Pham v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0080

KAI PHAM (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	LYONS, BOYCE & T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2024
DATE OF JUDGMENT:	10 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 159
JUDGMENT APPEALED FROM:	DPP v Kai Pham (a pseudonym) (Ruling) (County Court of Victoria, Judge McInerney, 2 May 2024)

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CRIMINAL LAW – Interlocutory appeal – Evidence – Rape – Sexual assault – Identification evidence – Identification from a photoboard – Probative value – Judge required to assume acceptance of evidence by jury – Risk of suggestion – Risk of displacement – Danger of unfair prejudice – Complainant overseas for identification – Complainant sent photoboard by email – Whether probative value of evidence outweighed by danger of unfair prejudice – Probative value of evidence moderate or moderate to low – Unfair prejudice slight – Leave to appeal refused.

CRIMINAL LAW – Interlocutory appeal – Evidence – Evidence Act 2008, s 137 – Standard of appellate review – Whether rule in House v The King (1936) 55 CLR 499 applies – Whether ‘correctness standard’ applies – Warren v Coombs (1979) 142 CLR 531.

Criminal Procedure Act 2009 s 295; Evidence Act 2008, ss 135, 137; Jury Directions Act 2015, s 36.

R v Dickman (2017) 261 CLR 601; IMM v The Queen (2016) 257 CLR; Warren v Coombs (1979) 142 CLR 531, applied. House v The King (1936) 55 CLR 499; Moreno (a pseudonym) v The King [2023] VSCA 98, considered. Bayley v The Queen (2016) 260 A Crim R 1; DPP v Hague [2018] VSCA 39; Dempsey (a pseudonym) v The Queen [2018] VSCA 39; Fowkes v The King (2023) 72 VR 95; R v Dupas (No 3) (2009) 28 VR 380, discussed.

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Counsel
Applicant:		Ms M Brown
Respondent:		Ms J Piggott
Solicitors
Applicant:	Slades & Parsons
Respondent:	Office of Public Prosecutions

LYONS JA
BOYCE JA
T FORREST JA:

Introduction

The applicant faces trial in the County Court on two charges of sexual assault (charges 1 and 2), one charge of attempted rape (charge 3) and two charges of rape (charges 4 and 5).
The prosecution case is that, on two occasions in October 2019, the applicant attended a massage parlour in suburban Melbourne. The complainant, who had recently arrived from overseas, worked as a masseuse at this massage parlour. The prosecution allege that on each occasion the applicant engaged the complainant to massage him. It is alleged that during the course of each massage the applicant sexually offended against the complainant.
The prosecution seek to adduce at trial the fact that, some 11 months after the alleged offending, the complainant picked the applicant out of a photoboard that contained photographs of the faces of 12 men. By the time of this later identification, the complainant had returned to her country of origin — Japan.
The identification occurred during the currency of the COVID–19 pandemic. There were travel restrictions. Because of this, police emailed the photoboard to the complainant in Japan. This was on 9 September 2020. Approximately two hours after police sent the complainant the photoboard, the complainant replied to police by email. In her email to police the complainant said: ‘Thank you for sending the photo. I probably think No. 5 person’. A photograph of the applicant’s face was included at ‘Number 5’ on the photoboard.
In a pre-trial application, and in reliance on ss 135 and 137 of the Evidence Act 2008 (‘the Act’), the applicant sought the exclusion of the complainant’s evidence identifying the applicant from the photoboard. The evidence forming the basis of this application was the depositional evidence and viva-voce evidence given by the complainant before the trial judge.
In a ruling[1] delivered on 2 May 2024, the trial judge refused to exclude the complainant’s identification evidence. Pursuant to certification given by the trial judge under s 295(3)(a) of the Criminal Procedure Act 2009,[2] the applicant seeks leave to appeal against this ruling. The sole proposed ground of appeal is that ‘the learned trial judge erred in ruling admissible evidence of the photoboard’.
[1]Ruling, DPP v Kai Pham (a pseudonym) (Judge McInerney).
[2](‘CPA’).
In our opinion, and for the following reasons, leave to appeal should be refused.

Prosecution evidence

In order to assess the merits of the present application it is necessary to examine the prosecution evidence in greater detail.

The complainant

The complainant made a statement on 5 November 2019. She said that she arrived from Japan on 1 October 2019 and found work at the massage parlour. After some initial instruction received from her boss, the complainant commenced work. On 13 October 2019, at around 8:00 pm, a male customer entered the parlour. The customer selected the complainant. They both went into a room together. The complainant described the applicant as ‘very smiley’; she thought that his name was ‘Chowa’. The man’s body was ‘very large’. After the commencement of the massage, the complainant said that the man touched her bottom inside her pants and that he put his hands under her clothes. The complainant said that the man grabbed her around the chest area and underneath her bra. He grabbed at her breasts. The man kept insisting that he wanted ‘extra services’ like a ‘hand job’, ‘the full nude’, and ‘the blowjob’. He also asked the complainant if he could have sex with her. He put his hand inside the complainant’s underpants and touched her vagina (charge 1). The complainant refused the man’s requests. She said that she was ‘very scared’. She said that the man was ‘very strong’ and that he tried to pull her closer to him.
The complainant said that she would do a ‘topless massage’ for him if he returned. The man tried to give the complainant money but she refused. The complainant described the man as ‘very strange’. She said that the man was her boss’ ‘favourite customer’.
The man, according to the complainant, was ‘fat’ and probably weighed more than 100 kilograms. He was probably between 180 to 190 centimetres tall. He had a crew cut; his hair was cut very short; it was black. The man looked like a certain Japanese comedian. The man wore glasses with a black frame. The complainant did not remember what the man was wearing but considered him to be ‘around 30 to 40 years old’. In her statement, the complainant said that:
All over his body [the man] had red mark cuppings. In Vietnam there is a massage where a match is lit and placed in a cup and then the cup is placed on the skin and there is a kind of suction that occurs on the skin. It looks like a red mark bruise.
The complainant said that her boss had told her that this man was Vietnamese. The man did not speak clearly; he only answered in one-word answers. He had a ‘really unique face’. As the complainant put it:
Everything was big, his face, his body, he was a big man.
The complainant, in her statement, went on to say that on 20 October 2019 when she was working at the parlour the same man arrived. The complainant said that the man had booked her in advance; she thought that this had occurred through her boss. There was no active telephone number for the parlour. The complainant had heard that customers would call the boss and ask if a particular girl was working on any particular day. She went into a room with the man and quickly realised that it was the same man from a week earlier.
This second booking was for 90 minutes. The man undressed. The complainant started massaging the man’s back. Within five minutes the man was already touching the complainant’s bottom from outside her clothing (charge 2). The man grabbed the complainant’s lower back in order to restrain her movement. He started asking the complainant for ‘extra services’. He wanted everything: ‘head job, blow job, full nude massage, everything’. The complainant said to the man that she was required to do a normal massage. The man smiled and let the complainant continue with the normal massage.
After 30–40 minutes the man became impatient and kept asking for the ‘extra services’. The complainant left the room; when she returned he was standing up and had a condom on. He pulled the complainant’s arm and started kissing her. The complainant pushed the man away. The man tried to get the complainant to lie on the bed. He said: ‘I will give you lots of money so let’s do it’. He seated the complainant on the bed. She was facing the man and he tried to remove her shirt and bra. The man was trying to pull the complainant’s pants down from the crotch area but she was holding onto them from the belt area. She tried to stop him putting his hands down the front of her pants. He pulled her pants so hard that the stitching ripped. The complainant tried to stop him but he succeeded in pulling the complainant’s pants off. The man said that he would give the complainant lots of money and that it was their secret.
The man pushed the complainant down onto the massage bed; he put his hand over her mouth and tried to open her legs. The man tried to penetrate the complainant’s vagina with his penis. This occurred many times but the man’s penis was so small the condom fell off (charge 3). While the man was trying to put the condom back on, the complainant stood up. She told the man to ‘please leave’. The man was grinning. He approached the complainant and pushed her down. The man pushed the complainant from the back and bent her over the bed. He grabbed another condom and put it on his penis. He kept saying: ‘don’t worry I’m going to pay you so stay quiet’.
The man tried to penetrate the complainant’s vagina but his penis went up against her anus. The complainant was struggling. The complainant thought that he penetrated her vagina first. This lasted for a minute or so. She felt his penis inside her vagina (charge 4). He then penetrated the complainant’s anus ‘for a few minutes at least’. She kept crying and begging him to stop. His left hand was over her mouth. She felt his penis in her anus and felt real pain (charge 5).
The man finally stopped. He calmed down and wiped himself. The complainant was not sure whether the man ejaculated. The man grabbed the complainant’s face and said: ‘please smile’. He kissed her a lot of times while he was smiling. The complainant noticed another condom on the floor. She got dressed and asked the man to leave. The man tried to give the complainant money and said: ‘let’s make as if this never happened’. The complainant saw the man to the front door.
The complainant later told her boss that her pants had been ripped by the man and that she did not want to see that customer again. The complainant said that she told a later customer about what the man had done to her. When she got home, she rang her husband, who was overseas, and told him about what had happened. The next day the complainant told the other women who worked in the massage parlour about what had happened. The complainant told her boss exactly what had happened to her. The next day she recorded further conversations that she had with her boss. The complainant told her boss that the man’s name was ‘Nick’.
The complainant quit the job at the parlour later the following evening. When she left the parlour, she was collected by another customer. The complainant told this customer what the man had done to her. On 31 October 2019 the complainant told a prospective employer about what had occurred. This person offered to take the complainant to the police. The complainant went to the police and gave them her ripped jeans.
The customer who saw the complainant on the night of the alleged offending said that the complainant had told him that she had been sexually assaulted.
The police officer who first met the complainant said that the complainant had told her that she had been forced to have sex with a customer who was: ‘Vietnamese appearance, tall and fat’.
Police subsequently seized the complainant’s boss’ mobile phone. Stored on the phone was a contact phone number listed under the description: ‘Vietnamese guy glasses’. That particular number was able to be linked to the applicant’s mother. Telephone records indicated that this phone number had been in contact with the boss’ phone on 13 and 20 October 2019.
The applicant was interviewed by police on 24 September 2020. He admitted attending the same massage parlour where the complainant worked. He said that this particular parlour gave ‘happy endings’ as well as ‘genuine massage’. The applicant said that he first went there years ago and had been there, in total, some six to 10 times. The applicant said that he would book massages by texting a mobile phone contact. He said that in the past he would have gone there at around 9:00 pm. The applicant said that he had agreed to a ‘hand job’ some three or four times whilst he was at the parlour. Nevertheless, he denied ever having oral sex, or penetrative sex, whilst at the parlour. He said that he sometimes had ‘cupping’ performed upon him. He did this when he felt sick. He had most recently undergone the ‘cupping’ process at some point prior to the ‘second lockdown’. He said that he had touched the women who had carried out massages on him, ‘probably on their butt’. He said that, generally speaking, he would ask if it was ‘OK’ if he might touch the women. They would answer either ‘yes’ or ‘no’. He lived with his parents. He said that his mother uses the particular phone number that had been in contact with the complainant’s boss on 13 and 20 October 2019. The applicant denied the allegations that he had sexually assaulted and/or raped the complainant. He denied that he had ever requested a blow job or oral sex.

The process of identification from the photoboard

On 5 September 2020, after the complainant had returned to Japan, police emailed the complainant, telling her: ‘we have a rape suspect and you can help us with the photoboard’.[3]
[3]The Court was told that the police’s emails were translated into Japanese using Google translate whereas the complainant’s emails were in English.
On 6 September 2020, the complainant replied to this email with: ‘I will cooperate for you as much as I can… but I don’t remember the details facial features… I couldn’t see well because it was dark… I don’t have a confidence to see a suspected person photos … It might look different in a bright place.’
On 9 September 2020, police emailed the complainant attaching a photoboard. The photoboard depicted the faces of 12 Asian men. The applicant was included at photo ‘No 5’. The other men’s faces, as depicted, had been obtained by placing the applicant’s image into iFACE (a facial recognition system). That system returned images that were similar in appearance to the applicant’s appearance. The email sent to the complainant contained the following statement:
You will be asked to look at a group of images in the picture. The fact that an image is shown should not influence your decision. Do not conclude or infer that the group of photos contains images of the person/item you were asked to identify. You are not obligated in any way to identify anyone or anything. Please look carefully at each photo and indicate if you can identify the person/item whose photo appears there. Please do not discuss the incident with other witnesses or indicate to others who witnessed it in any way that identifies anyone or anything.
A little under two hours later, the complainant emailed police. In her email she stated:
Thank you for sending the photo. I probably think No.5 person. I think this is the closest my memory. I was scared when I saw him photo. I am trying to recall that day. I didn’t have any thoughts about other people.
As noted above, the complainant gave viva-voce evidence on the application to exclude before the trial judge. In her evidence she said that she believed that the purpose of receiving the photoboard was ‘to identify the face of the perpetrator’. She said that she only communicated with police by email after she had returned overseas. She could not recall if there were any instructions received as to what she should do with the photoboard. Nevertheless, she understood that she was being asked to let police know if she could see ‘the face similar to the perpetrator in the photos’. She was at home when she received the email from police; she thought that she was alone. She looked at the photos and did not speak to anybody about that process. She said that she did not ‘conduct any search regarding this incident’. She said that she did not show the photos to anybody else.
The complainant said that in September 2020 she had tried to contact somebody from the massage parlour but had failed to get in contact with anybody. She did this, she said, because she thought that ‘maybe [she] can see the face of the perpetrator’. She thought that ‘other workers might know about him’. She said that she thought that she used both English and Japanese when she wrote back to the police in her emails. She said that she had written the email of 9 September 2020 saying ‘I probably think No. 5 person’.
When cross-examined, the complainant said that she did not think that anyone else had access to her email account. She said that she was living with her husband in August and September 2020. She confirmed that she had written the emails to police. She said that she might have used ‘Google Translate’ to check the accuracy of her English. She said that no-one was living with her apart from her husband. She said that she thought that she recalled receiving the email of 5 September 2020 from police — the one informing her that police had a rape suspect and which asked her for help with a photoboard. When asked whether she thought that the photoboard would include a photo of the person who had attacked her, the complainant answered:
I thought he was there but I wasn’t 100 per cent certain, and that’s why I responded email in that manner.
…
I’m not quite sure because I wasn’t quite sure if the … police could … conduct that investigation. I was expecting them to do that but I’m not — I wasn’t quite certain. So I’m not sure when I first received it.
…
I think — I thought there would be the one because I knew the person — the owner of the premises knew the person.
When asked whether she thought that police would have obtained a photo of her attacker because that person was known to her boss, the complainant responded:
I thought they identified him. I’m not quite sure if the police got the photo from them — from him.
The complainant ultimately said that she did not know how the police had got the photo of the person that she identified. She said that she was ‘hoping’ her attacker was included in the photoboard.
The complainant also said that she thought that she remembered emails from police in which police asked her whether she was able to do a video-call. She said that she did end up having telephone conversations with the police, but she could not remember the date of any such conversations. The complainant said that she was ‘not that confident’ but that she thought that any such telephone call was after she had received the photoboard. She did not know if this conversation was before she told police about the particular photo that she had identified.
She was asked about her email to police of 6 October 2020. She said that she thought that the contents of this email were correct. She was asked whether she had tried to contact any of her ex-colleagues at the massage parlour after police had told her that they had a suspect, but before police provided her with the photoboard. She said that she had not. She said that she had made the attempts to contact her ex-colleagues after she had returned to Japan in 2020 which, she said, ‘would be the ah autumn’ and ‘last year’ when she ‘spoke as a witness’.[4] She said that she told police ‘last year’, when she was in Australia, that she had tried to contact her ex-colleagues but that she had failed to get in contact with any of them.
[4]The complainant gave evidence at a committal hearing in Melbourne on 14 March 2023.

It was suggested to the complainant, in respect of the 6 October 2020 email that she sent, that she was trying to tell police that she did not think that she was going to be able to identify anyone. To this the complainant responded:
Yes I wasn’t hundred per cent confident but what I did was I picked one ah based on my gut feeling.
When it was put to her that she was trying to convey to police that there was an ‘issue’ with her memory, she responded:
I wasn’t 100 per cent confident, but I gave the police the detail when I made the statement, so I presume they picked the people who close to the description I stated in my statement.
When it was suggested to the complainant that she said to police that the conditions in which the person attacked her were such that she could not get a good look at the person’s face, she responded:
It was — it was — I was sure that I was panicking then.
…
I was panicking then. I still didn’t understand.
She agreed that she had told the police that it was dark. She said that ‘It happened all of a sudden, so I was very surprised’.

Submissions of the parties to the trial judge

The applicant’s case before the trial judge was predicated entirely upon ss 135 and 137 of the Act.
It was submitted, generally, that identification evidence ‘is seen to be inherently fragile’; that evidence of this nature is ‘particularly seductive’ and that ‘judicial experience’ has revealed that ‘witnesses who appear honest and convincing can be mistaken and that serious miscarriages of justice can occur as a result’. All this, it was submitted, is recognised by the terms of s 36 of the Jury Directions Act 2015 (‘JDA’). The applicant contended that there was an ‘inherent risk of misuse’ of picture identification evidence and that not all unfair prejudice can be cured by judicial direction. The need for a judge — at the stage of deciding whether or not to admit evidence — to accept the impugned evidence at its highest may mean that the probative value of the evidence is not very high at all.
It was submitted that the process by which the present identification was conducted was ‘highly irregular’. It occurred by means of email, without the usual precautions of ‘records’ or ‘notes’ or a ‘video recording’. It was submitted that there had been some earlier discussion about a possible ‘video call’ between the police and the complainant, yet this had not eventuated. It was put that the applicant had been deprived of the means of ‘exploring’ the circumstances concerning how the complainant had come to select the particular photograph chosen. There was no way of knowing for certain whether other persons were present for the process of identification; whether the complainant was in contact with any of her ex-colleagues at the massage parlour at any material time; or precisely how long the process of identification had actually taken. It could not be known for certain whether the complainant made any ‘independent enquiries’ during the period that she was considering the photoboard. The applicant, it was submitted, was deprived of any ability to gauge the complainant’s body language; her reaction; or her facial expressions. It could not be known, for instance, whether the complainant had prevaricated prior to making the identification.
The photoboard was viewed by the complainant some 11 months after the alleged offending. The applicant submitted that his photo, of the 12, was — with one exception — the only photo of a man smiling; the rest were said to have ‘stern expressions’. This was important, in circumstances where the complainant had described her assailant as ‘very smiley’. The ultimate expression by the complainant in her email to police of her opinion that the man who assaulted her was depicted at photograph ‘No. 5’ was an assertion that was uttered in ‘equivocal terms’. As with the impugned identification evidence in R v Dickman[5] — the probative value of which was described by the High Court as ‘low’ — the complainant’s identification evidence in this case was ‘heavily qualified’. Counsel submitted that, ultimately, it was only ‘an assertion of resemblance’. This was in circumstances where, already in her email of 6 September 2020, the complainant had expressed clear reservations about her ability to make an identification. All this meant that the identification itself was ‘plainly unconvincing’; it was in the category of J D Heydon QC’s ‘foggy night’ example that was described by the High Court in IMM v The Queen.[6]
[5](2017) 261 CLR 601, 614–15 [43], 615 [47] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); [2017] HCA 24 (‘Dickman’).
[6](2016) 257 CLR 300, 314–15 [50] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14 (‘IMM’).
It was submitted that there was also a risk of ‘displacement’. This risk arose because the applicant admitted having attended at the complainant’s massage parlour. It was possible that the complainant selected the applicant from the photoboard because she had seen him in entirely innocent circumstances.
The applicant emphasised that the complainant’s description of the man who had assaulted her was, in the main, a description of the man’s body and size; it was not a description of his face. It was put that the potential for ‘cross-racial identification’ was also a difficulty.
It was submitted that there was also a risk of false-identification on account of police suggestion. This arose because the informant had advised the complainant, prior to the act of identification, that police had a rape suspect.
The respondent, on the other hand, characterised the probative value of the complainant’s identification evidence as ‘moderate–high’ to ‘high’. In writing, the respondent submitted that the identification evidence had ‘significant probative value’ on account of the other circumstantial evidence of identity upon which the prosecution was able to rely.
The respondent submitted that there was no danger of significant unfair prejudice; any residual prejudice could be cured by appropriate directions. The respondent emphasised that all interactions between the complainant and police were disclosed in email correspondence and this could be cross-examined upon. The complainant could be cross-examined about her actions over the two-hour period that it took her to respond to the police after she was sent the photoboard. It was submitted that the notion that other persons might have been present with the complainant when she made her identification, or that the complainant made material enquiries of others that were relevant to the act of identification, was pure speculation. The respondent contended that the photoboard photos numbered two, four, five, eight, nine and 12 all depicted men with smiling faces. The respondent emphasised that, in her statement, the complainant had described the man as having ‘a really unique face’.
It was accepted by the respondent that the qualified manner in which the complainant expressed her identification of the applicant somewhat reduced the probative value of her identification evidence. But the respondent contended that such qualification could be readily understood by the jury and there was no danger of evidence of this nature being accorded excessive weight. The jury could be directed as to this particular matter; indeed it was submitted that judicial directions were the means by which any generalised ‘seductive effect’ of identification evidence could be curtailed.

The ruling

The judge saw no basis to exclude the complainant’s identification evidence under ss 135 or 137 of the Act. The judge thought that it ‘seem[ed] clear’ that due to the travel restrictions which were imposed as a result of the COVID–19 pandemic, and the complainant’s presence overseas, it was considered by police necessary to deal with the complainant by means of email.[7] The judge noted that, notwithstanding the complainant’s concerns about making an identification, she did ultimately nominate the applicant. The judge observed, in respect of the complainant: ‘No doubt given [the complainant] had been [in the applicant’s] company on two occasions for approximately two and half hours, [the complainant] may have underestimated her capacity’.[8]
[7]Ruling, DPP v Kai Pham (a pseudonym) (Judge McInerney), 55.
[8]It was accepted at the hearing before this Court that his Honour had misspoken in this respect and had meant to say: ‘No doubt given she had been in [the man’s] company on two occasions for approximately two and half hours, she may have underestimated her capacity’.
The judge considered that:
If there was no COVID and if she did not live in Japan at the time no doubt a far better process could have been exercised, where more precautions could have been taken rather than what we might call the informal circumstances.[9]
[9]Ruling, DPP v Kai Pham (a pseudonym) (Judge McInerney), 55–6.
The judge cited a passage from the judgment of McHugh J in Festa v The Queen,[10] and then ruled in the following terms:
I find the evidence has a high probative value in the circumstances of this case. And, albeit defence might suggest that it is weak evidence, it is only where that balance is outweighed that the Crown can be deprived, to use [McHugh J’s] words, of the use of relevant, but weak evidence.
The assessment of evidence as we know at this stage is not a matter for me. Indeed as said in Rozenes v Beljajev [1995] 1 VR 533, 553, it is not for the Court to make any determinations on the weakness of evidence. A determination of the strength of evidence is a matter for the jury.
In the circumstances I do not uphold the application and I refuse to exclude the evidence, under either of the sections. Whatever weaknesses it is suggested there is with the evidence clearly can be put to the jury for their assessment, but in this case I find the probative value of the photo identification is not extinguished by the danger of unfair prejudice to the accused.
And I so rule.[11]
[10](2001) 208 CLR 593, 609 [50]–[51]; [2001] HCA 72 (‘Festa’).
[11]Ruling, DPP v Kai Pham (a pseudonym) (Judge McInerney), 56–7.

The applicant’s submissions in this Court

The applicant originally submitted that the determination of the applicant’s ground of appeal was to be resolved through application of the test expressed by the High Court in House v The King.[12] Nevertheless, in written submissions filed after the oral hearing in this matter the applicant submitted that, given reliance was placed in this Court solely upon s 137 of the Act, and given the question whether evidence is admissible under s 137 is productive of only one correct answer, the standard of appellate review that ought be applied by this Court is what has been described as the ‘correctness’ standard.[13] The applicant submitted, in the alternative, that if House-type error was required to be established then such error had been shown.
[12](1936) 55 CLR 499, 505 (Dixon, Evatt and Mctiernan JJ); [1936] HCA 40 (‘House’).
[13]Warren v Coombs (1979) 142 CLR 531; [1979] HCA 9.
The applicant’s submissions in this Court focussed upon the operation of s 137. Those submissions largely mirrored what had been put to the trial judge. It was submitted that the ‘combination’ of the matters relied upon before the trial judge was such as to render the complainant’s identification evidence very weak. Additionally, the trial judge, in his assessment of the probative value of the impugned evidence, had failed to take into account certain material considerations. These considerations included: the period of time that the complainant had the photoboard in her possession before responding to police; the inability of the defence to interrogate the way in which the complainant’s identification was made; and the inability of the jury to actually see the complainant’s act of recognition and make its own assessment of that process.
Counsel for the applicant raised for consideration the fact that police had indicated to the complainant, prior to her actual identification, that they had a rape suspect. It was submitted in respect of this particular matter:
very little may turn on that because as a matter of common sense and logic, a complainant is not going to be asked to view a photoboard unless the police have some sort of belief that one of the people depicted in the photoboard may have been involved in the commission of an offence.
As had been submitted to the trial judge, the applicant argued that the complainant’s identification in this case was akin to the identification ‘made very briefly in foggy conditions and in bad light by a witness who did not know the person identified’, namely, the sort of identification described in IMM that might attract the descriptors ‘weak’ or ‘simply unconvincing’.[14] As counsel for the applicant put it:
Now putting aside foggy conditions, this is an identification said to be made of someone who has attacked the complainant in a small room inside but the witness herself says that it was dark, that she didn't see her assailant’s face very well, she doesn't remember and where there is no pre-existing relationship between the two in that the example and IMM is a witness who did not know the person identified, there is some flavour of suggestion of that in this matter as well.
[14]IMM (2016) 357 CLR 300, 315 [50] (French CJ, Kiefel, Bell and Keane JJ).
As to the process of identification adopted by the investigative authorities in the present case, the applicant eschewed any suggestion that there had been impropriety. Whilst the method adopted might not have been ‘best practice’,[15] it was acknowledged that due to travel restrictions caused by the COVID–19 pandemic, there was ‘a clear explanation for why the ordinary course wasn’t followed’.
[15]It was submitted that investigative authorities had given some consideration to conducting a ‘video call’ but for some unexplained reason this process had not been adopted.
But the applicant submitted that there were two critical problems with the process that was adopted. The first lay in the jurors’ inability to observe the complainant’s ‘act of recognition’ so that the finder of fact could make its own assessment of the complainant’s level of confidence. This was important in circumstances where, under cross-examination, the complainant had admitted that she was unable to say how long it took her to ‘view the photoboard’. One could not determine whether there was — for example — a long period of indecision. Secondly, a jury would find it difficult to understand or comprehend the particular prejudice that arose as a result.
The applicant contended that the level of prejudice was increased because of the importance of the identification evidence to the Crown case. It was submitted that the complainant’s identification evidence is crucial to conviction.

The respondent’s submissions in this Court

In written submissions filed after the oral hearing in this matter, the respondent submitted that the appropriate standard of appellate review to be applied in this case was the type referred to in House.[16] This was so, the respondent submitted, because this Court was relevantly bound by the five-member bench decision in KJM v The Queen (No 2).[17] Nevertheless, the respondent submitted alternatively that:
As section 137 of the Evidence Act 2008 is involved it is prudent for the Court of Appeal to decide the question on the ‘correctness test’ in addition to the House v The King test.
[16](1936) 55 CLR 499; [1936] HCA 40.
[17](2011) 33 VR 11; [2011] VSCA 268.
The respondent’s submissions in this Court, like the applicant’s, were largely a recapitulation of what had been put in the court below. The respondent submitted that the trial judge was correct to assess the identification evidence as being of ‘high probative value’. The respondent emphasised the content of the email sent by police to the complainant on 9 September 2020 and the warnings that this particular email contained. The respondent submitted that the complainant can be cross-examined at trial as to whether those warnings were followed. Directions could be given so as to curtail the existence of any unfair prejudice. The jury could, for instance, be directed concerning any earlier doubts that the complainant might have experienced about her ability to identify her assailant.
The respondent submitted that the process of sending the complainant the photoboard by email arose because of the travel restrictions caused by the COVID-19 pandemic. It was emphasised that the evidence on the voir dire established that the complainant was alone when she received the photoboard; and that she did not undertake any researches which bore materially upon her actual act of identification. Moreover, the complainant did not know her assailant’s name and so there was no obvious means by which she could have searched for him. It was submitted that there was no ‘significant unfair prejudice’ in the procedure that had been adopted.
Insofar as it was submitted by the applicant that the judge had failed to take into account certain nominated features of the case, the respondent submitted that ‘consideration of these factors was implicit in the trial judge’s reasons’.
The respondent emphasised the opportunity that the complainant had to observe the man who she said had raped her. She had given a ‘fairly specific description’ of that man. The complainant had the opportunity to observe the man’s face. The man was kissing the complainant, so she must have had a good opportunity to see his face. The complainant’s evidence was that she had not seen this man other than on the two occasions when she said that he had offended against her. Indeed, the complainant said that she recognised the man on the second occasion as a result of the massage that had taken place a week earlier. In these circumstances, it was submitted the risk of displacement was minimal. The fact that when viewing the applicant’s photo the complainant became scared bore, also, in a positive manner upon the reliability of the identification.

Legal principle

Standard of appellate review

At the time of writing, the High Court is reserved[18] on the question of whether the standard of appellate review — in Victoria on an interlocutory appeal — of a decision made concerning the admissibility of evidence pursuant to s 137 of the Act is (a) the standard described by the High Court in House or (b) the standard (sometimes described as the ‘correctness’ standard) described in Warren v Coombs.[19] Both parties in this case seek, albeit for different reasons, that this Court apply the ‘correctness’ standard. In these circumstances, it is apt to approach the present case — at least in the first instance — by determining whether the trial judge’s ruling was ‘correct’.
[18]Steven Moore (a pseudonym) v The King (High Court of Australia, M23/2024, commenced 5 June 2024).
[19](1979) 142 CLR 531; [1979] HCA 9.

Application of s 137

In oral argument on the present application the question arose concerning the necessity — since the High Court’s decision in IMM — when determining questions of admissibility under s 137 of the Act, for this Court to accept the impugned evidence at its highest, that is to say, absent consideration of the impugned evidence’s credit and reliability. This Court has consistently held, in this respect, that in assessing the probative value of such evidence for the purposes of s 137 it is permissible to take into account risks inherent in any latter process of identification such as the twin risks of displacement or suggestion.
In Moreno (a pseudonym) v The King[20] this Court considered that it may not always be easy to draw the line between matters of reliability (which must be ignored) and those matters that may properly impact upon an assessment of probative value under s 137.[21] But the Court in Moreno appeared to take the High Court’s decision in Dickman as authorising the factoring into account of risks of displacement and suggestion when it comes to an assessment of the probative value of identification evidence under s 137.[22]
[20][2023] VSCA 98 (‘Moreno’).
[21]Ibid [55] (Priest AP, Niall and Kaye JJA).
[22]Ibid [68].

This Court in Moreno held that a court may, in assessing probative value of impugned identification evidence under s 137, have regard to the ‘quality’ of the evidence. The ‘quality’ of the evidence might include ‘factors that attend[…] the later process of identification’, that is to say, factors separate to those that ‘affect[…] the initial observation (such as a foggy night)’.[23]
[23]Ibid.
The difficulty in demarcation between matters that must be ignored and those that may properly be taken into account was demonstrated in Moreno by reference to a number of recent decisions of this Court that deal with the admissibility of identification evidence.[24]
[24]Ibid [69]–[79].
For instance, in Bayley v The Queen[25] (a case where a notorious accused was picked from a photoboard after an intervening Facebook identification) this Court considered it consonant with IMM, when assessing the probative value of identification evidence for the purposes of s 137, to have regard to the following matters: the time that had elapsed between the offending and the later identification (12 years in Bayley); whether the identification evidence in truth rose no higher than evidence of similarity; and the quality of the later identification.[26] As the Court in Bayley observed, when it came to the probative value of the identification evidence in that case:
The evidence regarding the Facebook photograph was in some respects no better than a dock identification. Indeed it could reasonably be viewed as worse. [The witness] was faced with the single photograph in circumstances that were themselves highly suggestive of guilt of the most serious crimes imaginable. Evidence of that kind has often been excluded and is commonly regarded as insufficient, on its own to support a conviction.[27]
[25](2016) 260 A Crim R 1; [2016] VSCA 160 (‘Bayley’).
[26]See Moreno [2023] VSCA 98, [69]–[76] (Priest AP, Niall and Kaye JJA).
[27]Bayley (2016) 260 A Crim R 1, 19 [94] (Warren CJ, Weinberg and Priest JJA).
Yet, in DPP v Hague[28] ‘inherent contradictions’ and ‘internal inconsistencies’ in an identification witness’ account were to be ignored for the purposes of the assessment of probative value under s 137.[29]
[28][2018] VSCA 39 (‘Hague’).
[29]Ibid [26], [28] (Maxwell P and Beach JA).
In Dempsey (a pseudonym) v The Queen[30] it was permissible for the Court to take into account under s 137 the circumstances in which the witness observed the person who perpetrated the offence as well as the nature of the identification undertaken by the witness when that person was later shown a photoboard. But it was impermissible to take into account the identification witness’ initial reluctance to participate in the identification process; or that the witness only participated in this process after having received three requests from the informant to do so; and that the witness was concerned that he himself might be charged with criminal offences arising out of the relevant incident.[31]
[30][2019] VSCA 224.
[31]Ibid [127]–[131] (Beach, Kaye and Ashley JJA).
Subsequent to Moreno, in Fowkes v The King[32] (a Facebook identification case) this Court acknowledged — perhaps uncontroversially — that the necessity to assume that the evidence of an identification witness is both credible and reliable did ‘not dictate that factors affecting the initial observation of the offender … are not relevant to an assessment of the probative value of that evidence’.[33] Moreover, echoing the Moreno Court’s assessment of the significance of Dickman, the Court observed as follows:
Further, as Dickman makes clear, the factors which may be taken into account in determining the probative value of the evidence include the circumstances that attended the later process of identification of the offender by [the two identification witnesses].[34]
[32](2023) 72 VR 95; [2023] VSCA 160 (‘Fowkes’).
[33]Ibid 118, [69] (Emerton P, Priest and Kaye JJA).
[34]Ibid.

Application of legal principle

According to this authority it appears to be accepted that a Court making an assessment of the probative value of identification evidence for the purposes of admissibility under s 137 may have regard to the circumstances that surround the identifying witness’ initial observation of a certain person.[35] The High Court in Dickman appears to have given approval to the notion that identification evidence that is in the nature of evidence of mere ‘resemblance’ — that is, where the identifier is other than ‘adamant’ that the person identified was the offender — may also be a relevant consideration for the purposes of an assessment of probative value under s 137.[36] This Court in Moreno, and in Fowkes, has interpreted Dickman as authorising the taking into account of risks of displacement and suggestion inherent in a later process of identification such as the use of a photoboard or picture.
[35]IMM (2016) 257 CLR 300, 312 [39], 314–15 [50] (French CJ, Kiefel, Bell and Keane JJ).
[36]Dickman (2017) 261 CLR 601, 614 [43], 615 [47] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
In this case, we consider that when all the matters upon which the applicant relies are taken into account for the purposes of s 137, the conclusion must follow that the trial judge was correct to admit the complainant’s identification evidence.

Probative value

The terms of the complainant’s email to the informant of 9 September 2020 were, to repeat, as follows: ‘I probably think No. 5 person’ and ‘I think this is the closest my memory.’ The probative value of the complainant’s identification evidence must thus be seen to be limited, or lessened, by virtue of its qualified nature. This evidence is in the nature of evidence of ‘resemblance’, or ‘similarity evidence’, or what might be described as ‘circumstantial identification evidence.’[37]
[37]R v Dupas (No 3) (2009) 28 VR 380, 454 [311]–[312] (Weinberg JA); [2009] VSCA 202 (‘Dupas’).
As noted in [55] above, the applicant placed little emphasis upon the risk of suggestion and the impact that such a risk might have on the probative value of the impugned identification evidence in this case. Nevertheless it must be acknowledge that in light of the High Court’s reasoning in Dickman it was wrong for police to convey to the complainant the impression that a suspect’s photograph was likely included in the photoboard that was sent to her.[38] Applying what the High Court had to say on this point, conveying this to the complainant was likely to undermine the warnings that were contained in the email of 9 September 2020 that attached the photoboard.
[38]Dickman (2017) 261 CLR 601, 618 [55] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
As to any risk of displacement arising from possible innocent contact between the applicant and the complainant, we consider this risk to be rather more theoretical than real. Unlike in Dickman where there was no doubt that the identifying witness had earlier seen the accused on CCTV footage, in this case the evidence is that the complainant saw the same man on only two occasions a week apart. The complainant said that she recognised the man on the second occasion from their meeting a week earlier. In these circumstances the risk of displacement from a chance meeting (in respect of which there is really no evidence) seems rather speculative.
The complainant’s email of 6 September 2020 in which she doubted her memory of the applicant’s facial features, described a lack of ability to see well because it was dark, and expressed a lack of confidence to ‘see a suspected person photos’ must all be assessed against the back-drop of certain obvious circumstances that arise from the complainant’s description of the offending in her statement to police. Those circumstances are that the offender was in the complainant’s presence for an extended period and on two separate occasions. It might be thought that acceptance of the complainant’s account of the offending impels the conclusion that she had ample opportunity to see the offender’s face.
Obviously, the longer the delay between the offending and the complainant’s viewing of the photoboard, the greater the risk that the complainant’s memory may have been adversely affected. Here the period was 11 months. But the complainant was describing events which — as her evidence on the voir dire appeared to confirm — meant that her senses were somewhat heightened. Again, the complainant had two separate opportunities to view her assailant.
In all these circumstances, we cannot agree with the trial judge that the impugned evidence is of ‘high probative value’. We would assess the probative value of the impugned identification evidence as ‘moderate’, or perhaps even as ‘moderate to low’.
Before leaving the question of the assessment of the probative value of the impugned identification in this case, it is perhaps necessary to acknowledge the submission that was made in writing by the respondent — both before the trial Court[39] and in this Court — which contended that it was relevant to the assessment of the probative value of the photoboard identification evidence, for the purposes of s 137, that there existed independent circumstantial evidence of identity in the Crown case such as the evidence of telephone records and admissions made by the applicant in his record of interview. This submission, as we understood it, was that the impugned photoboard identification evidence could increase in probative value, for the purposes of the s 137 assessment, because of the independent circumstantial evidence of identity. When asked by a member of the bench at the hearing whether this submission was pressed, it is fair to say that counsel for the respondent equivocated somewhat: ‘I would like to say yes and no’. In view of this equivocation we have not taken the written submission (referred to above in this paragraph) into account in our assessment of probative value.
[39]See paragraph [47] above.

Unfair prejudice

Unfair prejudice relied on by the applicant that was said to be ‘unfair’ stemmed, so it was submitted, from the ‘inherent fragility’ of identification evidence or such evidence’s ‘seductive’ nature.
But, as the respondent submitted, the High Court in Dickman has observed[40] that the ‘seductive effect’ of identification evidence was something that, at common law, led to the need for appropriate directions and/or warnings of the type described by the High Court in Domican v The Queen.[41] As the High Court stated in Dickman, Domican ‘did not suggest that the seductive effect of identification evidence cannot be addressed by judicial direction’.[42]
[40]Ibid 615 [45].
[41](1992) 173 CLR 555, 561 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1992] HCA 13 (‘Domican’). See, now, s 36 of the JDA.
[42]Dickman (2017) 261 CLR 601, 615 [45] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
Moreover, and as in Dickman, the complainant’s identification evidence in this case — given its qualified nature — ‘was unlikely to have the seductive effect of an identifying witness who is adamant that the accused is the offender’.[43]
[43]Ibid 615–6 [47].
The real gravamen of the applicant’s case for unfair prejudice was that he was reliant on the testimony of the complainant when it came to her activity over the two-hour period which elapsed from when she first received the email from police attaching the photoboard to when she responded with her answer: ‘I probably think No. 5 person’. There was no independent evidence recording the complainant’s process of identification; and it is true that the complainant’s memory of her precise actions over that period had — at least to some extent — dimmed. It was accepted that the need to email the complainant arose because she was overseas; and it was accepted also that at the time of the identification there were travel restrictions. As has already been noted, it was briefly suggested before the trial judge that the possibility of a video-call with the complainant had been canvassed.
It must be recalled that the complainant’s evidence was that she was alone when she carried out the process of identification. Her evidence was that this process was conducted free of independent suggestion.
It may be accepted that the applicant suffers some disadvantage consequent upon the method of identification that was adopted in the present case. But the circumstances that prevailed must bear upon the extent of any unfairness. Whilst the possibility of some alternative method — namely, a video-call — was raised in submissions before the trial judge, it is not apparent — at least on the material before this Court — whether this alternative was ever a realistic or practicable option.
The complainant can be cross-examined about her actions over the relevant two-hour period; and, if need be, the jury can be warned about the particular disadvantage relied upon here as part of a direction given in accordance with s 36 of the JDA. We consider that a jury would readily be able to comprehend any disadvantage suffered by the applicant due to the lack of any recording of the complainant’s process of identification.
Insofar as the suggestion to the complainant by police that they had a suspect might give rise to a suspicion on the part of the jury that police possessed incriminating evidence against the applicant independent of evidence to be ventilated at trial, this suspicion may readily be guarded against. As was candidly acknowledged by counsel for the applicant before this Court, it was via the evidence of the mobile phone connected with the applicant, and its contact with the complainant’s boss on the days on which the complainant was offended against, that police came to connect the applicant with the offending. In other words, the jury will be apprised through the prosecution evidence of the provenance of the police’s belief that the applicant was a suspect.[44]
[44] Ibid 618 [56].
In all the circumstances we assess the danger of unfair prejudice flowing to the applicant consequent upon the admission of the complainant’s identification evidence as only slight.

Conclusion

Having assessed the probative value of the impugned identification evidence as ‘moderate’ or ‘moderate to low’, and the danger of unfair prejudice as only ‘slight’, we are unable to conclude that the probative value of this evidence is outweighed by the danger of unfair prejudice to the applicant. On this basis, we conclude that the trial judge was correct to admit the impugned identification evidence.
Having found that the trial judge was correct to admit the evidence it must be concluded that the applicant has either failed to establish House-type error or that the establishment of such error could lead to a different result.[45]
[45]It may be assumed that were House-type error established this Court would either affirm the decision below or decide the case for itself: see s 300(2)(a) & (b)(i) of the CPA.
In these circumstances leave to appeal must be refused.
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[2024] VSCA 159

10 July 2024