Director of Public Prosecutions v Pham

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0073

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
HUYNH PHAM (A PSEUDONYM)	Respondent

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JUDGES:	KENNEDY AND ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2024
DATE OF JUDGMENT:	19 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 266
JUDGMENT APPEALED FROM:	DPP v [Pham] (County Court of Victoria, Judge Hawkins, 10 April 2024)

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CRIMINAL LAW – Interlocutory appeal – Dangerous driving causing death – Dangerous driving causing serious injury – Driver not wearing glasses – Whether evidence that a condition of driver licence required him to wear corrective lenses was admissible – Whether circumstantial evidence that driver had knowledge of licence condition admissible – Whether evidence from optometrist who tested driver’s eyesight 18 days after accident admissible – Whether probative value of evidence outweighed by danger of unfair prejudice – Leave to appeal granted – Appeal allowed.

Evidence Act 2008, ss 55 and 137; Criminal Procedure Act 2009, s 297(1)(b)(iii).

Moore (a pseudonym) v The King [2024] HCA 30; IMM v The Queen (2016) 257 CLR 300, applied.

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Counsel
Applicant:		Ms A Moran
Respondent:		Mr DC Hallowes SC with Mr AJ Patton
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	SLKQ Lawyers

KENNEDY JA
ORR JA:

The respondent faces trial in the County Court charged with one count of dangerous driving causing death contrary to s 319(1) of the Crimes Act 1958 and one count of dangerous driving causing serious injury contrary to s 319(1A) of the Crimes Act 1958.
The charges relate to an incident that occurred shortly before 4 pm on 21 October 2021. The respondent was stopped on Military Road in Avondale Heights at the intersection with McKenna Street, waiting to turn right onto McKenna Street. He allowed a number of vehicles travelling in the opposite direction on Military Road to pass by him. He then turned right into the path of Mr Wilson-Hickey, who was on a motorcycle, riding in the opposite direction on Military Road. The motorcycle struck the front passenger-side door of the respondent’s car. As a result of the collision, Mr Wilson-Hickey sustained serious injuries and his pillion passenger, Ms Quinn, sustained injuries that resulted in her death.
The applicant alleges that the respondent’s driving was dangerous because he failed to keep a proper lookout, or, alternatively, because he was driving with impaired eyesight, in that the condition of his eyesight reduced how well he could see objects at a distance.
The respondent generally does not take issue with the applicant’s case as to the circumstances of the collision, but says that the issue at trial will be whether his driving was dangerous and whether it caused the death of Ms Quinn and the serious injury to Mr Wilson-Hickey.
In order to support its alternative case in relation to dangerous driving based on the respondent’s impaired eyesight, the applicant sought to adduce evidence that the respondent’s driver’s licence was subject to a condition that required him to wear corrective lenses while driving (the ‘S condition’). The respondent accepted that he was not wearing glasses at the time of the collision.
The respondent, who is not a native English speaker, raised an objection to the receipt of the evidence of the S condition on the basis that it was not relevant and that there was no evidence of when and how the terms of the S condition were explained to him.
In response to this objection, the applicant sought to adduce a number of pieces of circumstantial evidence in order to support a finding that the respondent knew that he was subject to the S condition. The applicant also sought to adduce evidence from the respondent’s optometrist, Mr Nguyen, including an eyesight assessment conducted some 18 days after the collision.
In an interlocutory decision on 10 April 2024, the trial judge ruled that evidence sought to be adduced of the S condition; evidence of the respondent’s alleged knowledge of that condition; and the evidence of Mr Nguyen would all be excluded under s 137 of the Evidence Act 2008.
Pursuant to certification given by the judge under s 295(3)(a) of the Criminal Procedure Act 2009 on 10 April 2024, the applicant seeks leave to appeal against this ruling. There are three proposed grounds of appeal:
1.The trial judge erred in ruling that evidence that a condition of the respondent’s driver license, namely, that he wear corrective lenses while driving, was inadmissible.
2.The trial judge erred in finding that, if the evidence of the driver’s license condition was admissible, there was insufficient evidence of the respondent’s knowledge of that condition.
3.The trial judge erred in ruling that evidence of the state of the respondent’s eyesight 18 days after the collision was inadmissible.
For the following reasons, we will grant leave to appeal, and set aside the judge’s decision.

Standard of review

In Moore (a pseudonym) v The King,[1] the High Court identified two relevant standards of appellate review in respect of first instance judicial decisions: the correctness standard and the House v The King standard. The court observed that the House v The King standard applies where the legal criterion that is the subject matter of the appeal ‘tolerates a range of outcomes’, whereas the correctness standard applies where the legal criterion ‘demands a unique outcome’.[2] The court held that the legal criterion under s 137 of the Evidence Act is one which demands a unique outcome.[3]
[1][2024] HCA 30 (‘Moore’).
[2]Ibid [15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ), citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 563 [49] (Gageler J); [2018] HCA 30.
[3]Ibid [18].
In this case, as ultimately accepted by the parties,[4] the standard to be applied is therefore the correctness standard. This standard requires us to determine the correct outcome for ourselves, while making allowance for any advantages that may have been enjoyed by the judge who conducted the hearing.[5]
[4]In their original written submissions both parties focused on whether the judge made an error according to the House v The King standard. However, by correspondence from the Court of Appeal Registry of 2 October 2024, the case of Moore was brought to the attention of the parties. They thereafter accepted that the correctness standard applied.
[5]Moore [2024] HCA 30, [14] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

Circumstances of offending

On 21 October 2021, shortly before 4 pm, the respondent was driving a blue Holden hatch north on Military Road in Avondale Heights. He stopped in a right-hand turning lane at the intersection with McKenna Street. Mr Wilson-Hickey was riding a Triumph motorcycle south on Military Road. As identified already, he had a pillion passenger on his bike, Ms Quinn.
The respondent allowed a number of cars, going south, to pass by him on his right-hand side. He then turned right, towards McKenna Street, and into the path of Mr Wilson-Hickey. Mr Wilson-Hickey dropped the motorcycle on the road and it slid towards the respondent’s car. The motorcycle struck the front passenger-side door of the Holden. As a result of the collision, Mr Wilson-Hickey sustained serious injuries and Ms Quinn sustained injuries that resulted in her death.
A witness in the car behind the respondent is expected to give evidence that he first noticed the bike at about 30 metres away from the impact. When the respondent’s car started turning the witness had ‘clear vision’ of the bike, and there was nothing to hide the bike, which was maybe 20 to 30 metres back from the other cars. He could see the bike ‘clearly’.
It will be alleged at trial that the respondent told bystanders at the collision scene: ‘I didn’t see them. They came too quick.’ He also told police at his interview that he was waiting to turn right and then ‘all of a sudden’ heard a ‘loud bang’. At one point, he told police that the first time he saw the motorbike was when he got out of his car.

Evidence

Evidence of the existence of the S condition is contained in an image of the respondent’s driving licence captured on the body worn camera footage taken by a police officer at the scene of the collision. On the front of the licence appears the letter, ‘S’, under the word ‘CONDITIONS’. On the reverse side, under the word, ‘[C]ONDITIONS’, the words, ‘[c]orrective lenses to be worn while driving’, appear, although the words, ‘corrective lenses to be worn’, are partially obscured in the image by the month of the respondent’s birth. The respondent accepts that records held by VicRoads show that his licence is endorsed with the S condition which requires him to wear corrective lenses whilst driving.
In order to establish that the respondent had knowledge of the S condition at the time of the collision the applicant relied on five categories of evidence which are detailed below.
First, there is a document titled ‘Licence or learner permit application’ dated 2 April 2020, which the respondent needed to complete in order to effect the transfer of his New South Wales driver’s licence to Victoria (‘Victorian application form’). The Victorian application form contains a series of typewritten questions, as well as responses completed in handwriting in English. It appears to be also signed by the respondent (as ‘applicant’), as well as an authorised officer. It:
•provides an email address which was utilised by the respondent in subsequent communication with VicRoads;
•contains the handwritten response, ‘NO’, in response to a question as to whether the respondent was suffering from any serious illness, disability, medical condition or injury (which included ‘eyesight or hearing problems’);
•records that the respondent undertook a vision test as part of his application and wore corrective lenses during that test;
•records that the S condition was to be applied to his licence.
Second, there are documents produced on subpoena from the Department of Transport for NSW which relate to licences previously held by the respondent in New South Wales and in New Zealand. They indicate that:
•a condition substantially similar to the S condition appeared on both licences;
•the applicable condition was clearly visible on the New Zealand licence which was issued in November 2008;
•the respondent confirmed in an application form in respect of his New South Wales licence dated 20 May 2019 that he would be wearing glasses when driving or doing the eyesight test (by the ticking of relevant boxes);
•the respondent was given an eyesight test, and that he passed that test ‘with glasses or contacts’.
The third category of evidence was from Mr Stal, who gave evidence about the business practices adopted by VicRoads in relation to applications for a licence.[6] Mr Stal is employed as a regional manager in the Central Western Region at VicRoads. He is responsible for ensuring that all customer service officers are trained in, and comply with, various VicRoads rules and instructions when completing driver licence and/or permit transactions for customers.
[6]The applicant also made reference to evidence of Jocelyn Martin contained in a statement dated 13 September 2023. However, counsel stated that the applicant would not seek to adduce this statement as part of its case, but would only rely on it if necessary in rebuttal. Given the matter was otherwise not addressed it is appropriate to leave this issue to the trial judge, having regard to these reasons.
Mr Stal’s proposed evidence is that he did not have prior knowledge of the respondent’s particular transaction in obtaining his Victorian licence, but was ‘confident’ that the relevant customer service officer would have followed the applicable rules. These rules include that the officer would confirm any conditions attached to the licence with the applicant in the final stage of the licence application process. In respect of customers whose native language is not English he stated:
In terms of Customers whose native language is not English, Customer Service Officers are trained to utilise a combination of hand gestures, ‘Google Translate’ or other person(s) that may come in with the Customer at the time, such as family and friends or another Customer Service Officer who may speak the Customer’s native language to explain the personal particulars on the Data Card and whether the driver permit or licence is issued subject to any conditions.
Fourth, the applicant relied upon documents said to demonstrate that the respondent had a sufficient understanding of English to comprehend the nature of the S condition. Hence, the applicant relied on a bundle of documentation produced on subpoena to VicRoads. This bundle contains emails and correspondence between the respondent and VicRoads from a date subsequent to the collision at which time the respondent sought to lift a suspension which was placed on his licence. As indicated already, the email address identified in the Victorian application form was utilised, and the communications were all in English.
Fifth, the applicant relied on an alleged admission contained in the respondent’s record of interview with police dated 21 October 2021. At that time the accused was asked: ‘Are you supposed to wear glasses while you drive?’, to which he responded: ‘Only when I cannot see the road at night do I have to wear glasses. But I don’t drive at night.’
As well as these five categories, the applicant also relied on evidence of Mr Nguyen. This evidence was generated as a result of the respondent’s attempts to lift the suspension of his licence that occurred following the collision (and was subsequently obtained by the applicant from VicRoads).
In correspondence dated 7 March 2022 Mr Nguyen stated:
[The respondent] was treated at this practice from 08/11/2021 to 23/11/2021. He is diagnosed with myopic degeneration which means he becomes more myopic with age. New glasses has [sic] been prescribed for driving on 09/11/2021.
He has moderate nuclear cataracts which reduces his visual acuity (his eye sight) and may need cataract surgery in a few years. Cataract is an aging medical condition.
Unaided VA (eyesight without glasses) is R 6/120, L 6/60. Binocular unaided VA is 6/60. This means that he can not legally drive a car without prescrition [sic] glasses.
Mr Nguyen also recorded that treatments for the respondent included ‘[p]rescription glasses for driving’.
In a signed statement dated 19 October 2023, Mr Nguyen stated that he had first seen the respondent on 8 November 2021 (18 days after the collision) and twice thereafter as follows:
8/11/2021. His unaided VA was R 6/120, L 6/60. Binocular unaided VA was 6/60.
9/11/2021. I prescribed glasses.
23/11/2021. His unaided VA was R 6/95, L 6/48. Binocular unaided VA was 6/48.
He further stated:
I measured his visual acuity (VA) on these two days. Glasses were prescribed on 9/11/2021 and picked up on 23/11/2021.
Without his glasses, [the respondent] has difficulty focussing [on] an object in the distance.[7] His colour vision is normal.
Without glasses, his visual acuity was R 6/95, L 6/48. With glasses, his visual acuity was R 6/19, L 6/9.
Without wearing his glasses, he can do most tasks very slowly at close distances. If his uncorrected visual acuity is 6/48, he can read at 6 metres what people with normal vision (6/6) can read at 48 metres.
His unaided visual acuity was not suitable for most daily tasks. He should wear his glasses most of the time.
He can not drive a car legally without his glasses. He can drive if he wears his glasses.
A change in visual acuity can happen in people who are short sighted. Blood sugar level can change it.
[7]The phrase ‘in the distance’ was added in handwriting to the typed text and signed.
There is also a subsequent ‘statement’ from Mr Nguyen which has not been signed and does not identify any police officer involved in creating it. After referring again to the three occasions on which Mr Nguyen saw the respondent, as well as the measurements he took, the statement reads:
Based on the findings on these three examinations I would not be able to predict or estimate [the respondent’s] unaided visual acuity on 21/10/2021. I can only give you the findings on the dates of the eye tests. I am not an expert in estimating his vision before the eye tests.
Cataracts can cause a sudden or gradual decline in visual acuity. Myopic degeneration can also cause a change in visual acuity but at a slower rate. I am not an expert regarding how fast cataracts can affect visual acuity. Therefore I can not say if [the respondent’s] visual acuity had declined rapidly or not over a relatively short amount of time.
Counsel for the applicant stated that Mr Nguyen had ‘declined’ to sign this statement, which is not relied upon by the applicant.

The trial judge’s ruling

The trial judge appeared to accept that the evidence of the S condition was ‘probative’ (and therefore relevant). However, in circumstances where there was no direct evidence from the customer service officer who dealt with the respondent when the S condition was applied to his licence, she considered that the available evidence was ‘insufficient’ for a court to conclude whether or not the S condition was effectively communicated to the respondent, nor whether it was understood.
The judge then stated:
The state of the evidence is such that [the respondent] is left unable to challenge evidence of the communication of the requirements of the condition to him. The absence of this evidence results in a material unfairness to the accused. In the context in which the prosecution seeks to prove its case, were the existing evidence of the S condition to be put before the jury, in my view there is a real risk that the jury would use the evidence to impermissibly reason that simply by virtue of having his licence so endorsed, [the respondent] could not drive safely without wearing corrective lenses.
The judge next made reference to the fact that the prosecution foreshadowed that if the judge ruled against the admission of the evidence, an adjournment would be sought to obtain further evidence about whether the S condition had been explained to the respondent. The judge considered that, at best, this would mean that the relevant customer service officer would give evidence of only their usual business practice given they would be unlikely to recall the specific interaction with the respondent. However, she considered that cross-examination of such a witness would permit the accused to test one of the central planks of the prosecution case.
By reference to the length of time the applicant had been on notice of the objection, the judge ultimately refused the prosecution application to adjourn the trial on this basis. She then concluded:
On balance, I am not satisfied that any risk that the jury would improperly use evidence of the S condition could be satisfactorily ameliorated by a direction to the jury. The danger of unfair prejudice to the accused is not outweighed by the probative value of the admission of this evidence at trial. I will therefore exclude evidence of the S condition on the accused’s licence.
The judge said it followed from this that the remaining evidence relied on by the applicant was also not admissible, including the evidence of the respondent’s ‘inferred understanding of the condition on his licence, being his English language proficiency as outlined in various correspondence with VicRoads’ and the statement of Mr Stal.
The judge then proceeded to consider the evidence of Mr Nguyen and stated:
This evidence cannot be used as expert opinion that the accused’s eyesight was the same on the date of the collision as it was at the time of these assessments. Accordingly, it is not relevant to a fact in issue and the evidence that his unaided visual acuity was not suitable for most daily tasks. ‘He should wear his glasses most of the time’, is highly prejudicial and may lead the jury to draw an impermissible inference that the optometrist has given an expert opinion about the state of the accused’s eyesight on the day of the collision. Accordingly, pursuant to s137 of the Evidence Act, I conclude that any probative value of this evidence is outweighed by the danger of unfair prejudice to the accused and I exclude admission of this evidence at trial and I so rule.

The judge thereby excluded evidence about the S condition, as well as the other evidence relied upon by the applicant, including that of Mr Nguyen. She also indicated that there would need to be consequential redactions to the record of interview and to statements made by the respondent to the police officer who spoke to him at the scene, as recorded in the officer’s bodycam footage (presumably about the S condition) as a result of her ruling.

Submissions[8]

Applicant’s submissions

[8]In circumstances where the correctness standard applies, it is unnecessary to detail the earlier submissions of the parties which, as indicated already, addressed the House v The King standard. Rather, we will identify the key submissions made as to whether the evidence should be admitted within the ‘correctness’ framework.

The applicant submitted that the respondent’s failure to wear glasses whilst driving when he was only allowed to drive whilst wearing glasses, is a relevant and probative matter to the jury’s assessment of the dangerousness of the respondent’s driving.
In oral submissions counsel clarified that the S condition was relevant to the alternative prosecution case of dangerous driving based on impaired eyesight. She emphasised that the existence of an S condition would not always be relevant to an allegation of dangerous driving, but that the question of relevance needed to be considered together with the other evidence. Such evidence included evidence about the nature of the driving; evidence of the eyewitness that the oncoming vehicle was readily visible; the respondent’s admission to not seeing the approach of the motorbike; and the evidence of Mr Nguyen. Although she initially highlighted the significance of the evidence of Mr Nguyen, she ultimately submitted that the S condition would still have probative value absent his evidence.
The applicant’s submission was that the S condition has ‘substantial’ probative value.
The applicant also challenged the unfair prejudice identified by the trial judge. The applicant submitted that the unfair prejudice was mischaracterised and that the judge otherwise failed to identify any basis on which the evidence could be considered unfairly prejudicial.
Turning to the issue concerning the state of the respondent’s knowledge of the S condition, in oral submissions counsel clarified that reliance was placed on the five categories of evidence that we have already identified. She submitted that it would be open for the jury to infer that the respondent was aware of the S condition in the light of this evidence.
In terms of prejudice, the applicant submitted that the admission of the evidence at trial would be attended by the standard directions about inferences and that there was nothing about the case which would mean that a jury would be unlikely to follow such directions. The respondent would also be permitted to raise all of the alleged inadequacies it relied upon in seeking to exclude the evidence.
Finally, the applicant submitted that the evidence of Mr Nguyen was also relevant because evidence of visual acuity shortly after the incident is relevant to informing an assessment of the visual acuity at the time of the collision as a matter of common sense. The applicant also again highlighted the other evidence, including that the applicant did not see the bike approaching in the distance at the time he was driving without his glasses. Like the evidence of the S condition, the evidence of Mr Nguyen as to the condition of the respondent’s eyesight was said to have substantial probative value.
Given that it would be permissible for the jury to use the evidence of Mr Nguyen to inform an assessment of the respondent’s visual impairment on the date of the collision no unfair prejudice arose.

Respondent’s submissions

The respondent submitted that the S condition did not provide any understanding of the specific visual acuity relevant to the driving alleged to be dangerous. In oral submissions senior counsel submitted that evidence regarding visual acuity would only be relevant if that evidence demonstrated that, on the particular day, the respondent had some difficulty with observing an object or vehicle coming towards him from a distance. This was because the fact in issue was whether the driving was dangerous because the condition of the respondent’s eyesight affected his ability to observe an object coming towards him (and not, for example, whether he correctly read a ‘give way’ sign, or understood that a light was red).
The respondent’s submission was that the S condition says nothing about the nature of any eyesight impairment and that the other evidence did not make it relevant.
In written submissions, the respondent submitted that there was a real risk of unfair prejudice arising from the jury considering that the mere existence of the S condition rendered the driving dangerous in circumstances where the evidence had ‘no probative value’. However, in oral submissions counsel suggested that the jury might give the matter too much weight in circumstances where there is a degree of emotion. They may thereby find a connection where there is not one, engaging in impermissible reasoning.
Turning next to the respondent’s knowledge of the S condition, the respondent submitted that the trial judge was correct to find that the court would be unable to determine if the information about that condition was effectively communicated to the respondent, and if it was, whether it was understood.
In oral submissions senior counsel highlighted the complete absence of evidence of what took place on the day the respondent went to VicRoads to obtain his licence. He criticised various aspects of the five categories of evidence identified by the respondent. That criticism included: that there was no evidence the respondent filled out the relevant forms and/or about whether he had assistance in filling forms and writing correspondence; that the respondent misstated the S condition in his record of interview; that the licencing history in other jurisdictions said nothing about whether the conditions were explained to the respondent; and that Mr Stal only gave evidence of what was meant to be done, not what was in fact done.
The respondent’s ultimate submission was that the evidence could not lead to an inference that the respondent was aware of the S condition. It was therefore irrelevant under s 55 of the Evidence Act.
In the alternative, the respondent submitted that, even if Mr Stal’s evidence was relevant, the respondent’s inability to cross-examine or challenge the VicRoads officer who actually conducted the interview with him amounted to unfair prejudice in circumstances where there was a complete absence of any evidence as to what actually happened on the relevant day.
Finally, in respect of Mr Nguyen, in written submissions the respondent highlighted that he did not give any opinion as to the visual acuity on the day of the collision. In fact, the unsigned statement given by Mr Nguyen indicated that he was unable to provide any opinion as to the visual acuity of the respondent on the day of the collision.[9] It followed that his evidence was not relevant.
[9]The respondent’s further written submissions also contained a formal objection to the evidence of Mr Nguyen on the basis that it did not meet the necessary threshold for admission as expert opinion evidence. However, this objection was ultimately abandoned.
In oral submissions, senior counsel raised two key matters: first, that Mr Nguyen’s evidence did not deal with the respondent’s ability to ‘see’ oncoming objects as opposed to ‘focusing’ on them; second, that it did not address the state of the respondent’s vision on the day of the collision.
In respect of the first matter, counsel submitted that the evidence that the respondent ‘has difficulty focusing [on] an object in the distance’ says nothing about whether the respondent has difficulty in ‘seeing’ an object. Similarly his ability to ‘read’ was not in issue.
In respect of the second matter, counsel submitted that the jury was not entitled to guess or estimate for themselves what the state of the respondent’s eyesight was 18 days earlier. The unsigned statement underscored the danger of using subsequent assessments to measure an eyesight impairment as at an earlier date, which would permit the jury to become experts themselves.
Counsel therefore submitted that Mr Nguyen’s evidence was not relevant.
However, if Mr Nguyen’s evidence was found to be relevant, counsel relied upon the unfair prejudice as found by the trial judge, namely that the evidence of Mr Nguyen might lead the jury to draw an impermissible inference that the optometrist had given an expert opinion about the state of the respondent’s eyesight on the day of the collision.

Consideration

Proposed first ground: is evidence of the S condition admissible?

Section 137 of the Evidence Act provides that, 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.
As explained in Moore, s 137 requires three evaluative assessments: the weight of the probative value of the evidence, the extent of any danger of unfair prejudice, and a comparison of one with the other.[10]
[10]Moore [2024] HCA 30, [18] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).
The first assessment took on some significance in this case where a major part of the respondent’s submissions was that the evidence of the existence of the S condition had no probative value at all because it was not relevant. It is to this issue that we first turn.
Evidence that is relevant is evidence that, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.[11] The inquiry as to the probative value of the evidence is then directed to the ‘extent’ to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[12]
[11]Evidence Act 2008 s 55.
[12]Ibid Dictionary, pt 1, definition of ‘probative value’. See also IMM v The Queen (2016) 257 CLR 300, 313 [42]–[43] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14 (‘IMM’).
In IMM, the High Court explained that in both cases (determining ‘relevance’ and ‘probative value’) the inquiry is as to how the evidence might affect findings of fact.[13] The court held that s 137 generally requires the court to accept the evidence ‘at its highest’, without regard to the credibility or reliability of the evidence.[14] This is because s 137 is concerned with the capacity of the evidence to affect the assessment of the probability of a fact in issue. An assessment of probative value is also to be made in conjunction with other evidence.[15]
[13]IMM (2016) 257 CLR 300, 313 [43] (French CJ, Kiefel, Bell and Keane JJ).
[14]Ibid 314 [47], 315 [52].
[15]Ibid 313 [45].
Given the second way the applicant alleged that the respondent’s driving was dangerous was that he was driving with a visual impairment, a key fact in issue is whether, and to what extent, the respondent’s eyesight was impaired at the date of the collision. More particularly, whether the condition of the respondent’s eyesight reduced how well he could see objects at a distance.
It is true that the S condition has not been shown to have been imposed because the respondent had a reduced ability to see objects at a distance. However, the S condition provides evidence of an objective minimum safety standard set by a licensing authority about the circumstances in which the respondent might drive. More particularly, it suggests that the respondent had some visual impairment in respect of, and relating to, driving, which the licensing authority addressed by requiring the wearing of corrective lenses. The S condition is hence, even considered in isolation, capable of rationally affecting an assessment of whether the respondent’s eyesight was impaired in relation to driving. Given that it may be commonly understood that one of the components of the proper management and control of a vehicle would incorporate an ability to see objects ‘at a distance’, we also consider that it has the capacity to affect an assessment of whether the respondent’s impairment reduced his ability to see objects at a distance.
However, when the S condition is considered together with the other evidence in the case, the extent of that possible effect is considerably strengthened. That evidence includes the fact that the respondent failed to see an oncoming vehicle; the respondent’s own statements that he did not clearly see that vehicle until it was too late; and the statements of the eyewitness driving the car behind him who apparently had no difficulty in seeing the vehicle.
In all of these circumstances we consider that the probative value of the S condition is high. Although the evidence of Mr Nguyen might strengthen this position, we have reached our conclusion without regard to that evidence.
Turning next to the alleged danger of unfair prejudice, the relevant prejudice with which s 137 is concerned is the illegitimate use of the evidence, including by giving it a weight that is disproportionate to its true value.[16]
[16] Moreno (a pseudonym) v The Queen [2023] VSCA 98, [96] (Priest AP, Niall and Kaye JJA) (‘Moreno’).
In circumstances where counsel will undoubtedly identify the limitations of the evidence about the S condition (including that it does not provide detailed particulars of specific visual acuity) we can see no reason why a jury might give the S condition a disproportionate weight, even where there is a degree of emotion involved. More particularly, there is no reason why the jury would impermissibly reason that the breach of the condition alone would necessarily mean the respondent’s driving was dangerous. We therefore consider the danger of unfair prejudice to be low.
In comparing the high probative value and the low risk of unfair prejudice, we therefore consider that the evidence of the S condition should not have been excluded under s 137 and that the proposed first ground is established.

Proposed second ground: is the circumstantial evidence sought to be adduced about the respondent’s knowledge of the S condition admissible?

It is true that there is no direct evidence from the relevant VicRoads officer that they explained the S condition to the respondent. However, in a circumstantial case such as this one, it is appropriate to consider each piece of ‘indirect’ evidence in conjunction with other evidence. In order for the evidence to be relevant, it must be capable, when taken with the other evidence to be adduced in the trial, of rationally affecting the assessment of the probability that the respondent knew of the S condition and understood it.
We consider that the evidence in each of the five categories relied upon by the applicant, taken with the other evidence, is capable of doing so. In particular:
(a)The Victorian application form indicates that the respondent undertook an eyesight test whilst wearing glasses. As well as suggesting some knowledge of a visual impairment, such evidence could render it more probable that the respondent understood that he would be required to wear glasses in order to be able to drive.
(b)The licence history in other jurisdictions shows that the respondent’s licence has been subject to a similar S condition for a very long time (since 2008). Although there may be no direct evidence that such conditions were explained to him, the presence of such a condition is physically apparent (at least in the case of the New Zealand licence). This could render it more probable that the respondent would understand that his licence would be subject to a similar condition in Victoria.
(c)The respondent’s answers in his record of interview indicate that he had an awareness of a condition involving the use of glasses while driving, notwithstanding his misstatement of the requirement imposed by the condition.
(d)Although there is certainly scope to challenge the efficacy of the measures detailed by Mr Stal for communicating the nature of a condition to an applicant for a driver’s licence who is a non-native English speaker, we are to consider the evidence at its highest. Mr Stal’s evidence can be used to support the existence of general practices to ensure non-native English speakers are advised as to relevant license conditions, which in turn would render it more probable that the respondent was so informed.
(e)There is evidence in the subpoenaed materials which generally suggests that the respondent has a functional level of English.
To these categories we would add that the S condition is displayed, and thereby evident, on the licence itself which the respondent was carrying on the day of the collision.
In all these circumstances we consider that, taken at its highest, the evidence was capable of rendering it more probable that the respondent knew about the S condition and what it required. In fact, we consider that the evidence is highly probative of such knowledge.
In terms of prejudice, we are also not persuaded that the admission of the evidence would result in some improper form of reasoning. This complaint appeared to be more properly directed to the question of probative value, in that it was an argument that the evidence was incapable of supporting an inference that the respondent was aware of the S condition. Given that we have found that it could, the complaint largely disappears. Further, although it cannot be necessarily assumed that juries will always follow directions,[17] we consider that, in this case, the usual directions about the use of inferences, which are not complex, would alleviate any potential misuse.
[17]Moore [2024] HCA 30, [42] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).
We are also not persuaded that there would be any unfair prejudice based on an inability to challenge the VicRoads officer who saw the respondent. This complaint was really directed to the evidence of Mr Stal about business practices. However, there is no reason why counsel would be unable to highlight the absence of the relevant officer, and/or the limitations with the evidence of Mr Stal.
We are therefore not satisfied that the high probative value of the evidence is outweighed by the risk of any unfair prejudice, which would be minimal at best.
The proposed second ground is also sustained.

Proposed third ground: is the evidence of Mr Nguyen admissible?

In relation to the evidence of Mr Nguyen, the first issue is whether an optometrist’s observations and assessment of the respondent’s visual capacity post the date of the collision (from 8 November 2021) is relevant to the respondent’s visual impairment as at the day of the collision (21 October 2021).
As a general principle, we consider that observations made by an optometrist about a person’s eyesight some 18 days subsequent to an event could rationally affect the assessment of the probability of that person being visually impaired at the time of that event. This is particularly so given that the requirement that we take the evidence ‘at its highest’ also requires us to take ‘at its highest’ the possible use to which the evidence might be put.[18] In this case, that possible use is to found an inference that the respondent was similarly impaired at the earlier point in time. Whether that inference will actually be drawn will depend on all the evidence, including any evidence about the likelihood and speed of any change in visual capacity.
[18]Di Natale (a pseudonym) v The Queen [2022] VSCA 99, [27] (T Forrest, Emerton and Macaulay JJA).
There are two features which might detract from this general position. First, the respondent’s submission that the evidence of Mr Nguyen did not sufficiently address the relevant fact in issue, being whether the respondent’s eyesight reduced how well he could see objects at a distance. Second, whether the subsequent unsigned statement reduces the probative value of the evidence.

The first matter can be readily disposed of. The alleged distinction between ‘focusing’ and ‘seeing’ identified by the respondent’s counsel was artificial. An inability to ‘focus’ on an object in the distance is clearly capable of affecting how well the person can ‘see’ objects at a distance. This is also supported by the other evidence of Mr Nguyen to the effect that the respondent was myopic and that he could only read at six metres what people with normal vision could read at 48 metres (using his left eye) and what people with normal vision could read at 95 metres (using his right eye).
In terms of the second matter, we do not consider that the existence of the unsigned statement detracts from the probative value of Mr Nguyen’s earlier evidence. First, the statement is not signed and there is no evidence about the circumstances in which it was created. We are told that Mr Nguyen has declined to sign it, although we do not know why. It is therefore impossible to know whether Mr Nguyen might ultimately give evidence consistent with its contents. Second, even if there is some inconsistency between the unsigned statement and the earlier evidence, as we have already explained, an assessment of probative value is to be generally conducted taking the evidence and the use to which it might be put ‘at its highest’ and without regard to the credibility or reliability of the evidence.[19] Third, and in any event, we do not consider that the unsigned statement raises any such inconsistency.
[19]IMM (2016) 257 CLR 300, 315 [52] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14. See also Moreno [2023] VSCA 98, [83] (Priest AP, Niall and Kaye JJA); DPP v Wearn (a pseudonym) [2018] VSCA 39, [26] (Maxwell P and Beach JA), [49] (Priest JA).
In relation to the question of inconsistency, there are two relevant aspects of the unsigned statement:
(a)that Mr Nguyen did not consider that he had the requisite expertise to estimate or predict the respondent’s unaided visual acuity on the day of the collision;
(b)that cataracts can cause either a sudden or gradual decline in visual acuity, although Mr Nguyen did not consider that he had the expertise to opine as to how fast cataracts can affect visual acuity and was therefore unable to say whether there had been a rapid decline in this case.
The first aspect of the unsigned statement takes the matter no further and does not undermine the measurements and observations of the respondent’s visual acuity that Mr Nguyen had already provided. In fact, he reiterated reliance on those earlier measurements by stating that he could ‘only give you the findings on the dates of the eye tests’. The second aspect of the unsigned statement does allow for the possibility that cataracts can cause a sudden decline in visual acuity. However, it also acknowledges that cataracts can equally cause a ‘gradual decline’. Significantly, the unsigned statement records that Mr Nguyen did not consider that he had the expertise to opine as to how fast any impact would be and was hence unable to say whether there had been a rapid decline in the respondent’s visual acuity.
At its highest then, the unsigned statement raises the possibility that the respondent’s cataracts caused a rapid decline in his visual acuity in the 18 days after the collision. The issue which then arises is whether the measurements taken by Mr Nguyen, taken at their highest, are nevertheless capable of shedding light on the state of the respondent’s eyesight some 18 days earlier.
We consider that they would be so capable, particularly in conjunction with the other evidence in this case. Such evidence would include any evidence as to the state of the respondent’s eyesight prior to, and on the day of, the collision, including the circumstances surrounding the collision. Even leaving aside any evidence about the S condition, this will include the respondent’s own statements that he did not clearly see the bike until it was too late, as well as the statements of the eyewitness. It would also include the fact that the respondent wore glasses during his eyesight test at VicRoads. Taking the evidence at its highest, then, we consider that Mr Nguyen’s evidence could rationally affect the assessment of the respondent’s eyesight at the earlier date and would in fact have some significant probative value.
Nor are we satisfied that there is a substantive risk of unfair prejudice should the evidence of Mr Nguyen be admitted. Counsel will be well able to highlight the limits of Mr Nguyen’s evidence in circumstances where he may well acknowledge such limits himself. His own figures in fact record some change in the respondent’s visual acuity between 8 and 23 November 2021 (though the measurements remained well outside the ‘normal’ vision range of 6/6 on each occasion). In such circumstances, there appears to be a very low risk of the jury drawing an inference that Mr Nguyen has given an expert opinion about the state of the respondent’s eyesight on the day of the collision.
Again, therefore, after weighing the significant probative value against the relatively low risk of unfair prejudice we consider that the evidence of Mr Nguyen should not have been excluded under s 137.

Conclusion

It is in the interests of justice to grant leave to appeal so as to resolve an issue as to the admission of evidence that is necessary for the proper conduct of the trial.[20]
[20]Criminal Procedure Act 2009 s 297(1)(b)(iii).
The appeal will be allowed and the judge’s interlocutory decision will be set aside, which will include any consequential decisions.[21] An order will also be made in lieu that the evidence concerning the S condition; the respondent’s knowledge of that condition; and the evidence of Mr Nguyen be admitted.
[21]It thereby becomes unnecessary for us to make express orders, for example, about consequential redactions to the bodycam footage (see above at [38]). Given that the judge’s decision to exclude the evidence of the S condition, the evidence going to the respondent’s knowledge of the S condition and the evidence of Mr Nguyen has been set aside, her decision to require consequential redactions to that material has also been set aside.
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[2024] VSCA 266

19 November 2024