Citation: Regina v Michael Filitis [2004] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 11 February 2004
Judge(s): Sully J, James J, Hulme J
Background
The accused stood trial in the District Court at Campbelltown on charges of assault, wounding with intent to murder, and wounding with intent to cause grievous bodily harm arising from a serious stabbing incident in July 2002. The Crown called the victim as a witness and tendered two video recordings of identification procedures conducted in October 2002. In the second procedure, the victim identified a photograph as depicting the person who stabbed him, though he expressed clear reservations about his certainty.
Defence counsel did not object to the identification evidence until after it had been admitted and placed before the jury. After the Crown case concluded, the defence applied to withdraw the identification evidence. The trial judge ruled that the probative value of the evidence was outweighed by its prejudicial effect and directed that the identification from the 15 October 2002 procedure be withdrawn from the jury.
The Crown appealed that ruling under section 5F (taken as section 5A in the proceedings) of the Criminal Appeal Act 1912, arguing the trial judge had erred in excluding the evidence.
Legal Issues
- Whether the trial judge correctly applied sections 135 and 137 of the Evidence Act 1995 in weighing the probative value of the identification evidence against its prejudicial effect
- Whether, in assessing probative value, the trial judge was required to consider the identification evidence in the context of the broader Crown case rather than in isolation
- Whether a separate and specific finding as to the degree of prejudicial effect was required before the evidence could be excluded
Decision
The Court of Criminal Appeal found that the trial judge had erred in the application of section 137. While the trial judge correctly identified the identification evidence as weak and of low probative value, his Honour failed to make the distinct and necessary finding about the extent to which the evidence's prejudicial effect actually and substantially outweighed that probative value. These are two separate factual inquiries, and conflating them constitutes an error.
More significantly, the Court held that the trial judge had assessed the probative value of the identification evidence in isolation, without reference to the other evidence in the Crown case. Sully J and Hulme J both emphasised that weak identification evidence does not automatically warrant exclusion. Where other evidence tends to establish an accused's guilt, the probative value of identification evidence must often be assessed by reference to the totality of the Crown case.
Hulme J added a further observation, noting that the weakness of identification evidence can arise in two quite different ways: from flaws in the identification procedure itself (going to reliability), or simply from the identifying witness expressing reservations despite an otherwise fair procedure. These two situations may warrant different treatment when assessing probative value and the appropriateness of exclusion.
The Court also observed, without it forming a basis for the appeal, that a separate ruling by the trial judge excluding evidence of two other individuals seen with the accused appeared to be erroneous. That evidence was said to be relevant because the victim had identified those individuals as persons who had not stabbed him, which could have bearing on guilt if the prosecution case was that the offence was committed by one of a known group.
Orders Made
- Appeal allowed
- Ruling of the trial judge vacated
- Matter remitted to the District Court
Key Takeaways
- Under section 137 of the Evidence Act 1995, a trial judge must make two distinct findings: first, the probative value of the evidence, and second, the degree to which the prejudicial effect substantially outweighs that probative value. Merging these inquiries constitutes reversible error.
- Weak identification evidence does not, without more, justify exclusion. Where other Crown evidence tends to establish guilt, probative value must generally be assessed in the context of the whole case.
- The Court of Criminal Appeal distinguished between identification evidence that is weak due to procedural unfairness or reliability concerns, and evidence that is weak merely because the witness expressed uncertainty. These two categories may call for different analyses under the exclusionary discretion.
- A finding that evidence has "low probative value" is a necessary but not sufficient step toward exclusion under section 137. A further, separate assessment of the magnitude of the prejudicial effect remains required.
- Evidence that an identifying witness positively excluded certain persons from suspicion may itself be admissible where the prosecution case involves a defined group of potential offenders, a point the Court noted for the benefit of any judge presiding over a retrial.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5A (s 5F)
- Evidence Act 1995 (NSW), ss 135, 137
Cases
- Domican v The Queen (1992) 160 CLR 583
- Festa v The Queen [2001] HCA 72