Dia v The Queen

Case [2014] NSWCCA 9

Court of Criminal Appeal

New South Wales
Case Title: Dia v Regina
Medium Neutral Citation: [2014] NSWCCA 9
Hearing Date(s): 11/02/2014
Decision Date: 20 February 2014
Before: Hoeben CJ at CL at [1]
Schmidt J at [72]
Barr AJ at [73]
Decision:

Leave to appeal against conviction granted. Appeal dismissed.
Catchwords: CRIMINAL LAW - conviction appeal - offences of entering dwelling house with intent to commit a serious indictable offence, robbery while armed and reckless wounding - key issue in trial identification - whether trial miscarried as a result of trial judge not discharging jury - evidence of a tattoo inadvertently coming before jury - whether impugned evidence seriously damaged defence case - discretionary exercise by trial judge - whether trial judge in special position of advantage - need for appellate court to decide whether risk of a substantial miscarriage of justice - need to consider whole of evidence and conduct of trial - effect of directions by a trial judge - whether verdict was unreasonable and not supported by the evidence - purported weakness of identification evidence - effect of intoxication of principal Crown witness - circumstances in which identification made - advantageous position of jury - grounds of appeal not made out.
Legislation Cited: Crimes Act 1900 - s35(3), s97(1), s111(2)
Criminal Appeal Act 1912 - s 5(1)(b)
Cases Cited: Crofts v R [1996] HCA 22; 186 CLR 427 at 441-442
House v The King [1936] HCA 40; 55 CLR 499
Khazaal v R [2011] NSWCCA 129
M v The Queen [1994] HCA 63; 181 CLR 48 at 493
R v Glennon [1992] HCA 16; 173 CLR 592
SKA v R [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Jaafar Dia - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Mr G Brady/Mr A Connell - Applicant
Ms H Wilson SC - Respondent Crown
- Solicitors: Solicitors:
Nyman Gibson Stewart - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2011/324650
Decision Under Appeal
- Before: Charteris DCJ
- Date of Decision:  16 October 2012
- Court File Number(s): 2011/324650

JUDGMENT

  1. HOEBEN CJ at CL:

    Appeal
    Pursuant to s5(1)(b) of the Criminal Appeal Act 1912 the applicant seeks leave to appeal against his conviction with respect to five offences of which he was found guilty by a jury.

  2. The applicant was called for trial on 9 October 2012 before Charteris DCJ and a jury of twelve at the District Court of NSW. He was arraigned on an indictment charging six counts, all of which related to a "home invasion" carried out on 26 September 2011 at residential premises at Padstow.

  3. The jury retired to consider its verdicts on 15 October 2012 and returned the following day with verdicts of guilty to counts 1 - 5 inclusive. Those counts were:

    Enter dwelling house with intent to commit a serious indictable offence (robbery) in circumstances of aggravation (in company), contrary to s111(2) Crimes Act 1900.

    Robbery whilst armed (of…

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Dia v The Queen [2014] NSWCCA 9
Case
[2014] NSWCCA 9
Decision Date

CaseChat Overview and Summary

The appellant, Dia, appealed against his convictions for entering a dwelling house with intent to commit a serious indictable offence, robbery while armed, and reckless wounding. The appeal was heard in the High Court of Australia. The primary issue in the appeal was whether the trial judge should have discharged the jury and declared a mistrial due to the inadvertent disclosure of evidence of a tattoo, which was potentially prejudicial to the appellant. Another significant issue was whether the verdict was unreasonable and not supported by the evidence, particularly concerning the reliability of the identification evidence of Ms McCann.

The court examined whether the trial judge's decision not to discharge the jury was within the discretionary exercise of the judge, given the special position of advantage the judge held to assess the impact of the inadvertent disclosure. The court also considered whether the risk of a substantial miscarriage of justice was present. It was determined that the trial judge had not erred in declining to discharge the jury as the risk of a substantial miscarriage of justice was not present. The evidence, including the identification evidence, was sufficient for the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

The appellant argued that the identification evidence was unreliable due to various factors, such as Ms McCann being under the influence of marijuana during the offences and the traumatic circumstances under which she made her observations. However, the court found that the totality of the evidence, including the identification evidence, was sufficient to support the jury's verdict. The court concluded that the verdict was not unreasonable and was supported by the evidence. Therefore, the grounds of appeal were not made out.

The final orders of the court were that the appeal against conviction and sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that I am satisfied from my own perusal of the evidence that the refusal to discharge the jury did not occasion a risk of a substantial miscarriage of justice. Ground of Appeal 1 has not been made out.Ground 2 - The verdict was unreasonable and not supported by the evidence. The applicant submitted that the identification evidence led by the Crown was so flawed as to be incapable of sustaining the verdicts returned by the jury. This Court was invited to assess the identification evidence in accordance with the test in M v The Queen [1994] HCA 63; 181 CLR 48 at 493:"...the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." In support of this ground, the applicant identified what he described as a number of "significant defects in the identification evidence of Ms McCann". For the purposes of this Ground of Appeal, the applicant accepted as did the Crown at trial, that the Crown's case against him depended entirely upon an acceptance by the jury of the identification evidence of Ms McCann. He submitted that if that evidence was unreliable, the Crown case against him must fail. The particular "defects" relied upon by the applicant were that Ms McCann had been smoking marijuana before the offences occurred and that the marijuana "got me stoned". It followed that her observations were made whilst she was under the influence of marijuana. The applicant also relied upon the fact that her observations were made in traumatic circumstances. Another "defect" upon which the applicant relied was the circumstances in which Ms McCann came to identify him. He drew the Court's attention to the following matters. Ms McCann had failed to identify him on the night of the offences, despite the fact that Exhibit A made it clear that she had seen his photograph that night. On the following day, she was scrolling through the Facebook entries of Mr Fawaz with the specific intent "to see if I could identify any of the other faces from the night". In other words, she had an expectation that one or more of the friends of Mr Fawaz, whose images appeared on his Facebook, would be among the persons who committed the offences. The applicant also submitted that there was the potential for a displacement effect in that Ms McCann had already seen a photograph of him on the night of the offences (i.e. Exhibit A). The applicant relied upon what he said were two obvious errors in Ms McCann's description of him. He was 5 foot 6 inches in height not 5 foot and a photograph of him taken 15 days after the offences showed hair significantly longer than the description of 1 millimetre given by Ms McCann. The applicant submitted that since that was the totality of the identification evidence against him, it could not be said that the jury had any advantage over this Court in assessing its probative value. The applicant submitted that evidence of such poor quality would of necessity leave this Court with a reasonable doubt, being a doubt which the jury should also have had. The applicant submitted that the issue was not whether Ms McCann was an honest witness, but whether she was a reliable witness.Consideration

Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant summarised his submissions as follows:"50 In the context of the appellant's case the evidence led against the co-accused that was inadmissible against the appellant contained material and a reasoning process that was highly prejudicial to the appellant. The evidence was led reasonably early in the Crown case. Ms McCann had given evidence and Constable Horvat was the second witness and still in evidence in chief. ...51 In the context of the issues in the appellant's case, the Crown case against the appellant was made "immeasurably stronger" as a result of that prejudicial material. The failure to discharge the jury led to a miscarriage of justice."Consideration As the applicant appreciated, the leading case in this area is Crofts. That case concerned allegations of sexual assault on a child by a family friend. In pre-trial rulings, the trial judge directed that no mention be made of other uncharged sexual assaults on the victim by the same offender. The offender was convicted of five counts but acquitted of eight others. During the course of the trial, evidence was led by the Prosecution of other uncharged sexual offences as follows:"Q. Did that happen again?It happened many times but I never had the opportunity to do anything about it."It was in the context of a refusal to discharge the jury in those circumstances that the matter came before the High Court. The majority (Toohey, Gaudron, Gummow and Kirby JJ) made the following observations at p 440-442:"Obviously, the appellant was in a difficult position so far as the warning was concerned. Any specific reference to the evidence, and repetition of it, would simply underline its importance and reinforce the possible prejudice. But any generalised statement, such as the judge suggested, would run the risk of missing the target of prejudice which it was the object of the direction to cure....No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ...There are two other considerations which do not appear to have been taken into account, or adequately taken into account, in the Court of Criminal Appeal's decision on this point. The first is that it was specially difficult in this case for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statement of the complainant. It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice. In some cases it is possible for the judge to refer to the inadmissible evidence and to explain why it must be excluded. That course was not open in this case and for that reason was not followed....With all respect to the trial judge and the Court of Criminal Appeal, a proper consideration of the factors relevant to weighing the prejudice to the accused, the danger to the fairness of the trial and the risk that such danger could not be eradicated by instruction to the jury necessitated, in this case, an order of discharge. Otherwise, the Court would sanction a real risk that the appellant might have been convicted on the basis of the prejudicial evidence about sexual misconduct "many times". This was not charged in the counts of the presentment. It was of a different character to the counts on which the appellant was acquitted. And it was produced by questioning which appears to have been deliberate and fraught with the danger of producing the result that predicably ensued."