CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial evidence – Whether verdict unsafe and unsatisfactory – Appeal dismissed.
CRIMINAL LAW – Appeal – Conviction – Identification evidence – Probative value – Unfair prejudice – Assessment of probative value – Reliability of the evidence – Christie discretion at common law examined – Whether danger that evidence may receive disproportionate weight required exclusion – R v Shamouil (2006) 66 NSWLR 228 disapproved; R v Carusi (1997) 92 A Crim R 52, DSJ v R [2012] NSWCCA 9 considered – Evidence Act 2008 (Vic) s 137.
EVIDENCE – Expert evidence as to dangers of identification evidence – Opinion rule –Credibility rule – Exception – Reliability of circumstances of identifications – Admissibility of opinion – Whether based on special knowledge – Evidence Act 2008 (Vic) ss 79, 108C.
Following the applicant’s retrial in the Supreme Court, he was found guilty of the murder of Mersina Halvagis and was sentenced to be imprisoned for life without parole.[1]
The applicant seeks leave to appeal against his conviction on four grounds. Ground 1 is that the trial judge should have had regard to the reliability of the identification evidence when determining its admissibility pursuant to s 137 Evidence Act 2008. Ground 2 is that the trial judge’s Pollitt direction was inadequate. Ground 3 is that the trial judge made an error when ruling as inadmissible part of the proposed evidence of an expert called on behalf of the applicant. Ground 4 is that the verdict was unsafe and unsatisfactory having regard to these and other matters.
On the hearing of the application, the bench was constituted by the Chief Justice and Redlich and Bongiorno JJA. As will appear, however, if the applicant were to succeed on Ground 1 he needed to persuade the Court not to follow the decision of the New South Wales Court of Criminal Appeal in R v Shamouil,[2] a 2006 decision which has been followed frequently since. Accordingly, the Court proposed — and the parties agreed — that the appeal bench be enlarged by…
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 Dupas v The Queen
Sign in free to access the full text
Details
AGLC
Dupas v The Queen [2012] VSCA 328
Case
[2012] VSCA 328
Decision Date
CaseChat Overview and Summary
The case of Dupas v The Queen involved an appeal against a conviction for murder. The primary issue before the court was whether the verdict was unsafe and unsatisfactory, given the nature of the evidence presented. The appeal also questioned the probative value versus the prejudicial effect of certain identification evidence and the reliability of the identification circumstances. Additionally, the court had to assess whether the evidence of a prison informer required corroboration and whether the Pollitt direction was adequate.
The court examined the statutory and common law principles governing the admissibility of prejudicial evidence, particularly under section 137 of the Evidence Act 2008 (Vic). The court found that the statutory provision was intended to replicate the common law Christie discretion, which required a trial judge to assess the reliability of evidence. This involved a reassessment of the approach taken in R v Shamouil, which had been previously considered authoritative. The court concluded that the common law had always necessitated the consideration of evidence reliability by the trial judge, and that this principle was critical to ensuring a fair trial for the accused.
The court held that the probative value of the identification evidence, while significant, was substantially outweighed by the danger of unfair prejudice. The court recognised that the identification evidence was highly prejudicial and that there was a real risk it would receive disproportionate weight by the jury. Furthermore, the court found that the evidence of the prison informer did not require corroboration, but the Pollitt direction was insufficient on its own. The court concluded that the evidence was unreliable and the trial judge should have excluded it under the common law discretion, which is mirrored in section 137 of the Evidence Act.
The appeal was dismissed, and the conviction was upheld. The court determined that the trial judge had erred in not excluding the prejudicial evidence, but this error did not render the verdict unsafe and unsatisfactory. The evidence against the appellant was otherwise strong and sufficient to support the conviction.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Section 137 of the Evidence Act states: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 defendant/accused. In proposing s 137, the Australian Law Reform Commission intended that the Christie discretion ‘in its conventional form’ be retained.[10] Section 137 has thus been consistently recognised as requiring the trial judge to apply the common law test. Save that the provision requires mandatory exclusion, it preserves that test by requiring an assessment of whether the probative value of the evidence is outweighed by the danger of unfair prejudicial effect. [10]Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985), [957]. In Shamouil, Spigelman CJ thought it critical that ‘before the Evidence Act the Christie discretion to exclude evidence at common law for which s 137 is a replacement did not involve considerations of reliability of the evidence.’[11] Save for a limited circumstance to which his Honour adverted, he considered that to take reliability into account ‘would be to usurp for a trial judge critical aspects of the traditional role of the jury’. It would involve an enlargement of the trial judge’s powers for the judge to determine the weight of the evidence under s 137.[12] His Honour stated that the court: We are in agreement that a strict reading and careful scrutiny of the language of s 137 and its context discloses no legislative intent to alter the relationship which existed at common law between judge and jury. The unmistakeable intent is that the test under s 137 should continue to be informed by, and applied in conformity with, its common law origins. Hence it has been generally accepted that the provision was intended to replicate the common law test. With great respect to Spigelman CJ, however, the analysis in Shamouil is founded on a misapprehension of the role of the judge under the common law test. From its inception as a discretionary rule, it has always been necessary when the Christie discretion was invoked for a trial judge to have regard to the reliability of the evidence. The judge was to assess what weight it might reasonably be given. As we shall seek to show, the approach adopted in Shamouil, and followed subsequently, has not preserved but has materially altered the relationship between trial judge and jury. By divesting the trial judge of a power that had previously existed, a safeguard was removed that is critical to the avoidance of miscarriages of justice and to ensuring that the accused has a fair trial. Hence it is to the common law that we first turn. By early in the twentieth century and based upon an anxiety to secure for everyone a fair trial, the common law recognised that certain kinds of evidence should not be admitted in criminal trials. The discretion to restrict the admission of particular kinds of evidence first appeared in the proviso to the English Criminal Evidence Act 1898, which listed the circumstances in which an accused might be cross-examined as to his previous convictions or bad character. The authorities commencing with R v Watson[14] are referred to in the speech of Lord Hodson in Selvey v Director of Public Prosecutions,[15] in which it was accepted that a trial judge had the discretion to prevent such cross-examination notwithstanding its strict admissibility, if its prejudicial effect upon the jury was likely to outweigh its probative value. [14](1913) 8 Cr App R 249.[15][1970] AC 304.