R v Dastagir

Case [2013] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DASTAGIR

[2013] SASCFC 109

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)

21 October 2013

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS

Photographs of suspect tendered in evidence - jury invited by judge to compare photographs with observations of the accused made during trial and to draw its own conclusion as to identity - whether permissible - whether quality of photographs allowed for such a conclusion.

Held:  jury entitled to make such a comparison;  quality of photographs did not preclude conclusion that accused was the person depicted.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION

Evidence of a professor of anatomy admitted describing and categorising anatomical features of the suspect depicted in the photographs and comparing those features with photographs of accused taken on arrest - whether the comparison a proper topic for expert evidence - whether witness qualified to give such evidence - whether photographs suitable for the purpose - whether methodology appropriate.

Held:  evidence admissible;  witness properly qualified;  criticisms of methodology relevant to weight of opinion.

EVIDENCE - ADMISSIBILITY AND RELEVANCY

Whether finding at appellant's home of distinctive clothing similar to but different from that worn by suspect depicted in photographs admissible.

Held:  evidence properly admitted.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Appellant argued that verdict unsafe and unsatisfactory by reference to the circumstantial case against the appellant and also to a particular direction said to be misleading.

Held:  verdict not unsafe or unsatisfactory.

Appeal against conviction dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appellant sentenced to imprisonment for 10 years and 4 months.

Held:  permission to appeal against sentence refused.

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, distinguished.
R v Dastagir [2013] SASC 26; R v Curran (2008) 100 SASR 71; R v Gassy (No 3) (2005) 93 SASR 454; Markarian v The Queen (2005) 228 CLR 357; R v Turner [1975] QB 834; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Dodson [1984] 1 WLR 971; Attorney-General's Reference (No 2 of 2002) [2003] 1 Cr App R 321, discussed.
R v McNamara (2009) 105 SASR 38; R v Bonython (1984) 38 SASR 45; Smith v The Queen (2001) 206 CLR 650; Murphy v The Queen (1989) 167 CLR 94; R v Tang (2011) 65 NSWLR 681; Honeysett v R [2013] NSWCCA 135, considered.

R v DASTAGIR
[2013] SASCFC 109

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Stanley JJ

  1. THE COURT:      The appellant, Hameed Ullah Dastagir, was found guilty by a jury of aggravated causing serious harm with intent to cause serious harm.  On 3 May 2013 the appellant was sentenced to ten years and four months imprisonment…

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AGLC
R v Dastagir [2013] SASCFC 109
Case
[2013] SASCFC 109
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for an offence arising from a stabbing incident outside a tattoo studio on Hindley Street, Adelaide. The appellant, R v Dastagir, appealed against his conviction, arguing that identification evidence was wrongly admitted, that there were misdirections in the trial judge's summing up, and that the verdict was unsafe and unsatisfactory. The appellant also sought leave to appeal against his sentence. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Vanstone and Stanley JJ.

The central legal issues before the Full Court revolved around the admissibility and use of identification evidence. Specifically, the court had to determine whether still photographs derived from security footage, taken at a service station shortly before the stabbing, were of sufficient quality to allow the jury to conclude they depicted the appellant. The court also considered whether the trial judge erred in directing the jury to compare these photographs with the appellant's appearance in the dock and to draw their own conclusions as to identity based on the photographs alone. Furthermore, the court examined the propriety of admitting expert evidence from a professor of anatomy regarding the anatomical features of the person in the photographs, and the admission of evidence concerning clothing found at the appellant's home that was comparable to that worn by the offender.

The Full Court reasoned that the quality of the security footage and the photographs derived from it was a matter for the jury to assess. The judge's direction to the jury to compare the photographs with the appellant's appearance in court was permissible, as was the invitation for the jury to draw their own conclusions about identity. The court found no error in the admission of the expert anatomical evidence, noting that it assisted the jury in their assessment of the photographic evidence. Similarly, the admission of evidence regarding the comparable clothing was deemed appropriate. The court concluded that the evidence, taken as a whole, was capable of supporting the jury's verdict and that the verdict was not unsafe or unsatisfactory.

Consequently, the Full Court refused the application for permission to appeal against sentence and dismissed the appeal against conviction.

Orders

Orders of the court

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Background

Background to the litigation

The appeal is against conviction. The appellant contends that evidence was wrongly admitted, that there were misdirections in the summing up and that the verdict is unsafe and unsatisfactory. He also applies for permission to appeal against sentence.Background In the early hours of 22 May 2010 Giovanni Foccarelli was stabbed twice outside Ink Central, a tattoo studio on Hindley Street, Adelaide. A black Nissan Skyline motor vehicle was seen to pause adjacent to Ink Central. The victim (V), who was working at Ink Central and standing on the footpath, approached the passenger side of the Nissan. Almost immediately V was stabbed, one wound being to the stomach and the other to his upper chest. The Nissan then drove away. There were two issues at trial. The first was as to identity. The second was proof of specific intent. In fact the offence for which the appellant was convicted was an alternative to the more serious offence of attempted murder. The appeal against conviction focuses on what the appellant claims were deficiencies in the evidence of identification. He argues that security footage and still photographs derived from it taken at a service station further west on Hindley Street, Adelaide a few minutes before the stabbing were not of such quality as would enable the jury to conclude that they depicted the appellant. He argues that a direction given by the judge in effect inviting the jury to conclude on the basis of the photographs alone that the appellant was the man at the service station were necessarily flawed. He further argues that a direction inviting the jury to compare the appellant’s appearance in the dock with the photographs was in error. Then he argues that the trial judge erred in admitting the evidence of Professor Henneberg, a professor of anatomy, who gave evidence about the anatomical features of the person photographed at the service station. In addition the appellant argues that evidence of the finding of clothing at the appellant’s home, which was comparable to that worn by the offender, should not have been admitted. Finally he argues that the verdict is unreasonable and cannot be supported by the evidence. The appellant also wishes to challenge the sentence. It is argued that the term of ten years and four months with a non-parole period of six years is manifestly excessive and that in the remarks on sentence that he delivered the judge made certain errors.The prosecution case The prosecution case was circumstantial. A Police Security Services Branch camera provided closed circuit television footage of the stabbing incident. It showed V walk across the footpath to the kerbside and bend over as if to talk to someone at or near the front passenger window of the Nissan Skyline and then, almost instantly, reel back, bend over and stumble back into the premises. Footage of a black Nissan Skyline was also obtained from other Police Security Services Branch cameras on Hindley Street. Then there was the important footage from the Liberty Service Station on Hindley Street, which was about 350 metres west of the Morphett Street intersection. The footage showed a person getting out of the passenger side of a black Nissan and, a little later, resuming his position in the front seat. Further footage inside the service station shop showed a man of similar appearance making a purchase at the counter.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For all these reasons we would refuse permission to appeal against sentence. Conclusion We would make the following orders:1.the application for permission to appeal against sentence is refused;2.the appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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