T H D v The Queen [2010] VSCA 115

CRIMINAL LAW - Appeal - Interlocutory appeal - Admissibility of evidence - Nature of appeal -Whether appellate court should decide for itself whether evidence admissible -Evidence Act 2008 (Vic) ss 135, 137.

**1 This is an application for leave to appeal under s 298 of the Criminal Procedure Act 2009 (Vic) (the 'CPA') from an interlocutory decision made before the commencement of a criminal trial. The applicant is soon to be tried on counts of aggravated burglary, burglary and theft relating to an incident at a house in Springvale.

2 At issue is the identification evidence on which the prosecution seeks to rely. In circumstances to which I will refer, the victim of the break-in identified the applicant from a photo of him which was included with 11 other photos of Asian males on a 'photo board'.

3 The trial judge rejected a defence application to exclude the identification evidence. Defence counsel sought, and the trial judge gave, a certificate as required by s 295(3)(a) of the CPA in relation to the identification evidence. Because the interlocutory decision concerned the admissibility of evidence, the certificate was to the effect that if the evidence were ruled inadmissible, that would 'eliminate or substantially weaken the prosecution case'.

4 In contradistinction to CGL v DPP (No 2),[1] the certificate given by the judge was, in my opinion, fully justified. The prosecutor told the judge, when certification was under discussion, that the Crown case 'depends entirely' on the identification of the applicant by the victim and that the case against the applicant would accordingly have been eliminated had the evidence been excluded.

5 For reasons which follow, I would grant leave to appeal but dismiss the appeal.

6 Defence counsel, who also appeared on this application, advanced three complaints before the trial judge about the photo board. Those same complaints were advanced in this court.

7 The first and principal complaint concerned the composition of the photo board. It was said that two features of the appearance of the applicant in the photo had the effect of making him 'stand out from the crowd'. (That was the phrase used in the submissions before the judge.) The first feature was that the applicant was, so it was said, obviously much older than most of the others whose photos had been used. The second feature was that, so it was said, he was the only one of the 12 whose photos were used who had long hair or hair tied back.

8 Defence counsel sought to rely by analogy on a series of decisions where photo board evidence was successfully attacked. In each case the complaint which was upheld was that the accused was the only one of those included in the relevant photo board whose appearance had a highly distinctive feature, that feature having itself been an identifying factor in the witness's mind. He referred in particular to R v Fisher,[2] Knight v Brown[3] and R v Blick.[4] In those cases, respectively, the accused was:

• the only person who matched the description of the offender as being of Aboriginal appearance with long hair,[5]

• the only person with a goatee beard.[7]

9 Having heard argument, the judge in her ex tempore ruling said as follows:**

In relation to the alleged discrepancy in the appearance, as I indicated earlier, and this is necessarily a subjective judgement that we all must make, but I simply do not agree with that. I consider whilst there are certainly variations in the apparent ages of the group of individuals on the relevant photo board, I think there has been great care apparently taken in the selection, having regard to the criteria that was given to the police officer at the time.

I do not consider that the accused person is so appreciably older than everyone else and indeed I think there are at least two or three others that could equally be of equivalent or older age, and in particular I point to Photos 10, 7 and probably 5, even 8, I mean it is just difficult - I would not like to age any one of these individuals. I think the criteria that has been principally focussed upon is the actual facial characteristics of which there are very apparent similarities in most of the faces selected, and the criteria of dyed brown-blondy hair.

Now, all of the others in the group of photos probably satisfy that criteria [i.e. dyed-brown blondy hair] even more than the particular photo of the accused person; the length of hair, now some have longer hair than others certainly, and the accused person is shown to have hair - it is not necessarily clear that it is in a ponytail in that photo but he is shown to have hair that seems to be around his neck so it could easily be shoulder length, you cannot tell exactly how long it is but in any event he is shown with probably longer hair than anyone else. But there is a range of features that the person selecting these faces has had regard to, and I would consider the photo board to be a properly constructed photo board in the circumstances and I would not see that there is any particular unfairness in the presentation of that photo board.

**10 With respect, I can see no error in that analysis. So far as it might relevant, had I been in her Honour's position I think I would have come to the same conclusion. Having examined the photo board, or more accurately a colour photocopy of the relevant page of photos, as this court was invited by both counsel to do, I was chiefly struck by the similarities in appearance between the individuals included in the photo montage. Her Honour made a similar comment in the course of argument. As she said, it would be difficult to criticise the composition of this board on the ground that it failed to include persons of similar appearance.

11 Having viewed the photo montage, I do not think - and clearly her Honour did not think - that the applicant, either in age or appearance, 'stands out from the crowd'. In that crucial respect the present case is quite different from the three cases referred to,[8] where there was a very distinctive feature differentiating - and clearly differentiating - the person identified from those others.

12 The second complaint concerned the failure of the police to hold an identification parade. During the record of interview, the applicant appeared to signify that, in relation to the alleged offending the subject of the trial about to begin, he would consent to participating in an identification parade. Later in the interview, however, when he was being asked about alleged offending at two other addresses, he said he would not participate.

13 The prosecutor argued before the trial judge that the latter part of the record of interview was open to be read as evidencing a wholesale change of mind by the applicant, that is, that he was ultimately unwilling to participate in an identification parade in respect of any of the alleged offending.

14 In argument this morning defence counsel conceded, properly in my view, that this reading of the record of interview was open, as I think it clearly was. That being so, it seems to me that this objection falls away. In those circumstances it was open to the police to conclude that there was no consent to an identification parade and it follows that the applicant cannot make good any argument of unfairness from there not having been such a parade.

15 For completeness, I would mention that ss 114 and 115 of Evidence Act 2008 (Vic) (the 'Evidence Act') did not apply here because of the date on which the identification occurred. Those provisions will in due course become applicable to questions regarding visual identification evidence.

Comments by police to the witness before the identification took place

16 The third complaint concerned what the identifying witness was told by police before she undertook the identification. At the committal, the witness indicated that she was told, prior to conducting the identification, that the police had a person in custody. The relevant answers given by the witness at the committal were referred to in defence counsel's submissions before the trial judge, as follows:**

At the committal, [the witness] is asked at p.26 of the depositions, a non leading question from the very top of p.26, "How many police officers were present when you were being shown the photos?" "There were two." "Do you recall who they were, do you know their names?" "They told me but I didn't." "That's OK. What did they say to you about the photos?" "They say if I - if I remember the name and I can point out the man, now he be in locker in the gaol. So if I can recognise him then they can sentence him or something." "So you'd been told by the police that they caught the person?" "Yes." In my submission, that alone, Your Honour, is grounds for the exclusion of the photo board. The police, in my submission, are required specifically not to comment on whether or not someone has been arrested or not.

17 Before the judge, the prosecutor accepted unreservedly that this was 'not a desirable course' for police to have taken. He submitted, however, that it did not warrant the exclusion of the evidence, having regard to the fact that the witness was told nothing about which of the persons on the photo board was the person in custody. The trial judge said in her ruling:

The third [basis] raised was what the police are alleged to have said to [the witness] about having detained somebody in custody. The prosecutor has conceded that that may not have been a prudent or desirable comment to have been made. But again that does not, in conjunction particularly with the instructions which [the witness] acknowledged in her statement was given to her, that kind of comment does not instruct the person that they should or would be making a positive identification. It does not direct somebody to the particular person to identify. So again, the construction of the photo board on the face of it otherwise does not appear to be particularly in error or significantly in error. The comments, as they may have been made to [the witness] and she acknowledges they have been made or were made, in her committal cross-examination, is not a sufficient basis for rendering the photo board itself and the identification from the photo board itself unfair.

**18 Once again, with respect, I can see no error in what her Honour said on that aspect of the argument and I respectfully agree with her Honour's conclusion.

19 It will of course be necessary for the trial judge to give careful directions to the jury about the dangers of the identification evidence which she has ruled is admissible, both generally and in the circumstances of the case.

Objections under the Evidence Act generally

20 Several issues arose in the course of argument which it is unnecessary for us to decide. It is nevertheless appropriate to say something briefly about each of them as they will doubtless fall for decision in due course.

Generalised submissions about unfairness no longer appropriate

21 First, now that the Evidence Act is in force, it is in my opinion inappropriate for objections of this kind to be advanced on the basis of a generalised submission about unfairness. As I read the transcript, that is how this matter was advanced before the trial judge, though in this court argument has been appropriately focussed on the provisions of the Evidence Act.

22 As the prosecutor pointed out to the trial judge, an application for exclusion of evidence must now be explicitly based on the relevant provision or provisions of the Evidence Act. The prosecutor correctly identified s 137 as being the provision on which the defence was implicitly relying.

23 Sections 135 and 137 of the Evidence Act are as follows:**

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

**24 The application for leave to appeal has proceeded on the basis that the judge was deciding a question arising under s 137, which provides for mandatory exclusion when the court comes to the conclusion identified in the section. No occasion arises on this application to consider how the balancing exercise in s 137 is to be undertaken - between probative value, on the one hand, and the 'danger of unfair prejudice to the accused' on the other. I simply wish to emphasise that, in the new Evidence Act environment, it is the responsibility of trial counsel - defence and prosecution - to do as the prosecutor sought to do here, namely, to identify for the trial judge the statutory question or questions to be addressed.[9] This will ensure that the court, in deciding the evidentiary or other question, directs itself correctly.

25 Although her Honour did not mention s 137, it seems clear, given the argument that was advanced, that her Honour was addressing herself to the question which she had to answer under s 137. She expressed herself as being firmly of the view that the probative value was not outweighed by the danger of unfair prejudice to the defendant.

26 The decisions I have already referred to, including Blick, do examine to some extent how shortcomings in photo board evidence can be brought to bear on the weighing exercise in s 137.[10] Sheller JA in Blick speaks both of probative value being reduced and 'unfair prejudice' being heightened.[11] The whole topic of what constitutes 'unfair prejudice' for the purposes of these provisions, namely, ss 135 -137, has been the subject of considerable discussion in decisions in New South Wales[12] and in the texts.[13] It is a question, both in general and in its application to this section, which will require careful attention when it is necessary for it to be decided.

Nature of appeals from decisions under s 137

27 Finally, there was argument about the nature of the appeal from a decision under s 137. It was contended by senior counsel for the Crown that, on the preponderance of New South Wales authority,[14] the appeal should be viewed as being akin to an appeal from the exercise of a discretion, such that this Court should regard itself as constrained by the limitations on interference with a discretionary decision, as laid down in House v The King[15] and as constantly applied in this Court in deciding sentence appeals.

28 Defence counsel for his part drew attention to statements in some of the cases to the effect that s 137 is not expressed as a discretion and should not be regarded as one.[16] Accordingly, he submitted, we should 'decide for ourselves' whether the evidence should be admitted or excluded, as required by s 137.

29 New South Wales authority on this point is voluminous and, to some extent, inconclusive. In Blick, Sheller JA said that the balancing exercise mandated by s 137 'is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion'.[17] In R v Cook,[18] Simpson J (with whom Ipp JA and Adams J agreed) said:[19]**

s 137 is not a section that confers a discretion on the trial judge, although the balancing exercise has been said to be "akin" to the exercise of a discretion. S 137 calls for the exercise, not of a discretion, but of judgement. It is in that sense that it is "akin" to the exercise of discretion; whilst there will be cases in which the facts are so plain that they admit of only one outcome, there will be many in which minds may properly differ. The exercise of judgement is not, in my view, akin to the exercise of discretion in the sense that, if the exercise is not performed in accordance with the section, it cannot then be undertaken by an appellate court. This court may, in my view, consider whether the result of the balancing exercise, even if performed having regard to irrelevant considerations, was correct.

30 There have been many subsequent decisions in New South Wales on this issue, and it is unnecessary to refer to these at length for present purposes.[20]

**31 Naturally, if it had been necessary for us to decide this question, we would have done so, but it is a matter of some significance and there is a good deal of case law to be reviewed, to say nothing of the Law Reform Commission reports which bear upon this question. But we can leave this issue for another day since - whether this is a House v The King[21] appeal or a 'decide-for-ourselves' appeal - I would come to the same view. I would mention in passing that the impression which a trial judge forms about a set of photographs for this purpose would seem to be the very kind of thing about which an appeal court should hesitate to substitute its own opinion. But that is, of course, only one example of the kind of question which is likely to arise on an appeal from a decision under s 137.

32 Having regard to the matters set out in s 295(3) of the CPA, I would grant leave to appeal, but dismiss the appeal. The applicant will, of course, retain all his rights to argue a ground of appeal in relation to the identification evidence in the event that circumstances make it necessary for him to do so.

33 I agree and would add only three things. The first concerns the question of whether the judge erred in finding that the applicant's apparent age and length of hair made the photo board unfair. Such a decision was essentially one of fact and degree, and thus of judgment.[22] Whatever be the nature of appellate review of such a decision, it is to be recognised that a trial judge will ordinarily be better equipped to decide the issue than a court of appeal.

34 The second point concerns the question of whether the judge was correct in holding that the photo board identification was not excluded by reason of police failure to arrange an identification parade. Apart from ss 114 and 115 of the Evidence Act, which did not apply in this case, there is no rule of law that a photo**

**board identification is inadmissible just because an identification parade has not been arranged; even where a defendant is directly suspected and police are able to arrange an identification parade.[23]

35 The third point concerns the question of whether the judge was correct in holding that the photo identification was not excluded despite the fact that the police were said to have told the complainant they had a suspect in custody and wanted her to identify her assailant so that he could be sentenced. In the absence of ss 114 and 115 of the Evidence Act that would not be a basis in itself either for exclusion of the photo identification.[24]

36 No doubt, however, the judge will take great care to draw the limitations inherent in the identification evidence, the result of those facts, to the attention of the jury as part of her Honour's Domican directions.

37 For the reasons given by the President and by Nettle JA, I agree that the interlocutory appeal should be dismissed.

1. The applicant have leave to appeal from the interlocutory decision of Judge Jenkins given 7 April 2010.

2. The appeal is to be treated as having been instituted and heard instanter and dismissed.

[1] [2010] VSCA 24.

[2] [2001] NSWCCA 380 ('Fisher').

[3] [2004] ACTSC 35; (2004) 183 FLR 135.

[4] [2000] NSWCCA 61; (2000) 111 A Crim R 326 ('Blick').

[5] Fisher [2001] NSWCCA 380, [23].

[6] Knight v Brown [2004] ACTSC 35; (2004) 183 FLR 135, [20], [22].

[7] Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, [28], [29].

[9] See R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, [47].

[10] See Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, [19]-[29]; Fisher [2001] NSWCCA 380, [17]-[24].

[11] Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, [29].

[12] See, eg, R v Yates [2002] NSWCCA 520; R v Knight [2005] NSWCCA 241; R v Sood [2007] NSWCCA 214.

[13] Stephen Odgers, Uniform Evidence Law in Victoria (2010) Part 3.11; Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence: Annotation and Commentary on the Uniform Evidence Acts (2nd ed, 2009) 655-658.

[14] Cases referred to by the Crown on this point included Vickers v The Queen [2006] NSWCCA 60; (2006) 160 A Crim R 195; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232; Smale v The Queen [2007] NSWCCA 328.

[15] [1936] HCA 40; (1936) 55 CLR 499.

[16] Defence counsel referred to R v Sood [2007] NSWCCA 214, [23]; GK [2001] NSWCCA 413; (2001) 125 A Crim R 315, 333; R v Zhang [2005] NSWCCA 437, [45]; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, [95], [102].

[17] Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, [19].

[18] [2004] NSWCCA 52.

[20] See, eg, Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195; Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232; R v Smale (2007) NSWCCA 328.

[21] [1936] HCA 40; (1936) 55 CLR 499.

[22] R v Nathan Lee (Unreported, New South Wales Court of Criminal Appeal, 5 May 1997).

[23] Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 431-433 (Mason J).