MA v The Queen

[2011] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

MA	S APCR 2011 0015
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 January 2011
DATE OF JUDGMENT:	27 January 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 13	1st Revision, 2 February 2011 Paras [6], [8],[10], [13], and [17]

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CRIMINAL LAW – Interlocutory appeal – Admissibility of identification evidence – Certification by trial judge pursuant to s 295(3)(a) Criminal Procedure Act 2009 – Whether ruling was attended by sufficient doubt to require certification – Leave to appeal ordinarily inappropriate where short trial or where ruling concerns routine evidentiary questions involving exercise of discretion – Evidence Act 2008 s 137 – Whether principles in House v The King apply – Probative value – Leave to appeal refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Victoria Legal Aid
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. The sole ground of this application for leave to appeal an interlocutory decision is that the trial judge erred in failing to exclude the evidence of the identifying witness, under s 137 of the Evidence Act 2008.  The particulars to this ground were that the learned trial judge erred in the balancing exercise she performed by deciding that the probative value of this evidence was not outweighed by the danger of unfair prejudice to the accused, and that such a decision was not reasonably open on the facts.

Approach to certification concerning admissibility of evidence: Criminal Procedure Act 2009 s 295(3)(a)

1. At the request of the applicant the trial judge certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘the Act’) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.  Her Honour considered it a clear case that would qualify under that subsection as appropriate for certification.  The prosecution concurred in that course.

1. Section 295(3)(a) is not confined to decisions which rule evidence inadmissible. It has been held that it is applicable to evidentiary rulings to admit evidence. In either case, the statutory question which the trial judge must address is as follows: is this evidence of such significance[1] or so essential[2] that its exclusion would eliminate or substantially weaken the prosecution case?

   [1]C G L v DPP(No 2) (2010) 24 VR 482, 483 (Maxwell P).

   [2]Ibid 485 (Buchanan JA).

1. Where the trial has not yet commenced, certification need not automatically follow a conclusion that if certain evidence were ruled inadmissible, it would ‘eliminate or substantially weaken the prosecution case’.  In CGL v DPP (No 2),[3]  Maxwell P explained:

It was obviously necessary to establish a threshold test before evidentiary questions could be the subject of an interlocutory appeal. Otherwise this court would be inundated with applications for leave to appeal regarding evidentiary decisions of the multifarious kinds which are made every day in many criminal trials. It is important, therefore, that trial judges and prosecutors exercise very real vigilance as to how s 295(3)(a) is applied, lest the work of this court become bogged down, in a way Parliament cannot possibly have intended, with applications for leave to appeal against evidentiary rulings.

[3](2010) 24 VR 482, 483.

1. In McDonald v DPP[4] it was said that the judge, in deciding whether the issue possessed the quality of ‘sufficient importance to the trial’ to warrant certification as required by s 295(3)(b) of the Act, had to make a judgment as to whether the rejected argument was without merit so that the appeal would be hopeless[5] or was attended by sufficient doubt.[6]  In Wells v R(No 2)[7] it was stated in the joint judgment that the approach stated in McDonald v DPP was ‘relevant by analogy’ to the second aspect of the appeal in Wells, where the question was one of admissibility under s 295(3)(a) of the Act. Because certification had there been refused, the Court went on to consider, in compliance with s 296(4)(a), whether the admissibility rulings were attended with sufficient doubt to warrant a grant of leave.

   [4][2010] VSCA 45, [13]–[17] (Ashley JA), [21] (Redlich JA).

   [5]Ibid [17].

   [6]Ibid [21].

   [7][2010] VSCA 294, [7].

1. Accordingly where the trial judge has ruled evidence admissible, the trial judge must make a judgment as to whether his or her interlocutory decision is attended by sufficient doubt.[8]  Both parties accepted that it must have been intended by Parliament that the judge make some evaluation of the likelihood that the evidence could be ruled inadmissible.  When it is concluded that the prospect that the evidence would be ruled inadmissible is hopeless, or that the decision to admit the evidence is not attended by sufficient doubt, certification should be refused.  It appears that certification was here granted without her Honour making any judgment as to the likelihood that either piece of the evidence of identification might be ruled inadmissible before determining whether its exclusion would eliminate or substantially weaken the prosecution case.

   [8]Ibid [10].

Interlocutory appeals in short trials concerning evidentiary rulings

1. The fact that the learned judge certified this decision under s 295 of the Act does not require this Court to grant leave to appeal. The Court must be satisfied that it is in the interests of the justice to do so and must, for that purpose, have regard to the matters set out in s 297. The applicant submitted that as the interlocutory decision was made prior to empanelment of the jury, and the determination of the appeal may render the trial unnecessary or resolve an issue of evidence necessary for the proper conduct of the trial, it was in the interests of justice that leave should be granted.

1. This Court may not be satisfied that the interests of the justice will necessarily be served in granting leave even where matters specified in s 297 have obvious application.  There are three reasons unrelated to the substantive issues raised by this appeal each of which militate against the grant of leave in the present case.  The first concerns the issue of savings in resources and time.  A primary reason for the introduction of the interlocutory appeal process was to ensure that the resources of an already strained criminal justice system were utilised in the most effective way and not wasted, and delays in the justice system were minimised.  The observations of the President in CGL[9] to which I have referred are apposite.  Accordingly, one of Parliament's plain objectives was to address the risks associated with significant rulings by a trial judge before or during a trial which would, if erroneous, require the setting aside of a conviction.  The interlocutory appeal provides a capacity for review of such rulings, so that the overturning of convictions and the need for retrials which would involve substantial additional cost and result in significant delays[10] could be avoided or substantially reduced.  In Stannard v DPP[11] this Court therefore referred to the need to take account of ‘the extent to which court time and resources would be wasted or rendered unnecessary if the decision proved erroneous and was not immediately appealed’.[12]

   [9]CGL v DPP (No 2) (2010) 24 VR 482, 483.

   [10]See the Explanatory Memorandum discussed in Stannard v DPP [2010] VSCA 165, [28].

   [11][2010] VSCA 165.

   [12]Ibid [29].

1. If the trial is to be a short one, these considerations assume much less weight.  There are not the same savings in costs or resources.  Where there is an error in short trials which requires a conviction to be overturned, the delays are unlikely to be of the same magnitude and the waste of resources minimal.  

1. The interlocutory appeal from a short trial involves the fragmentation of that trial.  The commencement of the trial is postponed or the trial is interrupted.  The trial judge may then have to commence other proceedings.  There is no certainty that the trial can recommence immediately upon its return to the trial court, or that the trial judge would be the same.  As this case illustrates, there will be uncertainty as to whether it can recommence in front of the same judge.  The appeal to this Court must then be given priority over other pressing matters.  It places a substantial burden on this Court.  It requires the time and attention of a number of judges from this Court when it is already struggling to deal with the backlog of criminal appeals.  Accordingly, while the fact that a trial will be short is not determinative, it will ordinarily be a very weighty consideration against the grant of leave to appeal from the interlocutory decision.

1. Counsel for the applicant acknowledged that appeals from interlocutory decisions in short trials will not generally warrant a grant of leave, but submitted that to refuse leave here may result in the applicant's wrongful detention in custody upon his conviction until an appeal is heard.  The fact that the accused is in custody may become a relevant consideration where it is plain that the interlocutory decision is wrong and, if corrected, will result in the accused’s release.  That is not this case.

1. Secondly, this Court should also have a reluctance to entertain appeals from evidentiary rulings of a kind routinely made in trials.  This concern was mentioned by the President in CGL in the passage I have referred to, and by Weinberg JA in Wells, who observed that allowing appeals against such rulings ‘provides a strong incentive to systemic abuse, and is in no way beneficial to the public interest’.[13]  While noting that such appeals can only be brought with the leave of this Court, his Honour stated that ‘the filter may well be more illusory in many cases than real’.[14]  

   [13]Wells v The Queen (No 2) [2010] VSCA 294, [46].

   [14]Ibid.

1. Thirdly, regard must be had to the nature of the evidentiary ruling. Both parties approach this appeal on the basis that a ruling pursuant to s 137 of the Evidence Act 2008 was a discretionary decision of the type discussed in House v The King.[15]  Whilst there remains some uncertainty as to whether it is to be so regarded, the decision of DPP v MD[16] gives strong support for the view that the principles in House apply to a review of a decision under s 137. It is to be noted that the prevailing view in New South Wales is that the principles in House applies to review of decisions under s 137. At both parties’ invitation we assumed, without finally deciding the question, that it is a discretionary judgment to which the principles in House apply.  Where, as here, the evidentiary interlocutory ruling requires the exercise of the trial judge's discretion, the applicant faces even greater difficulty in persuading this Court that leave is appropriate.

   [15](1936) 55 CLR 499.

   [16][2010] VSCA 233 at [27]-[30].

The admissibility of the identification evidence

1. I turn then to the issue of the admissibility of the identification evidence.  The facts may be briefly stated.  The identification witness was working at a service station when an armed robbery occurred on Monday 13 July 2009.  She provided an account of what happened and a description of the offender and made a statement the following day.  She told the informant that she recognised the robber as someone she had recently served.  The robber wore a beanie and his hair could not be observed.  He had a distinguishing feature, namely a dint in the middle of his nose. 

1. On 23 July 2009 the witness was shown a photo book containing 87 photos which did not include the applicant.  She did not identify anyone in the book.  According to the informant on the voir dire, the witness said that she was confident she could identify the robber if she saw him again.  The witness had been absent from work for over two months and had returned only for shifts on Friday the 10 and Saturday 11 July before the robbery.  She said that she believed she had served the robber on one of those shifts.  Following this conversation, the witness, either same or the next day, reviewed the CCTV footage of the service station for the Friday shift of 10 July and identified the applicant when she saw him on the screen.  She said that the person shown in that footage was the person who subsequently robbed her.  Financial records obtained by police regarding the transactions from 10 July 2009 establish that the applicant is the customer identified by the complainant in the 10 July footage.  The applicant does not dispute that he is the person shown in that footage.  He appears as having a closely shaved head.

1. On 24 July the witness provided the CCTV footage from 10 July to the informant, and told him she recalled serving the robber on that Friday.  No statement was made by the witness or the informant concerning their conversations of 23 and 24 July until 23 October 2009.  Subsequent to the robbery and these conversations, on 18 September the witness recognised the applicant walking down the street.  She did so, she said, because of his gait, his bald head and the indentation on his nose.

1. At the commencement of the appeal, counsel for the applicant informed the Court that in the light of the decision of R v Mundine,[17] it was conceded that the identification evidence was ‘highly probative’ and that such a concession should have been made before the trial judge.  This acknowledgement appeared to rest on what Simpson J described in Mundine as the ‘prevailing wisdom’ that it is not open to the trial judge, in assessing probative value for the purpose of s 137, to take into account the reliability or credibility of the witness.[18]  That is to say, the probative value of the evidence is to be determined on the assumption that the evidence is accepted by the jury.[19]  Thus in the case of identification evidence, the potential unreliability of that evidence is not to be taken into account in assessing its probative value.  I would leave open the question of whether the question of probative value must always be approached in so confined a way in cases where reliability is a real issue.

   [17](2008) 182 A Crim R 302.

   [18]Ibid 309.

   [19]R v Shamouil [2006] 66 NSWLR 228, 235-238 (Spigelman CJ);ibid.

1. Counsel for the applicant focused upon what he submitted was the unfairly prejudicial aspects of the evidence, if it was admitted.  Dealing first with the identification of the applicant on 10 July, the applicant contended that the manner, timing and circumstances in which the identification by the witness had occurred from the CCTV footage on 10 July ought have led to the conclusion that there was a risk of unfair prejudice to the accused, in that a jury might give it more weight than it deserves.[20]

   [20]Festa v The Queen (2001) 208 CLR 593, 602-3 (Gleeson CJ).

1. The witness's identification is usually to be described as recognition evidence, as discussed in R v Spero. [21]  The evidence in issue is a recording of the circumstances in which the witness previously observed the applicant.  Both parties therefore have an opportunity, not usually available, to examine that occasion as well as the CCTV footage of the robbery itself.

   [21](2006) 13 VR 225.

1. It was before the 10 July footage was viewed that the witness had told the police that she had served the applicant on one of two shifts she had worked on the Friday 10 or Saturday 11 July.  She had given the description of the applicant to the police immediately following the robbery, and well prior to viewing the footage describing the indentation on the robber's nose.  This characteristic is not visible from the footage of 10 July.  The probative value of this identification is strengthened by the evidence that the applicant does possess the distinctive indentation as initially described by the witness to police.

1. The learned trial judge had the benefit of hearing the evidence of the identifying witness and the informant in a very extensive cross‑examination on the voir dire.  The trial judge also had the opportunity of viewing the video footage from 10 July and the offending conduct on 13 July. 

1. Counsel for the applicant, in his attractive argument, submitted that the unfair prejudice requiring the exclusion of this evidence was said to derive from three matters.  First, he submitted the witness did not view the 10 July footage in a controlled environment where her observations and reactions could be recorded by investigating police.  Second, the witness did not look at the entirety of the footage of both 10 and 11 July before selecting that part of the footage that involved the applicant.  Third, the informant had failed to take a contemporaneous statement from the witness at crucial stages of the identification process and did not himself make a statement as to those matters.  This added to the unfair prejudice to the applicant.

1. In my view the first two of these matters are without any substance.  The witness was entitled to review the footage and to cease doing so when she came to the portion of it that she was satisfied showed the customer that she alleges subsequently robbed her.  The review was conducted in the presence of her employer.  She would have followed a similar process had she been in the presence of the informant.  She would not have been obliged to look at other footage once she came to the passage of the video that she was looking for.  As to the third matter, the informant in his evidence on the voir dire acknowledged that he ought to have taken a statement from the identifying witness on 24 July concerning her viewing of and selection of the relevant footage.  He should also, he said, have made a statement concerning his conversation with her on 24 July when the footage was brought to him by the witness.  But it was not suggested that these deficiencies were anything more than oversight.  The fact that the witness viewed CCTV footage with her employer, that there was no record made by the informant of the witness's account of the process she followed, or the fact that the informant did not make a statement himself setting out these events does not, in my view, give rise to any substantial prejudice to the applicant. 

1. Both at trial and on appeal the applicant sought to make much of the fact that the witness probably did not tell the informant until after she had viewed the CCTV footage of 10 July that the recent occasion she had seen the applicant was the Friday before the robbery.  But that is not a criticism of any moment.  Such criticism as could be made of the identification of the applicant as the person who she served on 10 July are matters properly the subject of cross‑examination, argument in closing address and judicial direction.  The evaluation of this evidence is a matter for the jury.

1. Deficiencies in identification evidence other than those that are the subject of specific provision in the Evidence Act 2008[22] will ordinarily be addressed by appropriate cautionary directions being given by the trial judge.  The need to exclude such evidence would generally only arise when the trial judge concludes that no directions can adequately remove a danger that the evidence will be given undue weight or will be impermissibly used.

   [22]See ss 113-116.

1. The decision of the trial judge to admit this evidence was plainly correct.  The probative value of the CCTV footage of the applicant who entered the service station on 10 July 2009 is not in doubt.  It is significant evidence which rationally affects the assessment of the probability of the existence of the fact in issue,[23] namely whether it was the applicant who robbed the service station.  It was clearly open to the learned trial judge to find that any risk of unfair prejudice did not outweigh the probative value of this evidence.  To have excluded such evidence would have been perverse.  No error has been disclosed in the decision to admit the evidence of 10 July footage.

   [23]This is the definition of ‘probative value’ provided by the Dictionary including in the Evidence Act 2008.

1. Counsel also submitted that the evidence of the witness identification of the accused on 18 September 2009 ought be excluded because the demonstrable ‘displacement effect’ created irreparable prejudice.  As a consequence there is a risk of unfair prejudice to the accused.  Counsel informed the Court that the applicant would not, however, seek to have this evidence excluded at trial if the 10 July footage was admitted into evidence.

1. The applicant referred to passages from the judgments in Alexander v R,[24] R v Moody[25] and Pitkin v The Queen,[26] but the circumstances of displacement in those cases and its potential effect on the identifying witness does not call for the exclusion of the evidence in the present case. 

   [24](1981) 145 CLR 395, 409 (Stephen J).

   [25](Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 1 April 1997) 11 (Hidden J).

   [26](1995) 80 A Crim R 302.

1. As the trial judge recognised, the identification of the applicant on the street on 18 September had probative value, but there was a potential for prejudice arising from the fact that the witness had by then reviewed the CCTV footage of the applicant on 10 July.  Her Honour recognised that a risk of ‘displacement’ arose as at least one of the features which the witness recognised on 18 September was the applicant's bald head.  Recognition of this feature is likely to have come from her viewing of the footage of the applicant on 10 July.  The person who robbed the shop three days later was wearing a beanie and his hair could not be observed.  There may also be a displacement effect concerning the applicant's gait which, it was submitted, was discernible from the 10 July footage and which the witness had said was a reason why she recognised the applicant on 18 September.  These displacement effects on the identification of 18 September 2009 are somewhat diminished by the fact that the indentation to the applicant's nose was a feature which the witness recognised on 18 September and which counsel for the applicant conceded before us was not observable in the footage of 10 July.

1. The identification of the applicant on 18 September was spontaneous and has probative value.  It has not been shown, at this stage, that the likelihood of displacement will produce unfair prejudice of such an order as to require that the evidence should be excluded in the exercise of the trial judge's discretion.  As Weinberg JA observed during oral argument, prejudice arising from possible displacement would ordinarily be addressed by an appropriate cautionary direction by the trial judge to the jury.  The complainant's reference to the applicant's bald head and his gait as points of reference, and the risk that this was a result of the displacement from viewing the footage from 10 July, can readily be dealt with by judicial direction.

1. I would refuse leave to appeal because the trial is to be a short one.  I would also refuse leave because her Honour's ruling is an evidentiary ruling involving the exercise of a discretion which has not been demonstrated to be attended by error.

WEINBERG JA:

1. I agree for the reasons given by Redlich J that leave to appeal should be refused.

BONGIORNO JA:

1. I agree.

REDLICH JA:

1. The order of the Court is that the application for leave to appeal is refused.

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