The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the admissibility of photoboard identification evidence. The respondent was convicted of intentionally causing serious injury and making a threat to kill on the basis that he was the ‘old man’ who participated in a gang bashing, as identified by the victim, who selected him from a photoboard two years after the crime (but had made other wrong selections at the time). A majority of the VSCA allowed his appeal against conviction, holding that the trial judge erred in failing to exclude the photobaord evidence because its ‘seductive quality’ outweighed its weak probative value, setting aside the convictions and ordering a new trial. Before the High Court, the Crown sought to challenge these conclusions, and contended that the VSCA erred in assessing the probative value by reference to the complainant’s unreliability.

The High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) unanimously allowed the appeal and restored the convictions, holding that the real issue was the majority’s conclusion that the identification’s probative value was outweighed by the danger of unfair prejudice to the respondent: that risk was minimal, and even if the identification was put aside, the conviction was still inevitable (at [3]–[5]). Noting that unfair prejudice can be occasioned where evidence has some quality which is apt to lead the jury to give it more weight than it warrants or draw an inference about a matter that would ordinarily be excluded, the Court noted that here that risk was the inference that the accused had a criminal record, said to arise from the unsatisfactory features of the identification (at [48]). While the police were wrong to convey to the complainant that the suspect’s photo would be included in the photoboard (see at [50]ff and especially [55]), it still should have been admitted because its probative value outweighed the danger of unfair prejudice: the risk that the jury would infer that the police’s suspicion about the respondent was based on matters that were not in evidence was not a real one in this trial because the reasons for the investigation’s focus on the respondent were clear from evidence that was before the jury (see details at [56]).

Even if that admission had been in error, it did not follow that that error would have occasioned a substantive miscarriage of justice because, even without the identification evidence, the conviction was inevitable (at [58]ff): given the evidence of other witnesses and the evidential issues that were tested in the trial, the possibility that someone besides the respondent was the ‘old man’ was excluded beyond a reasonable doubt, and the conviction was inevitable (at [63]). The Court made orders allowing the appeal and remitting the matter to the VSCA to determine the respondent’s pending application for leave to appeal against sentence (at [64]).