On appeal from the Supreme Court of New South Wales
Representation:
T A Game SC with H K Dhanji for the appellant (instructed by Legal Aid Commission of New South Wales)
R D Ellis with S C Dowling for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Dhanhoa v The Queen
Evidence – Identification evidence – Where reliability of evidence not in dispute – Whether trial judge required to inform jury of special need for caution before accepting evidence – Evidence Act 1995 (NSW), s 116.
Evidence – Inconsistency between appellant's statement to police and his evidence at trial – Where prosecutor did not contend that statement to police was a lie indicating consciousness of guilt – Whether trial judge should have given direction in relation to lies.
GLEESON CJ AND HAYNE J. The appellant was convicted of robbery in company with wounding, and kidnapping. The victim, Mr Schembri, gave evidence that, on the evening of 19 January 1999, he met four men of Indian or Sri Lankan appearance in a hotel. At his invitation, they accompanied him back to his flat. There, after a brief interval, all four of them set upon him, wounded him, robbed him, took him from his flat at knife-point and attempted to force him into a car with a view to taking him to an automatic teller machine. Mr Schembri said that the time between arriving at the flat and leaving seemed about 15 or 20 minutes. In cross-examination he said that four to five minutes elapsed between his arrival at the flat and the commencement of the attack. It was suggested to Mr Schembri in cross-examination that the violence commenced later than he indicated, but he adhered to his evidence that he was attacked only a few minutes after he arrived at his flat, and rejected the proposition that half an hour or more elapsed between his arrival at the flat and his being taken out to the street.
The prosecution case was conducted as one of joint criminal enterprise; the case did not depend upon assigning to the appellant any particular individual role in the events that occurred. The trial judge, in his summing-up, told the jury:
"The Crown says you will be satisfied beyond reasonable doubt that at all relevant times the accused was present when the acts described by Mr Schembri took place and therefore he is jointly responsible with the other three men [for] the robbery and wounding of Mr Schembri and also the taking…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dhanhoa v The Queen [2003] HCA 40
Case
[2003] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Raju Kamaljeet Dhanhoa against his conviction for aggravated robbery and unlawful wounding. Dhanhoa's appeal to the Court of Criminal Appeal had been dismissed, and he sought special leave to appeal to the High Court on grounds relating to identification evidence and the trial judge's failure to direct the jury on alleged lies told by the appellant to police.
The legal issues before the High Court concerned whether the trial judge was required to inform the jury of the special need for caution when considering identification evidence, pursuant to s 116 of the *Evidence Act 1995* (NSW), and whether a direction concerning lies was necessary, particularly when the prosecution did not contend that the appellant's statement to police indicated a consciousness of guilt.
The Court held that the trial judge was not required to give a direction concerning identification evidence in this case. While the victim's identification of Dhanhoa from a photograph and his testimony could technically fall within the definition of identification evidence, the Court found that the reliability of this evidence was not in dispute. Regarding the alleged lies, the Court acknowledged that a direction concerning lies would have been preferable, but ultimately concluded that Dhanhoa had failed to establish that such a direction would have reasonably affected the jury's verdict. Therefore, no miscarriage of justice had occurred.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
This Court granted Dhanhoa special leave to appeal on two grounds relied on in the Court of Criminal Appeal – identification and lies – and on the further ground that that Court had failed to give adequate reasons for its decision. No oral submissions were made on the hearing of the appeal by this Court upon that third ground of appeal. It is well settled that, in giving its reasons, the Court of Criminal Appeal was obliged to articulate the essential grounds for the formation of its conclusions[15]. The question whether the Court of Criminal Appeal did so in the present case is subsumed by the conclusion reached in this Court, upon its examination of the record, that the result reached by the Court of Criminal Appeal, in dismissing the appeal to it, should not be disturbed. Hence it is unnecessary any further to consider the third ground of appeal to this Court.[15]Dinsdale v The Queen (2000) 202 CLR 321 at 329 [21].The material facts The victim testified that, while at the Bridge Hotel in Rozelle, he had invited four men – whom he had not previously met – back to his flat. They were of Indian or Sri Lankan appearance. After a few minutes, they attacked him. One man stabbed him twice, causing severe injuries to his liver and to one of his lungs. One of the men stole his wallet. The four men then forced him from his flat at knife-point with the object of taking him to an automatic‑teller machine to get money from his bank account. Outside his flat, they attempted to force him into a car. After a struggle in the street and – as he later found – being stabbed again, the victim was able to escape and run into a neighbour's house. At the trial, two neighbours of the victim testified that, although they could not see everything that happened, they saw him struggling in the street with three men who were trying to force him into a car. Although they saw only three men, their evidence was not inconsistent with a fourth man being present. The police were called. They examined the flat for fingerprints. On a coffee table, they found fingerprints that were later identified as belonging to Dhanhoa. But no arrest was made for well over a year. On 27 September 1999, police officers told Dhanhoa that the police were investigating a stabbing and robbery that had occurred in January 1999 after the victim had invited some men "from a pub at Rozelle back to his unit". The officer told Dhanhoa that his fingerprints had been found on a coffee table in the victim's unit. Dhanhoa said that he had no idea how his fingerprints came to be in the unit and that he had never been to the Bridge Hotel at Rozelle. He denied knowing anything about the attack and robbery. In April 2000, fifteen months after the robbery, a police officer showed the victim 11 photographs. He said that the person in one of the photographs – No 8 – was "very similar" to one of the men who had attacked and robbed him. That photograph was of Dhanhoa. At the trial, the 11 photographs were tendered in evidence.
Evidence
Evidence Before The Court
In the dictionary of terms used in the Act, "identification evidence" is expansively defined as follows:"identification evidence means evidence that is: (a)an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i)the offence for which the defendant is being prosecuted was committed, or (ii)an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b)a report (whether oral or in writing) of such an assertion." Neither the definition, nor, as will appear, s 116 of the Act makes any reference to disputes about identification. There is no doubt that Mr Schembri's evidence, that the appellant was present in his flat and in the street when he was assaulted by the four men including the appellant, and his identification of the appellant in a photograph, falls literally within the definition of identification evidence in the Act. That being so, it would appear to follow from s 116 of the Act which is expressed in mandatory language, and which I will set out, that the trial judge was bound to caution the jury about the evidence in question. "116 Directions to jury (1)If identification evidence has been admitted, the judge is to inform the jury: (a)that there is a special need for caution before accepting identification evidence, and (b)of the reasons for that need for caution, both generally and in the circumstances of the case. (2)It is not necessary that a particular form of words be used in so informing the jury." Evidence of identification has always been treated with some tenderness by the courts. Most jurisdictions are, and all in Australia should be diligent in the prevention of the publication of photographs of an accused person before the conclusion of criminal proceedings. This is so because of the two particular respects in which such a publication can contaminate a criminal trial. As Jordan CJ said in Ex parte Auld; Re Consolidated Press Ltd[31]:"Now, in any criminal charge in which the identity of the accused with the perpetrator of the alleged crime may be called in question, the publication of a photograph of the accused may tend very seriously to prejudice a fair trial. The reasons for this were stated by Halse Rogers J, last year, in Ex parte Brady (unreported), when his Honour said: 'Anybody who has presided in criminal courts is fully aware of the difficulties which do arise through the publication in a widely distributed newspaper, after his arrest, of the photograph of a man charged with an offence. In some cases the publication tends to injure the accused; but the fact of such publication is very often used by the defence as a method of endeavouring to discredit the evidence of Crown witnesses by suggesting that they have founded the whole of their identification of an accused person on the published photograph, though they may possibly never have seen it.'"[31](1936) 36 SR(NSW) 596 at 597.
Decision
Reasons for decision
GLEESON CJ
HAYNE J
HUGH AND GUMMOW JJ
(dissent)
CALLINAN J
This ground of appeal has not been made out.Conclusion The appeal should be dismissed. Mc This is another appeal in which a convicted person seeks to quash a conviction on the ground that the trial judge failed to direct the jury concerning some part of the evidence in the trial even though his or her counsel did not apply for any such direction or indeed any re-direction. When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is "reasonably possible" that the failure to direct the jury "may have affected the verdict"[14]. In the present case, the judge was not required to give one of the directions that the appellant now claims should have been given – a direction as to identification evidence. And although we think that it would have been better for the judge to give a direction concerning the other matter – a direction as to lies – the appellant has failed to establish that there is a reasonable possibility that such a direction would have affected the verdict. Accordingly, no miscarriage of justice has occurred. [14]Simic v The Queen (1980) 144 CLR 319 at 332.Statement of the case In the District Court of New South Wales, a jury convicted the appellant, Raju Kamaljeet Dhanhoa, of two offences against the Crimes Act 1900 (NSW) – "aggravated robbery in company with wounding" (s 98) and "detain for advantage and cause injury" (s 90A). The offences occurred on the night of 19 January 1999. Dhanhoa appealed to the Court of Criminal Appeal on three grounds. First, that the trial judge had failed to give directions concerning identification evidence as required by s 116 of the Evidence Act 1995 (NSW). Secondly, that the trial judge had failed to direct the jury concerning evidence from which the jury might have inferred that he had lied to police officers out of a consciousness of guilt. Thirdly, that the verdict was unreasonable. The Court of Criminal Appeal dismissed the appeal. This Court granted Dhanhoa special leave to appeal on two grounds relied on in the Court of Criminal Appeal – identification and lies – and on the further ground that that Court had failed to give adequate reasons for its decision. No oral submissions were made on the hearing of the appeal by this Court upon that third ground of appeal. It is well settled that, in giving its reasons, the Court of Criminal Appeal was obliged to articulate the essential grounds for the formation of its conclusions[15]. The question whether the Court of Criminal Appeal did so in the present case is subsumed by the conclusion reached in this Court, upon its examination of the record, that the result reached by the Court of Criminal Appeal, in dismissing the appeal to it, should not be disturbed. Hence it is unnecessary any further to consider the third ground of appeal to this Court.[15]Dinsdale v The Queen (2000) 202 CLR 321 at 329 [21].The material facts