that the applicant's contention that there had been a reversal of the onus of proof was 'misplaced'. It was argued that this particular complaint was predicated upon one sentence in the judge's ruling that was taken out of context. This particular allegation of error, it was submitted, flew in the face of the 'trial judge's clear and accurate articulation of both the threshold and the onus'. As it was put by the respondent, the judge's impugned observation was simply another way of concluding that there was an evidentiary basis from which it might reasonably be inferred that TH's representations were based on something he had seen, heard or otherwise perceived; and that there was insufficient evidence from which any contrary conclusion could be drawn.

[99]

The applicant submitted that the trial judge erred in not finding that the risk of unfair prejudice outweighed the probative value of the impugned evidence.
It was submitted that TH's representations were 'vague and ambiguous' and thus would 'necessarily invite speculation by the trier of fact' thereby causing the applicant significant prejudice. Indeed, it was submitted that the quality of TH's representations, and purported identification, was 'scant'.
Many of the submissions made in respect of the first-hand hearsay issue were repeated by the applicant under this proposed basis for exclusion. For instance, the applicant relied on lack of opportunity due to the 'fleeting' nature of the exchange on Nocton Street and the poor lighting; as well as the evidence of TH's state of sobriety due to his consumption of liquor and drugs.
Reliance was again placed by the applicant upon TH's own evidence that he did not have any memory beyond '11 or 10 that night'; and that he was only able to say anything about subsequent events because of what he had been told by others. It was repeated that TH had given specific evidence that his account of the first interaction with the car on Nocton Street was based upon what he had been told by others.
Again, parts of what TH had said to SC Taylor were relied on to suggest that TH's identification of the applicant was of poor quality.[27]
It was submitted that the applicant suffered unfair prejudice by being unable to engage in effective cross-examination of TH about his representations due to TH's lack of memory. It was argued that there was thus no means available to assess the reliability and quality of TH's purported identification. The lack of any evidence about the circumstances surrounding TH's observations necessitated speculation concerning the degree to which any such circumstance may have impacted upon the reliability of what TH said that he saw.
In oral submissions, the applicant contended that unfair prejudice arose from the trial judge, in the reasons for verdict, having placed too much weight upon the impugned evidence. It was submitted that it was evident that the judge had fallen into error in this regard from what her Honour said at [495] of those reasons.[28] Moreover, it was submitted that at [485] of the reasons for verdict the judge had unfairly overvalued the impugned evidence by wrongfully concluding that an important identifying statement made by TH had been couched in the form of first-person narrative.[29]

[101]

We consider that the trial judge was correct to rule that the impugned evidence was admissible on the basis that it constituted evidence of first-hand hearsay.
HP's evidence, when at the party at Reservoir, suggested that TH either knew - or knew of - the applicant; and knew of him as [the applicant's nickname]. It was candidly conceded at the hearing of the appeal, by counsel for the applicant, that nothing stood in the way - as a matter of evidence - of TH being able to recognise the applicant, so long as there was the opportunity to do so.
It was not in issue that TH was on Nocton Street when the Mazda approached; and there was no question but that he did in fact interact with the occupants of the car. The CCTV footage of this interaction reveals that TH had sufficient opportunity to recognise the applicant as one of the occupants of the Mazda. This footage depicts a period of some 35 seconds from when the Mazda pulled-up to when TH - and his companions - ran off. TH was in sufficient proximity to the Mazda to be able to observe its occupants.
As to TH's cognitive state in the early hours of 13 March 2022, and how TH's condition may have impacted upon his ability to recognise the applicant, it is significant that it was only TH's evidence which described him as having been in a condition so beleaguered, or stupefied, that he was unable to recognise the applicant or at least remember having done so. Whilst there was some limited independent evidence to the effect that TH was affected by drugs and/or alcohol, this evidence did not come close to depicting TH as he came to describe himself in his evidence; namely, as being in a state of such insensibility that it perhaps rivalled the condition of an automaton.
Indeed, to the contrary: the CCTV footage taken at Nocton Street depicted TH as able to walk freely and interact, apparently responsively, with those who were inside the Mazda. And SC Taylor's BWC footage depicted TH in a state of lucidity that appeared objectively sufficient in order to have allowed him to make the sort of observations the substance of which he related the following day upon being visited by police. Whilst this footage does - at times - reveal TH to be in a heightened emotional state, and sometimes even in great distress; it also shows TH to be able to respond coherently to the inquiries that were made of him by his police interlocutors. Neither HP's evidence, nor the evidence of GD - from earlier in the night - detracts in any meaningful way from this. Indeed, TH's claim to have no memory after 11 pm or so, on the night of the 12th, appears (as the trial judge remarked) quite inconsistent with his ability - at other times in his evidence - to provide a coherent, first-person narrative, of events that occurred on Nocton Street.
In short, TH's own evidence concerning his state of intoxication during the period from late on 12 March and into the afternoon of 14 March; and, in particular, his account in essence of complete insensibility due to having been 'laced' with fentanyl; this all strained very much at the bounds of credulity. It was not borne out by the independent evidence; and it was difficult to accept even if taken at face value. That TH's mind could have been in a state of such disorder, even when he was visited by police the following day, was a proposition that was in no manner supported by the evidence of LSC Ryan and DSC Ferguson.
Objectively speaking, the fentanyl explanation - which, in truth, was no more than a hypothesis entertained by TH - bore all the hallmarks of an ex post facto justification of the kind that might be expected of a witness who had relevant information to impart, but who did not want to be perceived as a 'snitch'. The judge was alive to this. Thus the judge described TH, in her admissibility ruling, as a 'reluctant' witness; whereas in her reasons for verdict the judge described TH as 'unreliable'. Given the quality of TH's evidence - as described - there was, we consider, every justification for the judge to have approached TH's evidence in this manner. TH was, after all, required to be subpoenaed to attend court; he had been cross-examined by the prosecutor; and - at one point[31] - he effectively fled the virtual witness box.[32]
TH's statement to SC Taylor that he did not want to be a 'snitch' was made at a point - according to the judge - when it was too early for him to have received material information from an independent source.[33] That particular holding is noteworthy. It implied that TH did have relevant information (that he did not wish to disclose) concerning an occupant, or occupants, of the Mazda, and that such information bore upon the identity of such a person or persons.
LSC Ryan's and DSC Ferguson's evidence was that on the afternoon of the 14th, at TH's father's house, TH did in fact impart information to them concerning the identity of an occupant of the Mazda. TH identified the applicant. TH's identification of the applicant was clear, forthright and supported by the production of a photograph taken from social media. TH spoke to LSC Ryan and DSC Ferguson at times as if recounting a first-person narrative. As the judge noted, TH had the disposition of someone who - notwithstanding his ultimate reluctance as a witness - wished to assist investigators; but someone who did not want to put his name to what he was able to say.
The judge concluded that there was no evidence of TH having discovered the identity of the person he identified as being in the Mazda from a source other than based upon what he saw, heard or otherwise perceived whilst he was in Nocton Street.[34] At its highest, all that could reliably be said was that there was perhaps the possibility for TH to have gleaned such information from another source. Importantly, at no stage - not on the morning of the 13th; the afternoon of the 14th; or even in evidence before the judge - did TH go so far as to positively state that he had discovered the applicant's presence in the Mazda from another source. At most TH seemed ready, only somewhat reluctantly, to concede that so much was a possibility; despite him having no memory of it being the case.
The judge considered that TH's representations amounted to first-hand hearsay 'based on the fact [that those representations] might reasonably be supposed to have been based on something TH saw, heard or perceived' other than a previous representation made by another person.[35] The judge was plainly correct to conclude as she did.[36] Indeed, in light of the evidence that bore upon the question, had the judge concluded that TH's representation were in fact relevantly based upon what TH had seen, heard or otherwise perceived, such a conclusion may well have been justifiable in all the circumstances.
It remains to deal with the applicant's submission that the trial judge inverted the applicable onus. In one sense it may be of no consequence that the judge committed an error of this nature given that the conclusion reached above that the judge's finding concerning first-hand hearsay was correct. Nevertheless, when the impugned part of the judge's ruling[37] is read in context, the contention that her Honour inverted the applicable onus is unsustainable.
At an early part of the judge's ruling, under the heading 'Legal Framework', and after having set out the terms of s 59(1) of the Evidence Act which state the 'hearsay rule', the judge turned to the exception to this rule described at ss 66(1)-(2) and (2A). Having set out those provisions in full the judge observed:

[109]

The trial judge was correct, also, to conclude that the probative value of the impugned evidence was not outweighed by the danger of unfair prejudice to the applicant.
In conducting the relevant assessment, the judge was bound to assume that she, as trier of fact, would accept LSC Ryan's and DSC Ferguson's evidence free of questions that might relate to the credit and reliability of these particular witnesses.[44]
Exclusion by operation of s 137 was premised on the impugned evidence having already qualified as evidence of first-hand hearsay. Given that the impugned evidence potentially cleared the even higher threshold described at s 62(2) of the Evidence Act,[45] it was evidence whose probative value was high.
We do not accept, however, that - as submitted by the applicant - the trial judge placed too much weight upon this evidence, or was in some manner irrationally overwhelmed by it. The judge gave herself the legal warnings that had been sought in respect of this evidence.[46] The judge's conclusion that TH had in fact recognised the applicant as one of the persons in the car was[47] rationally justifiable and did not indicate that she had over-estimated the probative value of the impugned evidence. Nor does the trial judge's finding that TH gave a 'first person account of what he knew and who he identified',[48] when analysed fairly and in context, indicate that the judge had been diverted from a proper and logical assessment of the impugned evidence's connection with the issues in the case.
There is then the applicant's submission concerning his alleged inability to cross‑examine TH about the substance of his representations made to the police officers on 14 March, and the contention that this gave rise to a danger of unfair prejudice that outweighed the probative value of the impugned evidence. The applicant was able to cross-examine TH.[49] In circumstances where TH not only failed to adopt the representations that it was said he had made on the 14th; but where he - at times - sought positively to falsify the factual premises upon which these representations could have been based, it is difficult to see how any difficulty in testing TH's evidence in the manner sought could 'substantially [have] affect[ed] the ability of the trier of fact to rationally assess the weight to be attached to the evidence of the representations'.[50] Thus, at least at one stage in his evidence TH positively denied ever having seen the applicant. And he otherwise seemed to deny that he was ever in a fit state to make such an identification in the first place. TH's evidence was deemed 'unfavourable' to the prosecution; and, in that sense, TH's evidence was of assistance to the defence.

At a glance

Court

Decision date

Before

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Judgment (135 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

SA (a pseudonym) v The King [2025] VSCA 300 (2 December 2025)