R v Dhanhoa - [2001] NSWCCA 293

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Dhanhoa [2001] NSWCCA 293

FILE NUMBER(S):
60336/00

HEARING DATE(S): 23/07/01

JUDGMENT DATE: 10/08/2001

PARTIES:
Regina
v
Kamaljeet Dhanhoa

JUDGMENT OF: Meagher JA Dowd J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0025

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL:
A:TA Game SC
R: L M B Lamprati

SOLICITORS:
A: Legal Aid Commission
R: Director of Public Prosecutions

CATCHWORDS:
Criminal Law - robbery in company with wounding - detaining for advantage - appeal from conviction and sentence - identification evidence - whether warning required - evidence of untruths told by appellant - whether evidence going to credibility or consciousness of guilt - whether warning required - appeal dismissed.

LEGISLATION CITED:
s 165 Evidence Act
s 6(1) Criminal Appeals Act

DECISION:
Appeal Dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60336/00
MEAGHER JA
DOWD J
KIRBY J

DHANHOA v REGINA

FACTS

In May 2000 the appellant was convicted by a jury of (i) aggravated robbery in company with wounding, and (ii) detaining for advantage and causing injury. He was sentenced to an effective total period of 7½ years with a non-parole period of 4 years.

The evidence called by the Crown at trial included identification of the appellant, by the victim, from photographs. The trial Judge did not give a warning or direction to the jury in respect of this evidence. This formed the first ground of appeal. The second ground of appeal was in relation to untruths told by the appellant when interviewed by police. The trial Judge commented on the untruths but did not give any direction to the jury about it or analyse its significance. The appellant submitted that a direction should have been given in relation to that evidence.

HELD per Meagher JA (Dowd J agreeing) & Kirby J:

The principle of Domican v R, requiring a warning to be given in respect of identification evidence only applies where “any significant part” of the Crown case turns on identification. Here, no part of the Crown case did.

Per Meagher JA (Dowd J agreeing):

The evidence of the untruths was not led as evidence going to credibility, therefore
a Zoneff v R direction was not required. The evidence must have been relied upon
               as evidence of consciousness of guilt, which requires an Edwards v R direction.
               However, the Crown did not rely upon it when addressing the jury, the Judge did
               not tell the jury its significance and the appellant’s counsel did not ask for an
               Edwards direction. In all the circumstances, even if the ground is made out, the
appeal should nonetheless be dismissed by applying the proviso to s 6(1) of the
               Criminal Appeals Act.

Per Kirby J (dissenting):
               The evidence of the untruths was led as evidence which may ultimately justify a
               submission that the appellant had lied through a consciousness of guilt. However,
               in the result, there was no evidence capable of supporting such a finding. Thus
               there…

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 R v Dhanhoa

Details

AGLC: R v Dhanhoa [2001] NSWCCA 293
Case: [2001] NSWCCA 293
Decision Date: 10 August 2001

CaseChat Overview and Summary

In the case of R v Dhanhoa, the appellant was convicted of robbery in company with wounding, detaining for advantage. The appeal was against the conviction and sentence. The primary issue was whether the trial judge was required to give a warning to the jury regarding identification evidence and whether the evidence of untruths told by the appellant required a warning. The appellant argued that the Crown led identification evidence without the necessary warnings and that evidence of the appellant’s untruths required an Edwards direction or a Zoneff direction.

The court held that the identification evidence did not form any significant part of the Crown's case, as the case hinged on whether the appellant was present during the robbery, rather than on his identification. The court found that the trial judge's failure to warn the jury about the identification evidence was not a defect because it was not a significant part of the case. Regarding the evidence of the appellant’s untruths, the court noted that while the appellant’s statements were obviously false, the trial judge did not provide any directions to the jury regarding their significance. The court considered whether these untruths should have been treated as evidence of guilt or credibility, but ultimately concluded that even if the trial judge’s handling of the evidence was deficient, the appeal should be dismissed because the error did not affect the outcome of the case.

The appeal was dismissed, and the conviction and sentence were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant’s first ground of appeal is that; “His Honour gave no direction or warnings to the jury in respect of identification … including the matters required by s 115(7). The summing up was defective given the failure of the trial judge to sum up at all on identification, and to warn the jury in accordance with s 165 of the Evidence Act”. (This is a quotation from the appellant’s written submissions). Domican v R (1992) 173 CLR 551 at 561 was prayed in aid. Certainly the identification evidence was not strong (indeed, one wonders why the Crown led it) and no warnings were given. However, that, in my view, does not matter. The principle of Domican only applies where “any significant part” of the Crown case turns on identification. Here, no part of the Crown case did. The Crown’s case was that four people, including the appellant, were, at all material times, engaged on a joint criminal enterprise. The appellant’s case was that, whatever was true of his three companions, he was absent at the crucial moments. The case was fought on this basis - were there three assailants or four? There was plenty of evidence either way. The jury must have found in the victim’s favour, in which case no question of the appellant’s identification arose then or arises now. The second, and only other, ground of appeal was in relation to the so called “lies”. This arises from an interview between a police officer and the appellant which took place on 27 September 1999. The appellant told the police officer that he could not imagine how his fingerprints appeared on a table in the victim’s flat; that he had never been to the Bridge Hotel at Rozelle; and that he knew “nothing about” playing pool on the night of 19 January 1999. These were obviously untruths; whether they were lies or not is not established. His Honour never categorised these as “lies”. The matter was raised by the Crown, cross-examined on by counsel for the appellant, and commented on by the Judge on four or five occasions in his summing up. But, whilst commenting on it, his Honour did not give any directions to the jury about it, or, indeed, analyse its significance. The appellant’s submissions are that it can only have been led as evidence of guilt, in which case an Edwards v R (1993) 178 CLR 193 direction should be given; or as evidence going to credibility in which case a Zoneff v R (2000) 200 CLR 234 direction should have been given. It is clear enough that the second possibility can be discarded. Not so the first. I cannot see why the evidence was led unless the Crown sought to rely on it as evidence of consciousness of guilt, but if that be true, it is extraordinary that the Crown did not rely on it when addressing the jury, and equally extraordinarily that the Judge did not tell the jury exactly what its significance was. Nor, for that matter, did the appellant’s counsel ask for an Edwards direction. In all the circumstances, if the ground is made out (which I don’t think it is), I should nonetheless dismiss the appeal by applying the proviso to s 6(1) of the Criminal Appeals Act.

Decision

Reasons for decision

DOWD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DOWD J

Full text does not contain this section.