Dupas v The Queen

[2012] VSCA 328

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0026
PETER NORRIS DUPAS	Applicant
v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, MAXWELL P, NETTLE, REDLICH and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 March 2012
DATE OF JUDGMENT	21 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 328
JUDGMENT APPEALED FROM	[2011] VSC 200 (Hollingworth J)

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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.

EVIDENCE – Prison informer – Whether corroboration required – Whether Pollitt direction adequate – Pollitt v The Queen (1992) 174 CLR 558 considered – Evidence Act 2008 (Vic) ss 164, 165.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr J Desmond with Mr R Edney	Doogue & O’Brien
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ

MAXWELL P
NETTLE JA
REDLICH JA
BONGIORNO JA:

1. 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] 

   [1]In relation to his first trial and successful appeal against conviction, see R v Dupas (No 3) (2009) 28 VR 380.

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.

1. 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 the addition of two judges, who would decide the application on the basis of the transcript of the hearing and of the written submissions.  Maxwell P and Nettle JA have participated in the appeal on that basis.

   [2](2006) 66 NSWLR 228 (‘Shamouil’).

The case at trial

1. Mersina Halvagis was murdered at the Fawkner cemetery on 1 November 1997.  She died of multiple stab wounds.  Ms Halvagis was last seen in the tea rooms of the cemetery at around 3.47pm.  A number of witnesses heard a woman scream in the cemetery at around 4.00pm–4.30pm.  Her body was found in the early hours of the next morning a short distance from her grandmother’s grave in the Greek Orthodox section of the cemetery.  There were no witnesses to the murder.  The applicant was arrested in April 1999 in relation to other matters.  

1. In sum, the prosecution ran the following case.  The applicant had attended the cemetery on the morning of Ms Halvagis’ murder where he spoke to an attendant, Mrs Burman, for some time.  He returned to his home which was near the cemetery, made some phone calls and changed his clothing before returning.  Whilst at the cemetery, he was observed by three witnesses:  Mrs Melnik, at some time between 3.00pm–3.50pm;  Mr Weller, at some time between 3.00pm–4.30pm;  and Ms Baran, at some time between 3.45pm–4.20pm.  The prosecution contended that the applicant then murdered Ms Halvagis at some time between 4.00pm–4.30pm.  

1. Some time after the murder, while speaking to a police officer, the applicant lied about never having been to the cemetery and knowing no one who had been buried there.  In fact, his grandfather is buried there, 128 m from where Ms Halvagis was murdered.  The applicant repeated these lies to a friend who visited him in prison.  While in prison the applicant also made several admissions about his guilt to another prisoner, Mr Andrew Fraser.  When the applicant’s house was searched, some clothing was found which fitted the description of what he had been seen wearing on the day of the murder.

1. The applicant did not have an alibi for the time of Ms Halvagis’ murder.  The defence case was that the identification witnesses were mistaken and unreliable, or alternatively that Ms Baran was describing another person;  that the prison informer was not telling the truth;  and that the lies told by the applicant as to not knowing anyone buried at the cemetery were not admissions.

1. Thus the key issues in dispute in the trial related to the appearance of the accused before and after Ms Halvagis’ murder, the identification evidence, the alleged admissions made to the prison informer and the alleged telling of lies.

The prosecution evidence

Time of death

1. Ms Elva Hayden was the catering manager at the tea rooms at Fawkner cemetery.  She gave evidence that she sold flowers and two bottles of soft drink at 3.47pm on 1 November 1997 to a woman who matched the description of Ms Halvagis.  Mr Steven Hume, a funeral supervisor, gave evidence that he was in the tea shop at the time.  He largely repeated the evidence of Ms Hayden.  Mr Hume also said he started locking the cemetery gates at 5.00pm and finished at 5.45pm.  He did not see anyone apart from an elderly man around at that time.  He left for the day, having locked the main gate at about 6.00pm.  At that time, the vehicle gates at the entrance were closed but the pedestrian gate was open.   

1. Mrs Aida Joaquim gave evidence that she was at the cemetery attending a funeral.  At about 4.00pm–4.30pm she heard a woman scream loudly.  She said the scream sounded far away from the direction of the main gate.  It lasted a few seconds, with a second scream a few seconds later.  As she was about to leave the cemetery, Ms Joaquim said she saw a dark blue Ford Falcon station wagon drive past at fast speed.  She said she did not see the driver, but the passenger had a fringe and long blonde hair. 

1. Mr Arthur Joaquim was also at the cemetery.  He gave evidence that he heard two screams by a female, both of short duration, with less than a minute separating the screams.  He described the screams as very far away from the roadway known as Box Forest Road.  He said at first that the screaming was at 4.00pm–4.30pm but later said it was at about 4.30pm–4.45pm.  He gave similar evidence to Mrs Joaquim of a blue Ford station wagon driving past afterwards.  The passenger was a woman with blonde hair.  Mr Joaquim said he did not really notice the driver.

1. Ms Lisa Tinker gave evidence.  She was 10 at the time when she was at the cemetery in the afternoon of 1 November with her mother.  She was standing on top of a grave cleaning the tombstone when she heard a high‑pitched scream in the distance that slowly faded away.  She said her mother did not hear the scream.  Ms Tinker said she looked at the direction where the sound came from but she did not see anything.  She thought this might have occurred mid-afternoon but was not sure.  She described the scream as high-pitched, but could not say if it was that of a man or a woman.  Mrs Maria Tinker, the mother of Lisa Tinker, gave evidence that at about a quarter or ten to four her daughter asked her if she had heard ‘that girl scream’.  

Identification evidence

1. Mrs Laima Burman was an important witness for the prosecution.  She gave evidence that she was working as a volunteer in the Latvian section of the cemetery on 1 November 1997.  She remained there from about 8.00am until about 2.00pm.  About an hour to an hour and a half after she started working, a man approached her.  The first time she had seen the man was when he was kneeling down at a grave site about three or four grave sites away from where she was working.  The next thing she knew, Mrs Burman said, the man was standing in front of her and they started talking.  The man asked her if she was working in the cemetery and she told him she was.  The conversation continued: ‘He said to me he’d just found his adoptive mother’s grave.  He’d never seen her and it’s all going to end there’.

1. The man indicated that the grave he was talking about was the one he had been kneeling at.  He asked Mrs Burman if she would like to have a look at it.  She went with him.  Mrs Burman asked the man how he had found the grave.  He said he did so through a family tree and that he had also gone to the cemetery office to find out.  Mrs Burman said she and the man were standing very close, about an arm’s length away.  At one stage she gave the man a rake to help him tidy the grave he was interested in, but he did not do anything with it.  He just left it.  During the conversation, Mrs Burman said, she was standing face‑to‑face with the man. 

1. After they first spoke, they walked back to where the grave was and had a discussion about how untidy it was.  At that stage Mrs Burman offered to help the man and said she would need his name and telephone number.  Mrs Burman went back to her car to get her diary and, when she came back, the man gave her the name ‘John Roberts’ and a phone number.  Mrs Burman did not realise until later that the phone number was incomplete.  While noting the name and number, Mrs Burman and the man sat down.  They were sitting close together.  Mrs Burman offered to assist the man again because he seemed teary and emotional.  She offered him help and enquired if she could help within the church to find out if there were any living relatives. 

1. Mrs Burman said that the man seemed upset and smelt of alcohol.  She asked him whether he was Latvian, but he said he was Australian.  He said he lived somewhere nearby and was sharing accommodation.  Mrs Burman said that when the man first came over and spoke, they would have been together for about five minutes, then they sat together for 10 minutes.  Twice the man asked Mrs Burman what was behind a nearby hedge and she replied, ‘It’s got nothing to do with this part of the cemetery’.

1. Eventually Mrs Burman went back to where she had been working originally.  After reflection, she wanted to speak to the man again.  She asked him whether the person in the grave was his mother or adoptive mother and he answered, ‘No, definitely the adoptive mother’.  The next time she looked up the man had gone.

1. The next day, very early in the morning, Mrs Burman learned of the murder in the cemetery.  She said, ‘Well, I just jumped out of bed and I said “It’s him” because I just felt that something wasn’t right’.  She rang the police straight away.  A week after the murder, Mrs Burman was interviewed by the police at the police caravan at the cemetery.  

1. Mrs Burman described the man as about 5 feet 7 inches tall, medium build, with fair hair and wearing prescription glasses.  She said she thought the man was in his late 30s and that he had a light‑coloured jacket with pockets lower down.  The jacket was about halfway done up.  She was not sure whether the jacket was zipped or buttoned because there was a fold.  She said he was wearing black trousers — she thought tracksuit pants — with gathering at the bottom of the legs, and white shoes or runners.  As to the jacket, she said it was a light colour and could have been a very pale grey or bone or creamy colour.  Mrs Burman noticed a tear near the right pocket of the jacket.  She said that most of the time the man had his hands in his pocket.

1. She was cross‑examined about this description upon being shown a jacket of the applicant tendered by the prosecution.  Mrs Burman was equivocal, because the jacket shown to her at the trial was darker than she remembered. 

1. A little over six months after the murder, Mrs Burman provided a description to the police who prepared a computerized drawing from her statement.  She gave evidence that she just told the police officer what she remembered and he created the drawing from what she told him.  The drawing showed a man with dark eyes.  Mrs Burman said that the man’s eyes were not brown but were a light colour, either blue/grey or not dark.  She again described the man as being of medium build.  

1. Another year later on 6 May 1999, Mrs Burman was shown a photo board prepared by the police.  There were 12 photos.  The photo board was made available to the Court on the appeal.  Mrs Burman identified photo number 7 (which was a photo of the applicant) and said:  ‘He looked like, ah, I thought he was most likely to be the person, but on that photo he does look younger and also he was smiling so it sort of threw me a little bit’.

1. She said the man in photo 7 was most likely to be the person she saw at the cemetery.  She said:  ‘Well, his hair, as I said before, with his fringe and length of his hair and it looked a little bit lighter in the photo because of the way the light was shining on it, because that day his hair was neat, but it looked very unwashed’.

1. After seeing the photo board, Mrs Burman made the following statement:

Today I’ve been shown a photo folder containing 12 photographs.  I’m unable to say one hundred per cent if the man I spoke to at the cemetery is depicted in the folder.  The men in photos 6, 7 and 12 each have similar features to the man I spoke to.  The man in photograph 7 has hair very similar to the man I spoke to, has the same colouring and style although perhaps a bit longer at the back.  The glasses were similar in style but were not tinted.  The man I spoke to had hair that was neatly cut but appeared unwashed.

Mrs Burman agreed in cross-examination that, when she saw the photo board, she could not identify the applicant as the man she had spoken to at the cemetery. 

1. A further year later, on 16 August 2000, Mrs Burman was in a newsagency and saw a stack of papers on the counter.  She saw a photo on the front page of the Herald Sun newspaper.  She said to her husband, ‘That was the man I saw at the cemetery in the photo’.  She said it was ‘definitely him’.  When asked at trial what her first reaction had been on seeing the front page, she said:  ‘I was shocked to see that finally all those years I had been waiting, I knew I would see his face one day and I thought, well, that’s it’.

1. In cross‑examination it was also put to Mrs Burman that, when she saw the applicant’s photo in the newspaper, she had already studied his photo as one of the three photos she picked out on the photo board.  Mrs Burman agreed.  

1. Mrs Burman gave evidence at a coronial inquest into the death of Ms Halvagis.  She was shown the front page of the newspaper and was asked whether it was the newspaper she had seen when she identified the applicant from the photograph.  She said:  ‘I wouldn’t recall because I’ve seen so many photos and so many papers since so I don’t really know whether that’s the same one that particular day’. 

1. She said at trial that she could not recall how the pictures were presented to her at the inquest.  She confirmed that a photo in an article presented to her at trial was the one from which she had made the identification.  In large print, the article stated: ‘Revealed:  how a killer convicted yesterday is also the prime suspect in Melbourne’s graveyard murder mystery’ and a picture of Ms Halvagis.

1. Evidence was also given by Sergeant Hardiman of the Victoria Police, as to the preparation of the computerised drawing.  This evidence was largely consistent with that of Mrs Burman.

1. Mr Horst Weller gave evidence about a visit he made to the Fawkner cemetery on 1 November 1997.  He said that after walking in the entrance on Box Forest Road he saw a man in the cemetery at some time between 3.00pm and 4.30pm.  He described seeing a man located underneath a bushy tree.  He said the man was startled and that he had an opportunity to look at him for ‘the best part of three seconds’.  Mr Weller said he was about three and a half to four metres away from the man.  He described the man as wearing silver-rimmed, round glasses and that he was wearing a jacket with a knitted collar and the zip halfway down.  Mr Weller said the jacket and the collar were a navy or dark blue.  He said the man’s trousers were dark and that he was wearing dark shoes.  Mr Weller described the man as being about 5 feet 7 inches tall.  He said he thought the man looked ‘a bit plumpish’, with ‘gingery’ coloured hair with silver strands on the left side.  He described the man as having a college haircut brushed forward.  He said the man was about 45 to 55. 

1. Some time later, Mr Weller saw a television news service about the murder of a woman, Margaret Maher.  A picture was shown of the applicant in connection with that murder.  Mr Weller gave evidence at trial that when he saw the applicant’s face on the news service, he realised it was the same person that he had seen at the Fawkner cemetery.  Mr Weller did not speak to the police about the man he saw until some years after the event, in January 2004.  He said that until then he had not wanted to become involved.  Mr Weller was shown the photo board in March 2005.  At trial he said that he picked photo number 7 ‘straight away’ as the person he saw at the Fawkner cemetery.  

1. In cross‑examination it was put to Mr Weller that the television report he saw stated that the applicant was a suspect for the murder of Ms Halvagis:

Counsel:That’s part of your recognising the photograph of the man Peter Dupas, that he was associated with the media report that he was a suspect for the murder?

Weller:Once I saw him on the cemetery underneath by the tree and then I saw the photo on TV, I said, ‘That’s the same man I saw in the cemetery.’

Mr Weller accepted in cross‑examination that he had seen many images of the applicant in the media and that he usually read the Herald Sun newspaper every day.  He agreed that he would have seen many headlines in relation to the applicant.  

1. Evidence was given by Mrs Katica Melnik about her visit to the cemetery on the day of the murder.  She said she went with her friends to the Greek Orthodox section after 3.00pm — maybe 3.30pm or even later.  She saw a man walking who looked confused.  She described him as wearing quite heavy glasses, having very flat, short, blonde hair, fallen on his forehead and on his right side.  She said the man was wearing a brown, greyish top, like overalls, and it looked like he was wearing a jacket, although she was unsure about that.  She said that at one stage the man crossed the road in the cemetery to approach a white monument in the Greek section.  She also gave evidence that when she arrived at the cemetery there was a red car and a blue car in the car park.  When she left, the blue car had gone.  She said she arrived home at 4.15pm and that her home was 20 to 25 minutes from the cemetery.  

1. Mrs Melnik said she heard about a girl being killed in the cemetery.  Some time later she saw a television news broadcast featuring the applicant.  After thinking about the matter for two to three hours, she said she recognized the man in the broadcast as the man she had seen at the cemetery.  She was unable to say when it was she saw the television broadcast, except that it was a long time earlier.  Mrs Melnik made a statement to police seven and a half years later, on 29 April 2005.  She said that the delay was because of her fear.  She accepted that, during the intervening period, she had seen many reports about the murder of Ms Halvagis at the cemetery.  Mrs Melnik was not asked to look at the photo board.

1. Mrs Angela Baran gave evidence that she also went to the Fawkner cemetery on 1 November 1997, during the middle of the afternoon.  She drove towards the Greek section and parked on the gravel.  She visited the grave of some relatives and, after having been there for about 10 to 15 minutes, she felt someone was looking at her and she turned around.  She said she saw a man with glasses facing her and staring at her.  She said she turned away and then turned back again and no one was there.  Mrs Baran said she first saw the man probably three or four graves away from where she was.  She described the man:

[T]he first thing I noticed was his hair.  He had very, very peroxide unnaturally blond hair, it was short, and it had sort of gel or something, maybe not gel, but short spiky hair and he had sort of pink pigmented skin, it was like a scarring kind, not clear skin.  They were the first two things that stood out.

1. She also described the man as wearing square glasses and being of medium build, not very tall, about 5 feet 4 inches or 5 feet 7 inches and clean shaven.  She described the man as having a jacket and said she thought it might have been blue.  She described the man as putting his arms in the jacket.  Mrs Baran said she felt uncomfortable and uneasy because she had not heard anyone walking on the gravel before she turned around and saw the man.  After she turned around and the man had gone, she got up and walked back to her car.  She did not know where the man had gone.  She looked around but could not see him.  She described seeing a red ‘squarish‑like’ car but did not know if there was anyone in the car.  She left the cemetery at about 4.20pm.  When she saw the report of the death of Ms Halvagis on the news, Mrs Baran said she realised she had been there.  

1. A police officer gave evidence that, when searching the applicant’s house on 22 April 1999, the police found a green jacket with a tear, and four other blue jackets.

1. This completed the identification evidence called by the prosecution.  Evidence was given by family members.  Further evidence was given by Ms Halvagis’ fiancé and his father, who found Ms Halvagis’ body.

Forensic evidence

1. Evidence was given by police officers about the finding of a bottle of Sprite in the car Ms Halvagis had been driving on the day of the murder, and about signs of a scuffle near where her body was found.  Cigarette butts were also found in the vicinity.  Ms Halvagis’ shoes were found at the back of another plot in the cemetery, without blood stains.  The police suggested the shoes had been thrown or placed there.

1. Forensic scientific evidence was called for the prosecution.  Mr Maxwell Jones, a forensic biologist, gave evidence about DNA and its transfer from a person to surfaces.  He said that the DNA on the cigarette butts found at the scene was not that of the applicant.  What was thought to be a fingerprint was located on the outer heel of Ms Halvagis’ left shoe, which was tested for DNA.  The DNA profile showed DNA from more than one person.  Ms Halvagis could not be excluded as one of those persons and there was an indication of an unknown male in the DNA.  A second sample taken from the whole of the exterior of the right shoe also produced a mixed DNA profile, indicating Ms Halvagis was a contributor together with an unknown male.  The applicant was excluded as a contributor from the shoe DNA sample, as were all of the members of Ms Halvagis’ family.  

1. Dr David Ranson, a forensic pathologist from the Victorian Institute of Forensic Medicine, gave evidence of the stab wounds inflicted on Ms Halvagis.  He said that the time of death could have been in the later afternoon or evening, but it was difficult to be sure.  He described the injuries to Ms Halvagis’ body as consistent with stab wounds and scraping.  Dr Ranson could not say what position Ms Halvagis was in when she was first attacked or how far from her final resting place she had been attacked; nor could he determine the duration of the attack nor the order in which the injuries occurred.    

Evidence as to the appearance of the accused

1. Other evidence was given by a spectacle maker, Mr Sgourakis, that he had made glasses for the applicant as prescribed by an optometrist on 7 November 1997.  The frames on the glasses were plain shiny gold with a double bridge.  An optometrist, Ms La Rocca, gave evidence that on 7 November 1997 she prescribed a pair of bifocal glasses with photo‑sensitive glass for the applicant. 

1. Evidence was also given by Ms Domenica D’Alberto, hairdresser, that in about 1997 to 1998/9 she cut the applicant’s hair every six weeks.  She said he had a ‘bowl’ cut and that she changed his hair over time to more of a ‘blended cut’.  She said that, on every second cut, she streaked the applicant’s hair with blond tips.  He had fine limp hair.  She gave evidence that she recalled him asking in October 1997 if there was anything that could be done to change the look of his hair at the front, perhaps pulling the fringe back, and she showed him a different way to do his hair using a gel product.  At a haircut on 15 December 1997, she remembered making a note indicating that she was told not to make the applicant’s hair look so blonde.  She recalled that at the end of 1997 the applicant was wearing transition lenses.  

Evidence of admissions to the informer Mr Fraser

1. Andrew Fraser was a solicitor practising in the criminal law for about 28 years.  He was convicted of serious drug offences, including being knowingly concerned in the importation of a commercial quantity of cocaine.  In January 2002 he was in Port Phillip Prison and became friendly with the applicant when they were both in a protection unit known as Sirius East Unit. 

1. Mr Fraser gave evidence about an occasion when he and the applicant were walking alone in a small exercise yard nicknamed the ‘chook pen’.[3]  Another prisoner, a young man of apparent Greek extraction, walked passed the fence of the chook pen, stopped, and said, ‘You’re Peter Dupas?’.  The applicant confirmed that he was.  Mr Fraser said that the young man let go a stream of invective essentially saying, ‘I am a cousin of Mersina Helvagis, you killed her, you’re this, you’re that, you’re a dog and if I get a chance I will knock you.’  After the young man walked off,  Mr Fraser said the applicant asked him, ‘How does that cunt know I did it?’.  Mr Fraser said this was a statement, rather than a question.   

   [3]Before the applicant was interviewed about the murder of Margaret Maher.

1. About a week after the incident with the young man, Mr Fraser and the applicant were in the prison vegetable garden together.  According to Mr Fraser, the applicant was shaking and having trouble rolling his cigarette, so he enquired what was wrong.  The applicant said words to the effect of ‘This young bloke’s going for medication today and I’m going to get him’.  Mr Fraser said that the applicant placed a gardening fork behind a bush, but nothing came of the incident.

1. Mr Fraser gave evidence that the applicant was subsequently taken for a police interview.  When he returned, he asked Mr Fraser questions about the interview process while the two were in the applicant’s cell.  The police interview related to the murder of Margaret Maher.  Mr Fraser said the applicant was highly agitated, saying that he was going to end up ‘wearing Maher’ and that the police were going to look at him again about Ms Halvagis.  The applicant mentioned that DNA material had been found in a woollen glove at the scene of the murder of Ms Maher.  He said the applicant was anxious and said he thought that he had been ‘loaded’ – meaning the police had planted the DNA.  Mr Fraser said that during the conversation, the applicant blurted out that ‘I didn’t leave any at Fawkner, didn’t leave any forensics’.  Mr Fraser said the applicant also said words to the effect that no-one saw him at Fawkner and that no-one could have seen him.

1. Later the applicant was charged with the murder of Margaret Maher.  He asked Mr Fraser to read the brief.  Mr Fraser told the applicant that he had a problem because of the DNA evidence at the scene of the murder of Ms Maher.  The applicant told him, ‘No-one could have seen me do it.  There was no-one around.  Nobody saw me.’  According to Mr Fraser, the applicant was anxious and came close to confusing the details of the two investigations.  The applicant again said, ‘There’s no forensics at Fawkner and there were no witnesses’. 

1. When Mr Fraser told the applicant he had a problem about the murder of Ms Maher, the applicant became very agitated and started to rock backwards and forwards and clasp his hands.  They were in the applicant’s cell at the time and the applicant became more agitated.  He got up from his bed and pointed at the panic button, which Mr Fraser took as an indication that someone might listen.  The applicant made a gesture to keep quiet.  The applicant then performed a pantomime in which he re-enacted the murder of Ms Halvagis.  Mr Fraser demonstrated in the body of the court, during the trial, the pantomime he said the applicant had performed in the cell. 

1. Mr Fraser again visited the applicant in his cell in late 2004.  The applicant was agitated and reiterated that no-one could have seen him and that he left nothing at Fawkner.  

1. On another occasion, Mr Fraser said he and the applicant were in the prison garden when Mr Fraser found a homemade knife in the garden about 8–12 inches long.  Mr Fraser showed it to the applicant, who took it.  While the knife was in his hands, Mr Fraser said, the applicant started to go a bit strange and shake.  He said ‘Mersina, Mersina’.  Mr Fraser said that he took the knife back from Dupas and said, ‘We’ll throw that out now’.

1. In about mid-2005, Detective Senior Constable Paul Scarlett of the Homicide Squad interviewed Mr Fraser, who was then at Fulham Prison.  Mr Scarlett spoke to Mr Fraser over the phone and said, ‘Have you any idea what I’m ringing about?’.  Mr Fraser replied, saying something like ‘What took you so long?’.  Mr Scarlett told Mr Fraser that he was calling about the death of Ms Halvagis.  Mr Fraser was subsequently interviewed by Mr Scarlett about four times, and was released two months early from the completion of his sentence because he agreed to give evidence against the applicant upon his release. 

Evidence of lies

1. Evidence was given that the applicant’s grandfather was buried in an unmarked grave at Fawkner cemetery, approximately 128m from the site of Ms Halvagis’ grandmother’s grave, and that the applicant had told some friends of this.  This evidence was not disputed.

1. A police officer gave evidence that during his interview with the applicant, the applicant informed him that he had not been to Fawkner cemetery and that he did not know anyone who was buried there.  A friend gave evidence that, in April/May, he asked the applicant about Ms Halvagis’ murder and the applicant told him that he had not been to the Fawkner Cemetery and he did not have any relatives buried there.

Evidence of opportunity

1. The applicant lived near the cemetery, in Pascoe Vale.  He did not have an alibi for the time of the murder.  Phone records from his home phone show that there were calls made at 12:45, 12:52 and 17:14.  The applicant’s partner lived with him but was overseas at that time.

Defence evidence

1. The defence called only one witness, Dr Kemp, an expert in the area of forensic psychology, particularly theoretical aspects of face recognition.  Dr Kemp has done extensive research in memory and perception, particularly regarding the legal system and eye‑witnesses.  Dr Kemp gave evidence about post‑event information and how it may influence memory.  He described how a person’s memory about an event may be altered by exposure to material after the event.

1. One example of post‑event information given by Dr Kemp was information from television, newspaper articles and media reports.  Post‑event information was more persuasive if it was perceived as coming from a source which was reliable or high status.  Dr Kemp described how people may take information from a media report and incorporate that into their memory, either overwriting the original memory or filling in gaps in the original memory.

1. Dr Kemp gave evidence that people affected by post‑event information were routinely unable to distinguish real memories from distorted ones.  He also gave evidence that there was no reliable way of testing generally if a memory had been affected by post-event information.  Dr Kemp gave evidence about the factors which have been found to make a person particularly susceptible to having their memory affected by post-event information, such as age, delay, exposure and the circumstances under which the original memory was formed.

Ground 1:  the trial judge erred by failing to have regard to the reliability of the identification evidence when determining its admissibility pursuant to s 137 of the Evidence Act 2008

1. At both the first trial and the retrial the subject of the present appeal, three witnesses gave identification evidence.[4]  As earlier described, Laima Burman, Horst Weller and Katica Melnik gave evidence of having seen the applicant at the Fawkner Cemetery on the day of the murder.  Two of those witnesses had previously seen the applicant on television in connection with other murders of which he had by then been convicted.  The third witness had seen his photograph in the Herald Sun newspaper, together with commentary suggesting that he had murdered Ms Halvagis.  A number of years had passed between the witnesses’ sightings at the Fawkner Cemetery and their identification of the applicant as the person they had seen that day. 

   [4]R v Dupas (No 3) (2009) 28 VR 380.

1. At the applicant’s first trial he had sought unsuccessfully to have the identification evidence of these witnesses excluded, in the exercise of the trial judge’s common law discretion to exclude evidence if its probative value was outweighed by its prejudicial effect.  This discretion was articulated in R v Christie[5] (the ‘Christie discretion’).  At the first trial it had been submitted that none of the identification evidence had any real probative value and that it was significantly outweighed by its likely prejudicial consequences, as the circumstances in which each identification had taken place made it dangerous to allow that evidence to be led.  Weinberg JA (with whom Nettle and Ashley JJA agreed as to this ground), rejected the contention that the trial judge had erred in the exercise of the Christie discretion in refusing to exclude the identification evidence.  The applicant’s conviction was quashed on the separate ground that the trial judge had failed to give directions of the kind prescribed in Domican v The Queen.[6]

   [5][1914] AC 545.

   [6](1992) 173 CLR 555.

1. By the time of the applicant’s retrial, the Evidence Act 2008 (the ‘Evidence Act’) had been introduced. The application to exclude the identification evidence was therefore made pursuant to s 137 of the Evidence Act.  The trial judge concluded that the probative value of the relevant evidence was not outweighed by any danger of any unfair prejudice to the applicant and refused to exclude the identification evidence.  Her Honour stated in the course of so ruling that the authorities recognise that, even when there are problems with the reliability of the identification evidence, that is not a question of admissibility but a question of weight, and that the preponderance of authority suggests ‘it is not open to a trial judge in assessing the probative value of any piece of evidence, to take into account his or her own evaluation of its reliability or the credibility of the witness through which it is tendered.’[7]

   [7][2011] VSC 200, [49]–[52].

1. Ground 1 raises the question whether the trial judge was required to take into account the reliability and weight of the identification evidence in determining whether it should be excluded under s 137 of the Evidence Act.  That question was answered in the negative by the New South Wales Court of Appeal in Shamouil.[8]  As  noted earlier, Shamouil has since been followed and applied in a number of decisions of that Court, the Tasmanian Court of Appeal and this Court.  The applicant submitted that we should not follow Shamouil or the decisions in which it has been applied.

   [8](2006) 66 NSWLR 228.

1. For the following reasons, we are compelled to the view that Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed.  We are compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil as error can be demonstrated with a degree of clarity by the application of the correct legal analysis.[9]  Our conclusions are as follows:

   [9]See Gett v Tabet (2009) 254 ALR 504, 561, 566 [274]–[295].

(a)The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence.  The contrary conclusion was inconsistent with a continuous line of High Court authority.

(b)The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.

(c)The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted.  The phrase ‘taken at its highest’ is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable.

(d)In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence.  Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk.  That does not require the trial judge to anticipate the weight that the jury would or will attach to it.  The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.

(e)So to construe s 137 accords with the language of the statute and its context.  To construe it otherwise does not.

(f)Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function.

1. 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.

2. 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].

1. 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:

should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial.[13]

[11](2006) 66 NSWLR 228, 236.

[12]Ibid 238.

[13]Ibid.

1. 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.

1. 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.

The position at common law

1. 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.

1. In R v Christie[16] the House of Lords transformed the practice of not admitting certain kinds of evidence into a discretionary rule of exclusion, exercisable where the accused would be prejudiced:

by evidence which, though admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value.[17]

[16][1914] AC 545.

[17]Ibid 559 (Lord Moulton).

1. The practice concerned admissible evidence which was viewed by the trial judge as having ‘little value in its direct bearing upon the case’ but might ‘operate seriously to the prejudice of the accused.’[18]  The rule was intended to enable the exclusion of evidence that had little evidential value but might affect the minds of the jury and so seriously prejudice the fairness of the trial.  That discretionary rule was quickly adopted throughout the Commonwealth.[19] 

   [18]Ibid 564 (Lord Reading CJ).

   [19]See, for example, R v Eyles (1917) 17 SR (NSW) 377.

1. The discretion came to be applied to different categories of evidence.  Lord Du Parcq, delivering the opinion of the Privy Council in Noor Mohamed v The King,[20] recognised that the discretion would have application where ‘similar fact’ evidence was technically admissible but where the evidence was not ‘sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted.’[21]  His Lordship emphasised the distinction between admissibility and weight, stating that there would be cases in which it would be unjust to admit evidence of a gravely prejudicial character even though it was technically admissible.  In Harris v Director of Public Prosecutions[22] Viscount Simon, drawing upon the speech of Lord Moulton in Christie, said that the

   
   

   exclusionary discretion should be exercised in relation to similar facts where the probable effect ‘would be out of proportion to the true evidential value’.[23]  Three years later, Lord Goddard CJ in Kuruma v The Queen[24] did not doubt that in a criminal case ‘the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused’.[25] 

   [20][1949] AC 182.

   [21]Ibid 192.

   [22][1952] AC 694.

   [23]Ibid 707.

   [24][1955] AC 197.

   [25]Ibid 204.

1. Further authority was later lent to this now developed general rule of practice by Lord Diplock in R v Sang.[26]  The rule was described by his Lordship as ‘a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value.’[27]  Lord Scarman, referring to the earlier speech of Lord Reid in Myers v Director of Public Prosecutions,[28] stated that it was now the law that ‘a judge has a discretion to exclude legally admissible evidence if justice so requires’.  Australian courts applied this discretionary rule, as it had evolved, to a variety of evidentiary circumstances:  see, for example, Driscoll v The Queen;[29]  Bunning v Cross;[30]  Alexander v The Queen;[31]  Cleland v The Queen;[32]  Harriman v The Queen;[33]  Doney v The Queen.[34]  In the application of the rule to various categories of evidence, the trial judge was often required to undertake some evaluation of the reliability and weight that could be assigned to that evidence. 

   [26][1980] AC 402.

   [27]Ibid 434.

   [28][1965] AC 1001, 1024.

   [29](1977) 137 CLR 517, 541.

   [30](1978) 141 CLR 54.

   [31](1981) 145 CLR 395.

   [32](1982) 151 CLR 1.

   [33](1989) 167 CLR 590.

   [34](1990) 171 CLR 207.

1. Fundamental to the system of criminal justice is the requirement that a person should not be convicted of an offence save after a fair trial according to law.[35]  The speeches of their Lordships in Sang show that the exercise of the discretion rests upon the duty of the judge to ensure that every accused person has a fair trial.[36]  Their Lordships’ judgments also reflect the fact that the discretion ought not to be confined save by the limits of fairness.[37]  Gaudron J said in Dietrich v The Queen[38] that the rules governing evidence must sometimes be tempered by reason and commonsense to accommodate the special case that has arisen, otherwise prejudice or unfairness might result.  Her Honour observed:[39]

Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested[40] or because it has more prejudicial than probative value and so may be misused by the jury.[41]

[35]Wilde v The Queen (1988) 164 CLR 365, 375 (Deane J); Jago v The District Court (NSW) (1989) 168 CLR 23, 56 (Deane J); R v Glennon (1992) 173 CLR 592, 623 (Deane, Gaudron, McHugh JJ).

[36][1980] AC 402.

[37]See, eg, ibid 453 (Lord Scarman). Lord Scarman referred to the case of Selvey v DPP [1970] AC 304, 341–2 (Viscount Dilhorne), 349 (Lord Hodson), 352 (Lord Guest), 360 (Lord Pearce) in support of this proposition.

[38](1992) 177 CLR 292.

[39]Ibid 363.

[40]McDermott v The King (1948) 76 CLR 511, 515 (Dixon J); see Rosemary Pattenden, ‘Judicial Discretion and Criminal Litigation’ (Oxford University Press 2^nd ed, 1990), 233.

[41]R v Christie [1914] AC 545, 560; Harris v DPP [1952] AC 694, 707; Driscoll v The Queen (1977) 137 CLR 517, 541.

1. The requirement of fairness is not only independent but intrinsic and inherent in our system of criminal justice.  As Gaudron J observed in Dietrich, there inheres in every judge in every criminal trial the powers necessary or expedient to prevent unfairness in the trial.

1. Commentators writing before the introduction of the Evidence Act 1995 (NSW) identified evidence as prejudicial — and hence as susceptible to the common law discretionary exclusion rule — if there was a real risk that it would contribute to an erroneous verdict because it might be misused by the jury — whether because they might place more weight on the evidence than it deserved, or might draw false inferences from the evidence, or might use evidence admitted for one purpose for some other forbidden, purpose.[42]  The object of the discretion was not to deny the jury probative evidence but to prevent the jury’s exposure to evidence which would mislead them or play upon their prejudices, or where, because of its doubtful reliability, the jury might attach to it more weight than it deserved. 

   [42]Rosemary Pattenden, above n 40, 233;  Rupert Cross, ‘Discretion and the Law of Evidence:  When it Comes to the Forensic Crunch’ (1979) 30 Northern Ireland Legal Quarterly 289;  Mark Weinberg, ‘The Judicial Discretion to Exclude Relevant Evidence’, (1975) 21 McGill Law Journal 291.

1. In some cases the unfair prejudice would arise because of the risk that the jury might use the impugned evidence for an unintended and illegitimate purpose, or where the emotions of the jury might have been unnecessarily aroused.  For example in Phillips v The Queen,[43] the trial judge had been asked to exercise the Christie discretion to prevent the prosecutor from cross‑examining the accused as to his prior convictions, on the basis that the influence of such evidence upon the jury might extend beyond the strictly limited purposes for which it was admitted, being its legitimate evidentiary effect on credit.[44]  In the context of identification evidence and some other categories of evidence, the unfair prejudice arose not from the use of the evidence for an illegitimate and unintended purpose but because the jury might attach undue and disproportionate weight to the intended purpose of the evidence.  Both the reliability of the evidence and the weight to be attached to it were relevant to either form of unfair prejudice.

   [43](1985) 159 CLR 45.

   [44]Ibid 63 (Deane J).

1. When the unfair prejudice was said to be a risk that the jury would attach undue weight to the impugned evidence, the trial judge was required to evaluate what weight could reasonably be assigned to that evidence, in order to assess whether there was such a risk.  That called for some assessment of the reliability and quality of the evidence, matters ordinarily viewed as being separate and distinct from the credibility of the witness from whom the evidence was to be elicited.  We turn first to examine the application of the discretionary rule at common law in the context of identification evidence, before briefly examining other categories of evidence.

(a)       Identification evidence

1. Alexander v The Queen[45] was concerned with the admission of photographic identification in the absence of an identification parade.  Mason J (with whom Aickin J agreed) said that the problems which afflict identification evidence had their origin in four principal sources:

   [45](1981) 145 CLR 395.

(a)     the variable quality of the evidence much of which is inherently fragile; 

(b)the use by the police of methods of identification which, though well suited to the investigation and detection of crime, are not calculated to yield evidence of high probative value in a criminal trial; 

(c)the consequential need to balance the interests of the accused in securing a fair trial against the interests of the State in the efficient investigation and detection of crime by the police;  and

(d)the difficulty of accommodating the reception of certain types of identification testimony to accepted principles of the law of evidence.

Identification is notoriously uncertain.  It depends upon so many variables.  They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion;  the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection;  and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.[46]

[46]Ibid 426.

1. This is, in short, a problem of reliability of evidence.  It has been the experience of the law that many truthful witnesses have erred in making a positive identification.  The joint judgment of Gaudron, Gummow and Kirby JJ in Mackenzie v R adverted to this problem in these terms:

Many of the problems which have arisen in respect of identification evidence have occurred not because witnesses have deliberately given false evidence to police, and later to courts, but because it is an elementary feature of human psychology, in the words of the character witness in this case, to carry ‘a true mistake … through with … conviction’.  The mind, recognising perhaps the seriousness of the consequences of error, may seek unconsciously to reinforce conviction of the truth and accuracy of the recall, the subject of the testimony.  This can lead to just such risks of dogmatism and certainty that have occasioned the requirements for court warnings in the case of identification evidence so as to prevent the risks of the miscarriage of justice which can otherwise, quite innocently, occur in that context.  But the point made in the identification cases is one of general application.  It applies in relation to recall of perceptions required months or, as in this case, years after events:  especially where those events were brief and seemingly unremarkable at the time they occurred.[47]

[47](1996) 190 CLR 348, 373 (footnotes omitted) (emphasis added).

1. These dangers were considered in R v Harris (No 3),[48] which was a case of voice identification.  Ormiston J (as he then was) said that the concept of a jury being ‘irrationally impressed’ by identification evidence (a phrase first employed by Brooking J in R v Haidley and Alford[49]) provided a proper discretionary basis for excluding some of that evidence ‘where the means adopted are conducive to drawing false or unreliable and thus misleading conclusions’.[50]  For this reason, Ormiston J said, dock identification unsupported by earlier out of court identification, and identification by the use of a single photograph or ‘mug shot’, were usually excluded in the exercise of the discretion ‘because of their inherent weakness and the possibility of suggestion overriding rational identification.’[51]  He referred to the statement in the joint judgment in Davies v The King,[52] that if a witness ‘is shown the person to be identified singly and as the person whom the police have reason to suspect’, the witness will be much more likely, however fair and careful he may be, to assent to the view that the person he is shown corresponds to his recollection. 

   [48][1990] VR 310.

   [49][1984] VR 229, 253.

   [50][1990] VR 310, 319.

   [51]Ibid 319.

   [52](1937) 57 CLR 170.

1. In Alexander, Gibbs CJ explained that the discretionary rule was intended to exclude evidence if the strict rules of admissibility operated unfairly against the accused.  The manner in which an accused was identified went to the weight and

   
   

   sufficiency of the evidence, not its admissibility.[53]  Gibbs CJ quoted a passage from R v Russell, where Richmond P said that while the identification evidence was legally admissible the question was whether it should in the exercise of discretion have been excluded on the basis that its ‘prejudicial effect is out of proportion to its true evidential value.’[54]  The Chief Justice also referred to the Canadian case of R v Bagley,[55] and the statement in the dissenting judgment of McDonald CJA (mentioned in Davies v The King) that the question is not one of admissibility but rather of weight.  The oft‑cited passage from Gibbs CJ focuses upon the trial judge’s obligation to assess weight under the rule of exclusion:

It would be right to exercise that discretion [to exclude] in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.[56] 

[53]Alexander v The Queen (1981) 145 CLR 395, 399, 401–2. See 401 citing Sugerman J in R v Bouquet [1962] SR(NSW) 563.

[54][1977] 2 NZLR 20, 27.

[55][1926] 3 Dom LR 717.

[56]Alexander v The Queen (1981) 145 CLR 395, 402–3.

1. Stephen J also cited Russell as providing appropriate consideration of the factors involved in the exercise of the exclusionary discretion.[57] Relevant to the exercise of the discretion was the ‘quality’ of the identification evidence which, Stephen J said, might ‘greatly affect its cogency’.[58]  Although in dissent, his Honour’s examination of the circumstances in which the identification took place are illustrative of the relevance of the quality of the evidence to the question of exclusion of the evidence.[59]  Mason J also discussed the discretion to exclude such evidence on the basis that the ‘prejudicial effect outweighed its probative value’,[60] recognising that ‘the weight to be given to the identification evidence varies with the circumstances.’[61]

   [57]Ibid 417.

   [58]Ibid 420–1.

   [59]Ibid.

   [60]Ibid 428–9.

   [61]Ibid 433.

1. Two years before Alexander, the Federal Court in a joint judgment of Brennan, McGregor and Lockhart JJ in Duff v The Queen[62] had stated that the Christie discretion to reject admissible evidence of identification ‘requires an evaluation by the trial judge of the probative force which a jury might reasonably attribute to the evidence if it be admitted’.[63]  The appellant’s photograph had been shown to the eyewitness together with other photographs but his was the only face to be seen in both photographs and the identification parade.  The Court accepted that there was an arguable risk of a subconscious disposition to identify the accused but the risk was not so grave that the evidence of identification should have been withdrawn from the jury.[64]

   [62](1979) 39 FLR 315.

   [63]Ibid 340–1.

   [64]Ibid 341.

1. The decision of the Victorian Full Court in R v Doyle[65] contains a most informative analysis of the task to be undertaken by the trial judge in exercising the Christie discretion with respect to identification evidence.  It was common ground in the case that the photographic identification evidence was admissible and relevant.  The objection, however, was that the jury might have inferred that, as the photo came from the possession of the police, the accused was a convicted person.  The Court (Sholl, Pape and Adam JJ) referred to the ‘undoubted’ discretion of the trial judge to exclude such evidence:

if its probative value would be ‘slight’, or ‘trifling’ or ‘tenuous’ and its prejudicial effect on the accused out of proportion to its true evidential value, or to put the matter another way to exclude it if it was not sufficiently substantial having regard to the purpose to which it was professedly directed, to make it desirable in the interest of justice that it should be admitted:  see R v Christie;  Noor Mohammed v R;  Harris v DPP.[66]

[65][1967] VR 698.

[66]Ibid 699 (footnotes omitted).

1. The court found that the judge had correctly stated the test and what he thought the probative value of the evidence to be, and had then examined its detrimental effect.  The evidence was, in the court’s opinion:

capable of having definite weight and persuasive effect in the minds of reasonable jurymen — so much so that it was impossible to say that its weight was so trifling that any possible prejudice to the accused outweighed the possible usefulness of the evidence to the prosecution.[67]

[67]Ibid 701 (emphasis added).

1. This and a later passage emphasise that the judge assesses the ‘capacity’ of the evidence to have probative value by reference to the view which a ‘reasonable jury’ may take.[68]  It was ‘the possible weight’ of the evidence which meant that notwithstanding the prejudice — here, the risk of use for an improper purpose — its exclusion would not have been proper.[69]

   [68]Ibid 701.

   [69]Ibid 702.

1. We should refer in this context to the important decision of the High Court in Festa v The Queen.[70]  There the argument — that the evidence of the four identifying witnesses should have been excluded — turned upon what were said to be deficiencies in its quality.[71]  The quality of the evidence was thus critical.  Gleeson CJ drew attention to the fact that identification evidence, though of ‘weak’ probative value, is admissible unless some principle of exclusion comes into play.  After referring to the passage from the judgment of Gibbs CJ in Alexander to which we have referred, his Honour dealt with the dangers associated with identification by means of selection from a group of photographs.  He observed that, though the evidence be relevant and of some probative value, ‘prejudice might arise because of the danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given.’[72]

   [70](2001) 208 CLR 593.

   [71]Ibid 599 [12] (Gleeson CJ).

   [72]Ibid 602 [22].

1. McHugh J dealt more extensively with the Christie discretion.  He drew attention to the two different forms of identification evidence — positive evidence of identification, and evidence of similarity — and the trial judge’s discretion to exclude such evidence in either form.[73]  His Honour then said:

   [73]Ibid 610–3 [53]–[65].

In the exercise of the discretion, however, the distinction between the two classes of evidence is important.  Experience has shown that juries are likely to give positive identification evidence greater weight than that to which it may be entitled.  Few witnesses are as convincing as the honest — but perhaps mistaken — witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances.  That is why this court insisted in Domican v The Queen that juries be given directions concerning:

·the dangers of convicting on recognition evidence where its reliability is disputed, and

·the factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case.

In exercising the discretion to exclude positive identification evidence, the judge must take account of the risk that the evidence would be given greater weight than it deserves and will operate to the prejudice of the accused.  In considering that risk, the judge must determine whether the Domican directions that will be given would be likely to overcome the prejudice that might ensue without those directions.  If, despite those directions, the risk of prejudice remains and the evidence is weak the proper exercise of the judicial discretion may require the exclusion of the evidence.[74]

[74]Ibid 615–4 [63]–[65] (footnotes omitted) (emphasis added).

1. In describing the Christie discretion, Kirby J said that the trial judge enjoyed a discretion to exclude identification evidence from the jury’s consideration ‘if its probative value were outweighed by the prejudice, danger or unreliability associated with it.’[75]  His Honour then referred to two features of identification evidence against which special protections are required in criminal trials: 

The first feature is the propensity of incorrect evidence of identity, even given honestly and with assurance, to involve mistakes leading to a serious miscarriage of justice.  The second is the tendency for identification evidence to be given special weight, including in the mind of the jury.[76]

Kirby J concluded that the identification evidence was ‘singularly weak’ (as the primary judge had acknowledged).  It was ‘seriously unfair’ to the appellant as it might, without more, have convinced the jury that the prosecution had established her guilt.  His Honour said:

To the extent that the evidence was weak, it was incapable of objectively adding greatly to the weight needed to outweigh the distinct prejudice to the appellant of asking persons in a courthouse, in effect, to identify as the female offender, the only possible female in the vicinity who could qualify for such identification.  To use the words of King CJ in Hallam & Karger, such evidence was ‘virtually valueless’ in terms of probative weight.  But potentially it was highly prejudicial.[77]

[75]Ibid 641 [161].

[76]Ibid 643 [166] (emphasis added).

[77]Ibid 644 [169] (footnotes omitted).

1. At common law, courts have continued to recognise the power of a trial judge to exclude unreliable identification evidence where the cogency of the impugned identification evidence gave rise to the danger that the jury might give it undue weight.  In R v Callaghan[78] Winneke P (with whom Brooking JA and O’Bryan AJA agreed) said of the admissibility of voice identification that familiarity of the identifying witness with the voice of the accused is not a condition precedent to admissibility but goes ‘to the weight of the evidence;  matters which are — subject to the judge’s discretion — for the jury to decide in the light of adequate directions given to them by the judge’.[79] 

   [78](2001) 4 VR 79.

   [79]Ibid 93.

1. In South Australia, an evaluation of probative value is undertaken in accordance with the common law approach:  see, for example, R v Costic and Stefanopoulos[80] and R v Story,[81] in which the principles stated in R v Hallam and Karger[82] (referred to by Kirby J in Festa) have been applied.  More recent cases in South Australia applying these principles[83] have explicitly adopted the approach stated by McHugh J in Festa.[84]

   [80](2004) 151 A Crim R 10, 15–17 (Bleby J with whom Duggan and Anderson JJ agreed).

   [81](2004) 144 A Crim R 370, 384 (Gray J with whom Doyle CJ and Perry J agreed).

   [82](1985) 42 SASR 126.

   [83]For example, Miller v The Police [2007] SASC 435, [18]–[23] (Gray J); R v Coghlan [2010] SASC 131, [25]–[28] (Vanstone, David and Kelly JJ).

   [84](2001) 208 CLR 593, 609, 613 and 614.

New South Wales – common law

1. Some discussion of the application of the common law approach in New South Wales is now desirable.  In R v Pearsall,[85] Hunt J (with whom Wood and McInerney JJ agreed) stated that the weight to be afforded to an identification may be so little, in the absence of an identification parade, that the trial judge is obliged to reject it on the basis of the discretion.  (This is reflective of the long line of authority  to the effect that the reliability of such an identification is suspect.)  After citing authority, his Honour concluded that the matters taken into account by the trial judge demonstrated ‘that the weight of all the identification evidence … was … quite strong’.[86]  Pearsall was followed in R v Webster.[87]

   [85](1990) 49 A Crim R 439.

   [86]Ibid 444.

   [87](Unreported, Court of Criminal Appeal, Supreme Court of New South Wales, Hunt CJ at CL, Allen J and Loveday AJ, 4 November 1993).

1. The following year, in R v Tugaga,[88] Hunt CJ at CL (with whom Gleeson CJ and Abadee J agreed) referred to the right of a trial judge to exclude identification evidence in the exercise of discretion, on the basis that ‘by reason of its poor quality its probative value is outweighed by its prejudicial effect’,[89] citing passages from Alexander.[90]  The Court referred to the power of a trial judge, as a matter of discretion, to withdraw evidence of identification from the jury’s consideration, either before the evidence has been given or at any stage after it has been given, if ‘its quality has been demonstrated to be such that its probative value is outweighed by its prejudicial effect’.[91] 

   [88](1994) 74 A Crim R 190.

   [89]Ibid 193.

   [90]Alexander v The Queen (1981) 145 CLR 395, 402–3, 417, 430, 433, 435.

   [91]R v Tugaga (1994) 74 A Crim R 190, 193.

1. Hunt CJ at CL said:

   The occasion for its exercise would usually be where the weakness of the evidence (and thus its disproportionate prejudice) had not been established in any voire dire examination, although it would not depend upon whether such an examination had been held;  or it may arise simply because the judge had altered a conclusion formed upon an earlier objection, although again it would not depend upon whether there had been such an earlier objection.  … In R (at 79–80;  409–10) Gleeson CJ quoted extensively from the judgment of Wilson J in Mezzo [1986] 1 SCR 802 at 818, 820 in which her Ladyship convincingly made good the point that, in determining whether identification evidence should be left to the jury, the test is whether the quality of the evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate caution to the jury. Although that is not the test applied in Australia as to whether there is a case to answer, it appears to me, with respect, to be an admirable one to be applied when considering whether identification evidence should — in the context of the evidence as a whole, be excluded from the evidence or withdrawn from the jury, and to be a test which is consistent with the well known line of authority commencing with Turnbull [1977] QB 224. I would not put it forward as the only test;  it is nevertheless a test which is appropriate to the circumstances of this present case.  When considering this question, it must be kept in mind that the evidence should not be considered in isolation;  what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole:  cf Chamberlain (No 2) (1984) 153 CLR 521 at 535.[92]

   [92]Ibid 193–4, 196.

2. In light of the agreement of Gleeson CJ with this passage, it unnecessary to make further reference to his Honour’s reasons in R v The Queen,[93] which were also the subject of reference in the influential judgment of Hunt CJ at CL (with whom Newman and Ireland JJ agreed) in R v Carusi.[94]  (As will appear,[95] passages of the reasons in Carusi were relied on by Spigelman CJ in Shamouil as supporting the view that the Christie discretion did not involve considerations of reliability.  As we explain below, Carusi was wrongly applied in Shamouil.  But, given the importance it received in Shamouil, we should refer more extensively to the reasons of Hunt CJ at CL, the presiding judge.)

   [93](1989) 18 NSWLR 74.

   [94](1997) 92 A Crim R 52 (‘Carusi’).

   [95]See paragraphs [193]–[199] below.

1. In an early passage (the ‘first passage’) which was not the subject of any reference in Shamouil or in the later cases which have applied Shamouil, his Honour referred to the danger of prejudice where the quality of the identification evidence is such that the jury may give that evidence greater weight than it deserves.  His Honour’s observations accorded with the long line of authority to which we have referred which has recognised this form of unfair prejudice.  His Honour said:

The result is that there is always a danger that the jury will give to evidence of an identification from photographs a greater weight than it deserves.  When that is added to what has been described as the seductive effect of identification evidence generally the danger of the prejudice to the accused by its admission (for the reasons already outlined) is considerably heightened.  Such prejudice can sometimes be lessened (but rarely removed) by appropriate directions to the jury.  However, identification evidence (as with any other evidence) is subject to the common law ‘Christie’ discretion, whereby the trial judge may exclude any evidence where its prejudice to the accused outweighs its probative value.  That discretion plays a large part in all identification cases, Alexander v The Queen at 402–403, 417, 430, 435);  Regina v R (1989) 18 NSWLR 74 at 76; Doney v The Queen (1990) 171 CLR 205 at 212; Regina v Tugaga (1994) 74 A Crim R 190 at 193–4; Regina v Hewston (1995) 81 A Crim R 387 at 389. A number of cases in which the quality of identification evidence generally has, in the absence of an identification parade, led to a consideration of whether it should be excluded are collected in Regina v Pearsall (1990) 49 A Crim R 439 at 444, and one test as to whether evidence of identification generally should be excluded is whether the quality of that evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate direction or caution to the jury.  Scott v The Queen [1989] AC 1242 at 1259; Regina v R (at 79–80); Regina v Tugaga (at 196).[96]

[96](1997) 92 A Crim R 52, 55–6 (emphasis added).

1. His Honour then made reference to another common law discretion whereby such evidence may be excluded where the use of the evidence would result in an unfair trial for the accused, citing McDermott v The King;[97]  R v Lee,[98]  MacPherson v The Queen,[99] Cleland v The Queen,[100]  Phillips v The Queen[101] and Foster v The Queen.[102]  This is not the occasion to consider whether the Christie discretion is best viewed as an example of that broad discretion.

   [97](1948) 76 CLR 501.

   [98](1950) 82 CLR 133.

   [99](1981) 147 CLR 512.

   [100](1982) 151 CLR 1.

   [101](1985) 159 CLR 45.

   [102](1993) 113 ALR 1.

1. In a later passage (the ‘second passage’) Hunt CJ at CL turned to the question whether, having regard to the nature of the attack made upon the identification evidence, it should be excluded in the exercise of the Christie discretion.  His Honour said:

Did the prejudicial effect of that evidence of identification nevertheless outweighed its probative value?  It was made clear that the group of photographs from which Mrs McHugh identified the appellant as the man who robbed her were surveillance photographs taken only recently, so that there could have been no ‘rogues’ gallery’ effect upon the jury.  There were some problems with the credit of Mrs McHugh, in the sense that the reliability of her evidence as to the description of the offender was attacked because of the manner in which she gave her evidence.  I will have to consider those problems in connection with the principal ground of appeal, that the verdict was unsafe and unsatisfactory.  The clear distinction between the task of this Court in relation to such a ground of appeal and that of the trial judge when exercising the Christie discretion must not be overlooked.

It was for the jury, and not the trial judge, to determine the factual issues at the trial.  Applying the ordinary test, there was clearly a case to go to the jury based upon the evidence in chief of Mrs McHugh which (if that evidence were accepted) was a strong one, and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected.  The power of the trial judge to exclude evidence in accordance with the ‘Christie’ discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends.  The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect;  whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied — on the whole of the evidence — that the jury ought nevertheless have had a reasonable doubt.

Such a distinction is clearly drawn in the decision of the High Court in Doney v The Queen.  It is also basic to that court’s decision in Domican v The Queen by its insistence that the trial judge isolate and identify for the benefit of the jury any matters of significance which may reasonably be regarded as undermining the reliability of the identification evidence, and that directions be given to the jury that they are bound to take those matters into account in determining whether they will rely on that evidence.  That is why I leave to later the attack upon the reliability of Mrs McHugh’s evidence generally, so far as it depends upon the jury’s acceptance of it.  In accordance with the test earlier stated, I do not consider that the frailties in the evidence of her identification of the appellant from the photographs were such that they could not have been cured by an appropriate direction or caution to the jury.  They did not require the evidence of the identification itself to be excluded from the jury.[103]

[103]Carusi (1997) 92 A Crim R 52, 65–66 (emphasis added) (footnotes omitted).

1. These passages highlight the distinction between the jury’s role (of assessing the credibility of the identifying witness and deciding whether the evidence should be accepted) and the trial judge’s role (of deciding the question of admissibility of the evidence by assessing its quality and determining whether its frailties could be cured by appropriate direction).  His Honour also distinguished between the trial judge’s obligation to assume that the jury will accept the witness’s evidence as credible and an appellate court’s ability, in discharge of its supervisory power, to take account of the witness’s credibility in assessing whether the jury ought to have had a reasonable doubt. 

1. In Carusi, the identification evidence was viewed as having considerable probative value.  The Court concluded that there was no basis upon which it should have been excluded in the exercise of the Christie discretion.  The conviction was quashed, nevertheless, on the ground that the nature of the identification evidence made the verdict unsafe.  Hunt CJ at CL emphasised that it was the appellate court’s task to determine whether the jury ought to have had a reasonable doubt as to the appellant’s guilt. That is a task quite different from that of the trial judge in determining – in advance – whether to exclude evidence in accordance with the Christie discretion. 

1. In Smith v R,[104] Kirby J referred with apparent approval to the observations of Hunt CJ at CL in Carusi which acknowledge the various dangers of the use of photographic identification, including the inability of the accused to contest the weaknesses of an identification at the time it is made.  Kirby J stated:

It is those dangers that enliven the exclusionary rules.  But they do so accepting that the test of relevance has been passed.[105]

[104](2001) 206 CLR 650.

[105]Ibid 665.

1. R v Marshall[106] is an instructive case.  Spigelman CJ (with whom Heydon JA and James J agreed) held that a conviction resting solely on identification evidence must be quashed.  There the identifying witness saw and identified the accused when he was handcuffed and in custody.  Without that evidence the Crown had no case.  Initially the witness had been shown photos which included a number of the accused but did not recognise anyone.  The trial judge was not told at the time of the voir dire that the photos included some of the accused.  He refused to exclude the evidence.  When it emerged later in the trial that the photos included some of the accused, the application to exclude the evidence was not renewed.  The accused was convicted. 

   [106](2000) 113 A Crim R 190.

1. There were two grounds of appeal.  The first was that the trial judge erred in admitting the evidence.  The second was that there had been a miscarriage of justice.  In his reasons allowing the appeal, Spigelman CJ referred to the obligation of the trial judge to revisit the question of the exclusion of the evidence once evidence had been given during the trial which invalidated the factual assumptions upon which the decision on the voir dire was based.  His Honour quoted extensively from the passage in the reasons of Hunt CJ at CL in Tugaga (set out above) discussing the weakness of the evidence and its disproportionate prejudice was discussed.

1. A very similar statement is found in the Explanatory Memorandum to the amending Commonwealth Act.  In the discussion preceding the Uniform Evidence Law: Report recommendation, primary focus was given to evidence relating to witnesses who suffered from some sort of cognitive impairment, psychological, psychiatric or neurological considerations, mental illness and child development and behaviour. The Report also discussed recommendations to limit the scope of an exception to the credibility rule. Ultimately, however, it was recommended that the scope of the exception not be limited except in the ways now provided by s 108C. This recommendation was expressly adopted by the NSW Act and the Uniform Act and impliedly by the Commonwealth Act.

1. The exception as enacted is thus directed to expert testimony of substantial probative value, relevant to the assessment of the reliability of a witness to facts in issue.  It deals with the capacity of a witness to give credible evidence, having regard to some behavioural or other factor which may have affected that witness’s capacity to give accurate evidence.  The exception permits expert evidence to be called as to behavioural factors — environmental, cognitive or otherwise — which would assist the Court’s understanding of the capacity of a witness to give credible evidence.[382] Examples of specialised knowledge of that kind are given in s 108C(2).

   [382]Erwin v Vergara [2012] FCA 1240 [8] (Bromberg J); Harris v Bellemore[2009] NSWSC 1496, [12]–[13]; Australia Bank v Caporale [2012] NSWSC 509, [12] (Schmidt J).

1. In CMG v The Queen,[383] Harper JA (with whom Ashley and Weinberg JJA agreed) alluded to the possibility of leave being granted to an expert (who met the criteria set out in s 108C) to testify as to aspects of children’s behaviour — such as that of child victims of sexual assault — which are not a matter of ordinary knowledge. Subsection (2) expressly contemplates evidence being given about child development and child behaviour (including the impact of sexual abuse on children, and their development and behaviour during and following abuse) once the conditions prescribed by the Evidence Act have been met.  Again, expert evidence might be led of the effect of a personality disorder, where there was a rational basis for that disorder to undermine a witness’s credibility,[384] or as to the power of suggestion in the case of a child being interviewed by a person in authority.[385] 

   [383][2011] VSCA 416.

   [384]R v WR [2010] ACTSC 89, [30]–[33] (Refshauge J).

   [385]DPP (NSW) v J G [2010] NSWCCA 222, [124] (Basten JA) [160] (RS Hulme J).

1. Counsel for the applicant submitted at trial that s 79 provided the gateway for the admission of the opinion evidence. As has been seen, counsel eschewed reliance on s 108C. Section 79 required, as does s 108C, the specialised knowledge to be based on training, study or experience and the opinion to be wholly or substantially based on that specialised knowledge. But s 108C contains additional preconditions. It must be shown that the opinion ‘could substantially affect the assessment of the credibility of the witness’, and the court must give leave.

1. On appeal, the applicant sought to revive the abandoned argument that s 108C was applicable to Dr Kemp’s evidence on the basis that, by virtue of the Dictionary definition, credibility encompasses notions of reliability. Ordinarily, however, a party will be bound by the manner in which the case is conducted at first instance,[386] and no submission was made as to why the applicant should not be bound by the course followed at trial. Nor was any submission made as to how the applicant could have been advantaged had the application been made under s 108C, or as to how such additional evidence as Dr Kemp could have given could have ‘substantially affected’ the assessment of the credibility of the witnesses.

   [386]See Patel v The Queen (2012) 86 ALJR 954, 973 [114].

1. The applicant made no submission concerning the factors the trial judge would have been required under s 192(2) to consider before leave could have been granted,[387] nor as to the basis on which s 108C could be invoked on appeal when leave had not been sought at the trial. Whether the applicant eschewed reliance upon s 108C in order to avoid having to comply with those preconditions is unknown, as no explanation was provided on the appeal for the course that was followed.

   [387](2)   Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

   (a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing;  and

   (b) the extent to which to do so would be unfair to a party or to a witness; and

   (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

   (d) the nature of the proceeding; and

   (e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

1. Although the trial judge admitted the ‘general’ evidence of Dr Kemp under s 79 rather than s 108C , her conclusion (albeit based upon her consideration of s 79) was in effect that the general evidence met all of the criteria of s 108C. By contrast, her Honour concluded that the specific evidence could not satisfy the criteria in s 79. The position regarding the more stringent conditions of s 108C would have been a fortiori.

1. As we have pointed out, the applicant did not seek at trial to adduce evidence from Dr Kemp as to the reliability of the identification by each witness, or the degree to which that witness’s evidence might be unreliable. Dr Kemp had explicitly stated during the course of the voir dire that he could not give such evidence. Accordingly, there was no factual foundation for the argument that Dr Kemp should have been permitted to give evidence as to his opinion as to the reliability of the particular identification evidence. Nor was the nature of his evidence on that subject such as could have substantially affected the assessment of the credibility of the witnesses, within the meaning of s 108C(1)(b)(ii). The general evidence having been admitted, the jury were as well placed as Dr Kemp to assess whether and to what extent the general propositions bore on the credibility of the individual witnesses.

1. In the course of her ruling, the trial judge referred to R v Smith.[388] In that case, expert evidence as to the dangers of identification was said to be prima facie admissible under s 79. In a passage quoted by her Honour, Smart AJ said:

The report of Professor Thomson does not capture the strength of the complainant's evidence and his purported application of stated general research conclusions to her and her evidence goes further than is permissible.  He would, however, be able to state the results of his research and the general state of learning and answer questions based on assumptions.  It would be for the tribunal of fact to decide whether they applied in the present case.  That is upon the assumption that his evidence was not otherwise excluded.[389]

[388](2000) 116 A Crim R 1.

[389]Ibid [61].

1. The trial judge made clear to the applicant’s counsel, both during the lengthy submissions on the point and in her ruling, that the applicant was entitled to put hypothetical situations to the expert to amplify each of the dangers developed in the expert’s general evidence.  The risk factors of displacement, post-event information, subconscious transference and the increased susceptibility of error with delay were all matters that could be cogently illustrated without the expert commenting upon the precise circumstances of each witness’s identification. 

1. In the event, defence counsel was able in final address to the jury to draw upon that evidence, amplified by hypothetical examples, to support the contention that such circumstances were also to be found in the identifications by the witnesses.  And it was acknowledged in argument on the appeal that defence counsel had pointed out to the jury how the factors affecting identification, which Dr Kemp had discussed in his general evidence, were present in the case of each identifying witness. 

1. The judge excluded Dr Kemp’s specific evidence because he could not express an opinion as to the reliability of the individual identifications.  He had not been provided with all of the detail of how those identifications occurred, nor had he interviewed or observed any of the witnesses.  As he acknowledged in the case of each witness, he could not express an opinion about the reliability of that witness’s identification, nor could he assess the likelihood of the identification being unreliable. 

1. The judge therefore concluded — correctly, in our view — that for Dr Kemp to have commented upon the precise circumstances pertaining to each identification, or to have expressed a view as to whether those circumstances gave rise to the risk of unreliability, would have been tantamount to him expressing the opinion that the individual identifications were unreliable.  As we have said, the necessary foundation did not exist for him to extrapolate from the research to the circumstances of each identification (about which he was not fully informed) or to the individual witnesses (about whom he knew very little). 

1. An opinion about the circumstances would have gone outside the scope of his specialised knowledge.  An opinion about the reliability of the identifications would necessarily have rested on a combination of speculation, inference and personal views.[390]  At the same time, such an opinion would have been invested with a spurious appearance of authority, and would have subverted the legitimate processes of fact-finding.

   [390]See H G v The Queen (1999) 197 CLR 414, [41] (Gleeson CJ).

1. In the result, Ground 3 is not made out.

Ground 2 – The trial judge’s Pollitt direction was inadequate

1. This ground related to the evidence of the witness Andrew Fraser.  As mentioned earlier, Mr Fraser gave evidence that the applicant made a number of admissions to him, orally and by conduct, of his involvement in the death of Ms Halvagis.  At the time of those alleged admissions, Mr Fraser was a fellow prisoner of the applicant at Port Phillip Prison. 

1. In her charge to the jury, the trial judge gave extensive directions concerning Mr Fraser’s evidence.  Her Honour commenced those directions by instructing the jury that, before they could act on his evidence, they had to be satisfied beyond reasonable doubt that the applicant had made the admissions alleged, and that those admissions were true.  She then detailed each of the admissions said to have been made by the applicant, and summarised Mr Fraser’s evidence in respect of them.

1. Her Honour reminded the jury that the applicant denied making the alleged admissions and repeated that, unless the jury found that those admissions were made and that they were true, they had to disregard Mr Fraser’s evidence completely.  Her Honour then gave a warning to the jury as to Mr Fraser’s evidence and why it might be unreliable.  She made reference to his bad character and his specific perfidy in letting an innocent person ‘face life imprisonment in order to advance his own needs’ — a reference to Mr Fraser’s own criminality — and she listed possible motives Mr Fraser might have had to lie.  She referred to a $1 million reward, to the pressures of the prison environment in which he lived, to specific benefits he might hope to obtain from co-operation with the authorities, to possible remissions of his sentence and to defence arguments to the effect that he was prepared to say and do whatever it took to get out of custody. 

1. The trial judge also referred the jury to the ease with which an oral confession or admission could be fabricated and the difficulty faced by an accused in challenging such evidence.  She referred to the arguments of both the Crown and the defence as to Mr Fraser’s evidence and again directed the jury that they had to take the ‘potential unreliability’ of a prison informer’s evidence into account when considering that evidence and, if they accepted it, in deciding what weight to give it.  She concluded this comprehensive review of Mr Fraser’s evidence, and her directions in respect of it, by saying:

Because Mr Fraser's evidence is so significant in this case, I must emphasise the need for great caution in approaching that evidence.  It would be dangerous for you to convict Mr Dupas on the basis of Mr Fraser's evidence unless you are satisfied that it can safely be relied upon despite all the risks I have described to you.

1. No exception was taken to the trial judge’s charge in respect of this evidence, nor did defence counsel make any request for any particular direction as to the evidence, whether pursuant to s 165(2) of the Evidence Act or otherwise.

1. The applicant complained in Ground 2 that the trial judge’s directions as set out above were inadequate.  In his written case, he advanced three arguments: first, that the trial judge should have warned the jury that it was dangerous to convict on the evidence of Mr Fraser unless it was corroborated by other evidence that would connect the applicant with the offence charged;  secondly, that the effectiveness of the warning her Honour had given was compromised by her having referred to the arguments of the Crown and the defence in the course of that warning; and thirdly, that that warning was ‘diluted’ because it was separated from her summary of Mr Fraser’s evidence which was given the following day.

1. In his oral submissions, counsel for the applicant referred to the lack of corroboration of Mr Fraser’s evidence and argued that that evidence was fundamental to the Crown case. The trial judge’s directions were, he argued, insufficient. He referred to the directions given by Cummins J in the applicant’s previous trial. No submissions were addressed to the effect of ss 164 or 165 of the Evidence Act on this ground of appeal, although counsel did refer the Court to the case of Robinson v The Queen,[391] to which we shall return below.

   [391](2006) 162 A Crim R 88.

1. In Pollitt v The Queen,[392] the trial judge (Beach J) had given the jury a corroboration warning with respect to the evidence of a prison informer, one Denning.  The appellant in that case contended that the warning did not go far enough and did not cover the particular features of Denning’s evidence.  Denning’s evidence was uncorroborated, in the sense that there was no evidence supporting the informer’s statement that an admission had been made by the accused to him.  There was, however, other evidence connecting or tending to connect the accused with the crime charged.  On appeal, the High Court expounded the common law principles applicable to the evidence of prison informers in some detail.

   [392](1992) 174 CLR 558 (‘Pollitt’).

1. But the position at common law, which applied to the applicant’s earlier trial before Cummins J, is now beside the point. Sections 164 and 165 of the Evidence Act have significantly modified the requirement that trial judges give specific warnings to juries where the Crown relies upon evidence which might be unreliable, such as that of accomplices or, as in this case, of prison informers.  Section 164, in specific terms, relieves trial judges of any obligation to warn juries as to the danger of acting upon uncorroborated evidence or to give a direction relating to the absence of corroboration. 

1. A trial judge may, if satisfied that it is in the interests of justice to do so in a particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but there is no longer any obligation to do so:  Kanaan v The Queen.[393]  The New South Wales Court of Criminal Appeal in Kanaan referred to Conway v The Queen,[394] where the High Court held that the giving of such a direction or warning would not, of itself, constitute a misdirection.  The plurality said:

Such a warning would constitute a misdirection only if the facts of the case could not admit of such a conclusion and, given that it is a warning which favours an accused, the giving of such a warning is unlikely to occasion appellate intervention.

Kanaan was followed in Robinson v The Queen.[395] In that case, Spigelman CJ warned that cases concerning unreliable evidence must be treated with considerable caution because of the alterations to the law effected by ss 164 and 165 of the Evidence Act 1995 (NSW), provisions identical to those found in the Evidence Act. 

[393][2006] NSWCCA 109, [217] (Hunt AJA, Buddin and Hoeben JJ) (‘Kanaan’).

[394](2002) 209 CLR 203, 224 (Gaudron ACJ, McHugh, Hayne and Callinan JJ).

[395](2006) 162 A Crim R 88.

1. As the applicant’s trial from which this application is brought was conducted after 1 January 2010, the provisions of the Evidence Act applied to it. Relevantly, ss 164 and 165 were applicable, and the judge was therefore not obliged to give any corroboration warning. Nor, for that matter, was she obliged to give directions pursuant to s 165(2) of the Act concerning Mr Fraser’s potential unreliability.

1. Even if the principles expressed in Pollitt had still been applicable, the directions of the trial judge would have been entirely unexceptionable.  As we have said, her Honour emphasised the potential unreliability of Mr Fraser’s evidence, giving detailed reasons as to why it might be unreliable, and, although she did not specifically refer to the lack of corroboration of the evidence of the applicant’s admissions, she made it clear that the defence contested that evidence.  It would have been abundantly clear to the jury that they had to accept Mr Fraser as a witness of truth before they could be satisfied that the admissions were made.  The trial judge clearly detailed the issues the jury would have to consider in deciding whether to accept that evidence.

1. Her Honour accurately and appropriately referred to the potential unreliability of Mr Fraser’s evidence in explaining to the jury the issues they had to determine in the course of reaching a verdict in this case.  There is no realistic chance that the jury would not have understood the task they were required to perform with respect to Mr Fraser’s evidence, in the course of considering whether they were satisfied as to the guilt of the applicant.  The first argument put by the applicant in respect of this ground, accordingly, fails.

1. Nor is there any substance to either of the two subsidiary arguments put by the applicant — that the effectiveness of any direction concerning Mr Fraser’s evidence was compromised by its being interspersed with prosecution and defence arguments as to that evidence, and that the subsequent summary of Mr Fraser’s evidence was not accompanied by a repetition of the prison informer directions already given.  There was no obstacle, either of law or of common sense, to the judge reminding the jury of the arguments as to Mr Fraser’s evidence in the course of giving directions about it.  On the contrary, the topics were clearly interrelated, and it would obviously have been of assistance to the jury to be reminded of each party’s case as to that evidence at the time when the judge was dealing with its strengths and weaknesses.

1. The trial judge’s summary of Mr Fraser’s evidence was unexceptionable.  Her Honour gave the jury that summary largely without comment.  Whilst she could have reiterated her directions as to the status of Mr Fraser’s evidence and its potential unreliability, she and the jury were both well aware that these matters had been the subject of extensive directions the day before.  It is inconceivable that the jury could have been in any doubt as to who Mr Fraser was or as to how his evidence could have been unreliable.  There was no obligation on the trial judge to prolong her charge by repeating matters which she had already clearly explained to the jury.

1. As we said earlier, no exception was taken to the trial judge’s charge with respect to Mr Fraser’s evidence and no application was made for any further directions with respect to it.  Ground 2 fails.

Ground 4 – The verdict is unsafe and unsatisfactory

1. The test by which a court of criminal appeal must determine whether a jury verdict is unsafe and unsatisfactory — or, as that ground is expressed in the appeal statute, ‘is unreasonable or cannot be supported having regard to the evidence’[396] —has been stated and restated many times since the High Court decided M v The Queen.[397]  For example, in Libke v The Queen,[398] Hayne J (with whom Gleeson CJ and Heydon J agreed) described the test as follows:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

Provided the jury has been given appropriate and adequate directions of law by the trial judge to enable them to consider their verdict properly, that verdict is solely a matter for them.  The verdict will only be interfered with on appeal if the appellant can demonstrate that no reasonable jury could properly have reached it upon the evidence before them.[399]

[396]Criminal Procedure Act 2009 s 276(1)(a).

[397](1994) 181 CLR 487.

[398](2007) 230 CLR 559, 596–7 (citations omitted) (emphasis in original).

[399]Jones v The Queen (1997) 191 CLR 439;  MFA v The Queen (2002) 213 CLR 606; R v Shueard (1972) 4 SASR 36;  R v Berry (2007) 17 VR 153.

1. Neither the applicant nor the Crown addressed any oral argument to this ground on the hearing of this application.  They each relied upon their written case.  The applicant relied upon five discrete matters, as follows:

·the matters set out in Grounds 1, 2 and 3 of his application;

·alleged inherent and significant weaknesses and dangers in the identification evidence of the witnesses Burman, Weller and Melnik;

·the fact that DNA from the deceased’s shoes excluded the applicant;

·the evidence of Baran as to the presence of a male in the cemetery who did not match the applicant’s description but was younger than him, and Baran’s failure to identify the applicant from a photo board;  and

·the alleged confession by the applicant to Andrew Fraser was weak, unreliable, improbable and implausible.

1. We have already determined that the identification and similarity evidence challenged in Ground 1 was properly admitted by the trial judge; that there was no error in the trial judge’s charge as to Mr Fraser’s evidence, as contended by Ground 2; and that there was no error demonstrated with respect to the trial judge’s ruling concerning Dr Kemp’s evidence, as argued under Ground 3.  Accordingly, these matters need not be considered further in dealing with the unsafe and unsatisfactory ground.  They do not support it.

1. The second matter concerned the identification evidence given by the witnesses Burman, Weller and Melnik.  Again, as we have decided that there was no error in the trial judge’s admission of these witnesses’ evidence, there is little further that can be said.  The applicant asserts that there were ‘inherent and significant weaknesses and dangers’ in this evidence.  But those deficiencies, if they were such, were pointed out to the jury by counsel and were the subject of extensive, clear and entirely appropriate directions of law by the trial judge.  Her Honour carefully explained the difference between identification and similarity evidence by reference to the evidence in the case.  She referred to the potential unreliability of such evidence and instructed the jury that before they could convict the applicant, they had to be satisfied beyond reasonable doubt that he had been identified as the person who was present at the cemetery at the relevant time — a direction probably more favourable to the applicant than it needed to be.

1. With the aid of those directions and the summary of the witnesses’ evidence which the judge subsequently gave the jury, it was their function to determine whether they accepted all, or some, or none of that evidence.  In the circumstances, the jury was much better placed to evaluate that evidence and determine its weight than could this Court, confined as it is to the record of the trial.  This argument must be rejected.

1. The third matter concerned the fact that DNA from the deceased’s shoes excluded the applicant.  This argument arises from the evidence of a forensic scientist, Maxwell Jones, who gave evidence concerning an examination of one of Ms Halvagis’ shoes found at the scene of her death.  That examination revealed what could have been a fingerprint on the shoe.  The shoe also yielded a biological sample from which DNA could be isolated.  That DNA was identified as having come from two individuals, of whom Ms Halvagis could not be excluded as having been one.  The other was not the applicant.  Mr Jones told the jury that DNA can be deposited on objects in a myriad of different ways.

1. This evidence does not, of course, in any way implicate the applicant in Ms Halvagis’ death.  Equally, it does not exculpate him.  It was merely one piece of evidence before the jury which they could take into account in determining whether they were satisfied of the applicant’s guilt beyond reasonable doubt.  It would have been entirely appropriate for the jury to take the view that the discovery of an unidentified person’s DNA on a shoe the deceased had been wearing was of no assistance to them in determining whether the applicant was guilty of having caused her death.  It does not assist the applicant with respect to this ground of appeal.

1. The fourth matter concerned the evidence of the witness Angela Baran, who described having seen a male person in the cemetery at the relevant time but was subsequently unable to identify the applicant as that person.  She described this man as having worn glasses and said he was ‘staring at me’.  She said he had

very, very peroxide unnaturally blonde hair, it was short and it had sort of gel or something, may be not gel but short spiky hair, and he had sort of pink pigmented skin … not a clear skin.

She thought he was about five foot seven inches tall and was ‘maybe 30s, like early 30s, maybe 35’.  Again, this evidence is neutral as far as the applicant is concerned.  It certainly does not compel a reasonable doubt as to whether he was guilty, as the jury found him to be.

1. The final matter was the evidence of Andrew Fraser, which was said to be ‘weak, unreliable and [as having] aspects that were simply improbable and implausible’.  The argument referred to 11 matters:

(i)       There was no corroboration at all of his evidence. 

This matter was dealt with at length under Ground 2.  As a matter of law, no corroboration of his evidence was required and, as already noted, having regard to the judge’s directions and the addresses of counsel, the jury was undoubtedly aware that Mr Fraser’s evidence was uncorroborated.  This was a matter for the jury to take into account in assessing the evidence.  It did not prevent Mr Fraser’s evidence from having appropriate probative weight.

(ii)      He would only give evidence if it was ‘a ride for a ride’. 

Mr Fraser conceded in cross‑examination that he had told police that he would only help them if they helped him.  He said that he had used the expression ‘a ride there for a ride back’.  He explained that as meaning ‘You scratch my back, I’ll scratch yours.  I’ve got something you want, you can help me’.
Mr Fraser was undoubtedly a potentially unreliable witness, for a number of different reasons fully explained by the trial judge to the jury.  The jury were well aware that he had a number of possible motives to lie, to which reference has already been made.  He was extensively cross‑examined as to these motives by senior counsel.  The defence case — that there were no admissions made to him by the applicant — was put to him and denied.  This matter, again, was before the jury.  There is no reason to believe that it was not considered by them in reaching a conclusion that Mr Fraser’s evidence was able to be relied upon.

(iii)A precondition to his making a statement and giving evidence was his early release. 

This argument is, in effect, identical to that under (ii) above.  It was fully ventilated in cross‑examination and was clearly before the jury.

(iv)Numerous prior attempts had been made by Mr Fraser to secure his early release before he implicated the applicant. 

Again, these matters — which included identifying corrupt police and giving other assistance — were before the jury and were doubtless considered by them.

(v)The description of the young Greek man was a key feature of his evidence, but there was no support at all for that evidence despite the police investigation of that claim. 

Again, this is a matter which went significantly to Mr Fraser’s credit.  It was before the jury.  The fact that, notwithstanding these deficiencies in his evidence, the jury accepted that the applicant had made admissions to him does not render the jury verdict unsafe or unsatisfactory.  The jury were entitled to accept his evidence nonetheless.

(vi)Significant inconsistency in his evidence as to his efforts to intercede on behalf of the young Greek man with a prison supervisor. 

The same comments can be made with respect to this matter as under (v) above.

(vii)His description of the alleged pantomime did not appear until his third statement despite his evidence that it was something that once seen could never be forgotten. 

This matter concerns the demonstration Mr Fraser told the jury the applicant had given him, in silence, as to how he killed the deceased.  Again, this was before the jury and was doubtless taken into account by them in deciding to accept Mr Fraser’s evidence.  It does not compel a reasonable doubt as to his description of the pantomime given in his evidence.

(viii)His denial of the knowledge of a $1 million reward prior to providing assistance despite receiving The Age on a daily basis. 

Mr Fraser was cross‑examined as to this denial.  He gave an explanation.  It was, essentially, that as a criminal lawyer he did not read ‘cops and robbers’ in the newspapers.  It was a matter for the jury whether that explanation was accepted or not.  The point is a very minor one in the overall context of this case.

(ix)His application for the $1 million reward the day after the applicant was convicted in the first trial.

Mr Fraser was cross‑examined as to this matter.  He conceded that his solicitor had made an application for the reward on his behalf the day after the verdict.  The matter was before the jury for whatever weight they decided to give it in the overall assessment of Mr Fraser’s evidence.

(x)The fact that subject to his petition of mercy being granted he would not give evidence.

This raises the same considerations as are applicable to (ii), (iii) and (iv) above.  It is clear that the jury had to consider a witness who was severely compromised as far as his credit was concerned.  The jury was given adequate directions and reached the verdict they did on the whole of the evidence, which included not only the applicant’s admissions to Mr Fraser but also the other evidence implicating him in the murder of Ms Halvagis such as the identification evidence and his lies as to his knowledge of the cemetery.

(xi)If he did not give evidence he was at risk of reincarceration according to the terms of his petition of mercy. 

Compromised witnesses such as prison informers, accomplices who turn Queen’s evidence, witnesses who have been indemnified against prosecution and other potentially unreliable witnesses are not uncommon in criminal trials. Provided the jury is aware of the matters causing them to be compromised and is given appropriate directions (subject to s 165(2) of the Evidence Act 2008) as to their potential unreliability, there is no reason why such evidence cannot be accepted.

1. The 11 matters listed by the applicant would have given the jury justification for regarding Mr Fraser’s evidence with some scepticism.  Those matters would have entitled them to disbelieve his evidence.  With one exception, however, those matters, whilst relevant to his credit as a witness, were not directly connected to the facts to which Mr Fraser deposed concerning the applicant having made damaging admissions to him.  They were principally concerned with the various motives he had to lie, such as obtaining a remission of his sentence or a monetary reward for giving evidence or, in the case of (vi), his consistency with respect to his account of the young Greek prisoner.

1. Each of these matters was squarely raised for the jury’s consideration.  Nothing in them required the jury to disbelieve him or, even, for that matter, to have a doubt about the truth of his account.

1. In a different category, perhaps, was Mr Fraser’s account of the confrontation between the applicant and the young unidentified Greek prisoner which, he said, preceded the applicant’s first admission to him of having killed Ms Halvagis.  Mr Fraser said that the young man, on approaching the applicant, claimed to be a cousin of the deceased young woman.  He said he threatened the applicant for having killed Ms Halvagis.  The police informant gave evidence that he was unable to identify the young Greek prisoner and that the Halvagis family had told him that there was no relative of theirs in Port Phillip Prison at the relevant time.  There was no evidence of any further inquiries being made.

1. Even then, however, although this evidence may well have caused the jury to doubt Mr Fraser’s account, it did not require them to reject it.  They may have considered that insufficient inquiries had been made to disbelieve Mr Fraser’s account.  They were certainly not required to disbelieve it on the evidence before the Court.  Ground 4 is rejected.

1. The application for leave to appeal will be granted, and the appeal dismissed.

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[371]Ibid.