Harika v The King - [2023] VSCA 317

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0139

PHILLIP ANTHONY HARIKA	Applicant
v
THE KING	Respondent

S EAPCR 2022 0178
PETER JOHN HAMANN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 317
JUDGMENT APPEALED FROM:	[2022] VCC 1392 (Judge Doyle)

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CRIMINAL LAW – Appeal – Conviction – Aggravated home invasion and associated offences – Whether jury verdicts unreasonable or cannot be supported having regard to the evidence – Whether picture identification evidence sufficient to establish presence – Whether recent possession of stolen property capable of establishing presence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Picture identification evidence – Admissibility – Whether reasonable not to hold identification parade – Leave to appeal refused.

Evidence Act 2008 s 115, 137.

M v The Queen (1994) 181 CLR 487; Lang v The Queen (2023) 97 ALJR 758; Trainer v The King (1906) 4 CLR 126; Bruce v The Queen (1987) 74 ALR 219; Gilson v The Queen (1991) 172 CLR 353 considered.

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Counsel
For the Applicant Harika:	Mr J Shaw
For the Applicant Hamann:	Mr J Connolly
Respondent:	Mr CB Boyce KC
Solicitors
For the Applicant Harika:	Valos Black & Associates
For the Applicant Hamann:	Melinda Walker
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with the orders proposed by Macaulay JA, whose reasons for judgment I have had the advantage of reading in draft. Although I am in substantial agreement with those reasons, I wish to add a few observations of my own.
With respect to the applicant Harika’s sole ground, which contended that the jury’s ‘verdicts in relation to all charges on which the applicant was found guilty were unreasonable or cannot be supported having regard to the evidence’, my reasons for agreeing with Macaulay JA are relatively simple.
When a person is found in possession of recently stolen property, the ‘doctrine’ of recent possession — a form of inferential reasoning sometimes misleadingly referred to as creating a ‘presumption’ of fact — permits the inference to be drawn that he or she must be either the thief or a receiver of the property.
Thus, in Trainer, Griffith CJ described the recent possession of stolen property as an illustration of circumstantial evidence (albeit he spoke of a prima facie ‘presumption’):[1]
It is a well known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie the presumption is that he stole it himself but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it. This is only an illustration of…

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.

Continue reading Harika v The King

Details

AGLC: Harika v The King [2023] VSCA 317
Case: [2023] VSCA 317
Decision Date: 14 December 2023

CaseChat Overview and Summary

The appellant, Harika, appealed against her conviction for aggravated home invasion and associated offences, seeking leave to appeal to the High Court. The appeal centred on the admissibility and sufficiency of evidence used to secure her conviction. The primary evidence in question was a photo identification by a victim, as well as evidence of recent possession of stolen property. The court was tasked with determining whether the jury's verdicts were unreasonable or incapable of being supported by the evidence presented.

The primary legal issue was whether the jury's reliance on the photo identification and recent possession of stolen property was justified, given the procedural safeguards and the quality of the evidence. The court considered whether the identification process was conducted in a manner that was fair and reasonable, and whether the evidence of recent possession was sufficient to support the conviction. The court also needed to assess whether the jury's conclusions were open to them based on the evidence.

The court examined the evidence and concluded that the jury's verdicts were not unreasonable and were supported by the evidence. The court found that the identification process was conducted appropriately, and the photo identification was a reliable basis for the jury's decision. Additionally, the evidence of recent possession of stolen property was deemed sufficient to establish the appellant's presence at the scene of the crime. The court rejected the argument that the evidence was insufficient or unreliable. Consequently, the appeal was dismissed, and leave to appeal to the High Court was refused.

The final orders of the court were that the appeal was dismissed and no leave to appeal was granted. The conviction and sentence of the appellant were upheld.

Orders