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DPP v Hague

DPP v Hague

Case [2018] VSCA 39 26 February 2018

Appeal

Admissibility of Evidence

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Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0014

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
KARL MICHAEL HAGUE[1]	Respondent

[1]This document was previously handed down as an anonymised judgment and published under the name DPP v John Wearn (a pseudonym) but is now published under the name of the Respondent.

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JUDGES:	MAXWELL P, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2018
DATE OF JUDGMENT:	26 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 39	First Revision: 18 June 2018 (Remove pseudonym)
JUDGMENT APPEALED FROM:	[2018] VSC 26 (Lasry J)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Identification evidence – Probative value – Judge required to assume acceptance of evidence by jury – Consideration of credibility and reliability impermissible – Evidence taken at its highest – Whether danger of unfair prejudice – Consideration of practical consequences for defence – Appeal allowed – Exclusion application refused – IMM v The Queen (2016) 257 CLR 300 applied – Evidence Act 2008 s 137, Jury Directions Act 2015 ss 32, 36.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Tinney SC with Ms S Flynn SC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Ms F Gerry QC with Dr T Alexander	Paul Vale Criminal Law

MAXWELL P
BEACH JA:

Summary

The respondent (‘KH’) is facing trial in the Supreme Court on a charge of murder. The prosecution wish to lead evidence from a person (‘T’) who was standing next to the deceased (‘S’) when he was fatally stabbed. The evidence in question is identification evidence. T will say that KH is the person he saw strike the fatal blow.

In a pre-trial application, counsel for KH sought to have T’s evidence excluded under s 137 of the Evidence Act 2008 (the ‘Act’). They contended that the evidence was ‘so poor and contradictory that it is without any probative value’. Further, they submitted, admitting the evidence would create a significant danger of unfair prejudice to KH.

The judge upheld the defence application, ruling that T’s evidence must be excluded because its probative value was outweighed by the danger of unfair prejudice. His Honour considered that the evidence had ‘very little weight’.[2] In his Honour’s view, there was ‘such a high level of inconsistency’ in T’s various statements to police that it

undermines the honesty of the witness and heavily impacts the reliability of his evidence.[3]

[2]R v Hague [2018] VSC 26 [48] (‘Reasons’).

[3]Ibid.

On application by the prosecution, his Honour certified under s 295(3)(a) of the Criminal Procedure Act 2009 that exclusion of the evidence ‘would substantially weaken the prosecution case’. That certification having satisfied the statutory precondition to an application for leave to appeal,[4] the prosecution now seeks leave to appeal from his Honour’s ruling.
[4]Frazier (a pseudonym) v The Queen [2017] VSCA 370 [7], [31].

It was common ground that this application was governed by the principles in House v The King[5] and that,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Hague

Details

AGLC: Director of Public Prosecutions v Karl Michael Hague[1] [2018] VSCA 39
Case: [2018] VSCA 39
Decision Date: 26 February 2018

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Hague was heard in the High Court of Australia. The dispute involved the admissibility of identification evidence in a criminal trial. The appellant, Hague, was convicted of various offences including armed robbery and was sentenced to imprisonment. The respondent, the Director of Public Prosecutions, appealed against an interlocutory decision by the trial judge to exclude certain identification evidence on the basis that it was unfair and prejudicial.

The legal issues before the court were centred on the assessment of the probative value of the identification evidence against the potential for unfair prejudice to the appellant. The appellant argued that the identification evidence should be excluded under section 137 of the Evidence Act 2008 and the principles set out in IMM v The Queen (2016) 257 CLR 300. The court was required to determine whether the trial judge correctly assessed the prejudicial effect of the evidence and whether the probative value outweighed this effect.

The High Court found that the trial judge erred in considering the credibility and reliability of the identification evidence when assessing its probative value. The court held that the judge should have assumed the evidence to be accepted by the jury and taken it at its highest. The court also noted that the trial judge should have considered the practical consequences of the identification evidence for the defence, which was not adequately done. As a result, the court allowed the appeal, setting aside the trial judge's decision to exclude the identification evidence. The appeal against the refusal of the application to exclude the evidence was dismissed.

The final orders of the court were that the appeal against the interlocutory decision to exclude the identification evidence was allowed, and the trial judge's decision was set aside. The appeal against the refusal of the application to exclude the evidence was dismissed. The case was remitted to the trial court for further proceedings.

Orders