Reliability of evidence is a relevant consideration in assessing probative value for the purposes of s 137 of the Evidence Act 2008 (Vic), and R v Shamouil is wrongly decided insofar as it holds otherwise. The assessment of probative value under s 137 requires the court to consider the capacity of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue, which necessarily involves consideration of the reliability of the evidence. However, the court must assess the evidence at its highest — that is, assuming the jury accepts it — while still taking into account factors affecting reliability that bear on the rational capacity of the evidence to prove a fact in issue. Expert evidence on the general dangers of identification evidence is admissible, but an expert cannot opine on the reliability of specific identifications without proper foundation. Under ss 164 and 165 of the Evidence Act, there is no obligation to give a corroboration warning regarding prison informer evidence.
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