THD v The Queen [2010] VSCA 115: a question of fact and degree

The Court of Appeal determined this interlocutory appeal under s 298 of the Criminal Procedure Act 2009 last week. The Crown agreed that its case depended on a photoboard identification.

THD v The Queen [2010] VSCA 115

Counsel took issue with the photoboard in three respects, unsuccessfully in the trial court and again on appeal. The conduct of the identification and the photoboard itself was considered to be fair.

It was held [by Maxwell P at 21] that generalised submissions about fairness were inappropriate, and that specific provisions in the Evidence Act should be invoked to resolve these issues.

24 The application for leave to appeal has proceeded on the basis that the judge was deciding a question arising under s 137, which provides for mandatory exclusion when the court comes to the conclusion identified in the section. No occasion arises on this application to consider how the balancing exercise in s 137 is to be undertaken – between probative value, on the one hand, and the ‘danger of unfair prejudice to the accused’ on the other. I simply wish to emphasise that, in the new Evidence Act environment, it is the responsibility of trial counsel – defence and prosecution – to do as the prosecutor sought to do here, namely, to identify for the trial judge the statutory question or questions to be addressed. This will ensure that the court, in deciding the evidentiary or other question, directs itself correctly.

Whether an appeal of a judge's ruling under s 137 of the Evidence Act 2008 is to be determined according to the principles of House v The King (1936) CLR 499 has yet to be decided. (For more on this, see my post over at the Criminal Procedure Act blog). Interestingly, Maxwell P did seem to think so (slightly at odds with PNJ v DPP [2010] VSCA 88) but decided it wasn't necessary to answer the question in this case. Nettle JA was more definite that the fair composition of a photoboard is 'a question of fact and degree' and so to be resolved on appeal using the principles in House, and Neave J agreed with them both.