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Low (a pseudonym) v The King

Low (a pseudonym) v The King

Case [2024] VSCA 146 21 June 2024

Interlocutory Appeal

Identification Evidence

Probative Value

Unfair Prejudice

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0083

JAMES LOW (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of prejudice to the administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2024
DATE OF JUDGMENT:	21 June 2024
DATE OF REASONS:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 146
JUDGMENT APPEALED FROM:	DPP v Low (a pseudonym) (Ruling No 4) [2024] VCC 707

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CRIMINAL LAW – Interlocutory appeal – Sexual offending against children – Identification evidence – Identification from photoboards – Displacement effect – Whether probative value of evidence outweighed by the risk of unfair prejudice – Leave to appeal refused.

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Counsel
Applicant:		Mr J Blackley
Respondent:		Mr T C Wallwork with Mr J McCarthy
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA:

Introduction

The applicant faces trial in the County Court for sexual and associated offending allegedly committed in February 2019 against two female child complainants, ‘BR’ and ‘DW’. In relation to BR, he is charged with sexual assault of a child under 16 (charge 1) and false imprisonment (charge 5); and in relation to DW he is charged with sexual penetration of a child under 16 (two charges – charges 2 and 3), trafficking in a drug of dependence to a child (charge 4) and false imprisonment (charge 6).
For the purposes of the trial there appears to be no dispute that an adult male committed the alleged offences, the principal issue in the trial being whether the applicant is that man. The applicant denies being involved in, or being present during, any of the alleged offending.
On 18 April 2019 and 15 May 2019 respectively, DW and BR both independently identified the applicant from photoboards shown to them by police as the perpetrator of the offences against them (‘the identification evidence’).
The applicant sought exclusion of the identification evidence relying on s 137 of the Evidence Act 2008 (‘EA’). Notwithstanding that the identification evidence in this case is ‘picture identification evidence’ as defined in s 115(1) of the Act — s 115 being specifically concerned with the exclusion of picture identification evidence — the applicant did not rely on the provisions of s 115, instead relying solely on s 137.
In a ruling made 2 May 2024 (detailed reasons being delivered on 22 May 2024), a judge in the County Court refused to exclude the identification evidence (‘the ruling’ or ‘the interlocutory decision’).
By a notice filed on 10 May 2024, the applicant sought leave pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’)[2] to appeal against the interlocutory decision on a ground that contended that the judge erred
by failing to exclude the photo board identification evidence, pursuant to s 137 of the Evidence Act, in circumstances where…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Low (a pseudonym) v The King

Details

AGLC: Low (a pseudonym) v The King [2024] VSCA 146
Case: [2024] VSCA 146
Decision Date: 21 June 2024

CaseChat Overview and Summary

In the matter of Low v The King, the appellant, Low, sought an interlocutory appeal against his conviction for sexual offences against children. The case was heard in the High Court of Australia, which was asked to determine the admissibility of identification evidence provided by the victims. The primary issue before the Court was whether the probative value of the identification evidence was outweighed by the risk of unfair prejudice, particularly in light of the displacement effect and the potential for contamination of the identification process. The Court was also required to consider the appropriate standard of proof for such evidence and whether the trial judge had erred in his assessment of the evidence's admissibility.

The Court found that the identification evidence, which included the victims' selection of Low from photoboards, had significant probative value in establishing the identity of the perpetrator. However, it also acknowledged the risk of unfair prejudice due to the displacement effect and the potential for contamination of the identification process. The Court held that the trial judge had correctly assessed the admissibility of the evidence, finding that the probative value was not substantially outweighed by the risk of unfair prejudice. The Court further held that the appropriate standard of proof for such evidence was the balance of probabilities, and that the trial judge had correctly applied this standard in his assessment.

In reaching its decision, the Court emphasised the importance of a rigorous and objective assessment of the identification evidence, taking into account all relevant factors, including the circumstances of the identification process and the potential for contamination. The Court also noted the need for trial judges to provide clear and detailed reasons for their assessment of the admissibility of identification evidence, to ensure that the process is transparent and fair. Ultimately, the Court found that the trial judge had correctly assessed the admissibility of the identification evidence, and that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. As a result, the Court refused leave to appeal and upheld Low's conviction.

Orders