2.Set aside orders 2, 3 and 4 of the Court of Appeal of the Supreme Court of Victoria made on 23 November 2015 and in their place order that the appeal against conviction to that Court be dismissed.
3.Remit the proceeding to the Court of Appeal of the Supreme Court of Victoria to determine the respondent's pending application for leave to appeal against sentence.
On appeal from the Supreme Court of Victoria
Representation
G J C Silbert QC with B L Sonnet for the appellant (instructed by Solicitor for Public Prosecutions (Vic))
M E Shaw QC with B J Doyle for the respondent (instructed by Barbaro Thilthorpe Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Dickman
Criminal law – Appeal against conviction – Identification evidence – Where victim's identification of accused on photoboard admitted at trial – Where police conveyed to victim that photograph of suspect would be on photoboard – Where victim had made erroneous previous identification – Whether probative value of identification evidence outweighed by unfair prejudice to accused – Whether evidence should have been excluded under s 137 of Evidence Act2008 (Vic) – Whether admission of identification evidence occasioned substantial miscarriage of justice.
Words and phrases – "identification evidence", "probative value", "substantial miscarriage of justice", "unfair prejudice".
KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ. The respondent was convicted following his trial in the County Court of Victoria (Judge Coish and jury) of (i) intentionally causing serious injury[1]; and (ii) making a threat to kill[2], for which offences he was sentenced to an effective sentence of eight years' imprisonment with a non-parole period of five years and six months.
The Court of Appeal of the Supreme Court of Victoria (Priest JA and Croucher AJA; Whelan JA dissenting) allowed the respondent's appeal against his convictions[3]. The majority concluded that the trial judge had erred by failing to exclude certain identification evidence ("the August 2011 identification") under s 137 of the Evidence Act 2008 (Vic) ("the Evidence Act"), and that this error had occasioned a substantial miscarriage of justice. The convictions were set aside and a new trial ordered.
On 18 November 2016 French CJ, Kiefel and Gordon JJ granted the prosecution special leave to appeal on grounds which challenge the conclusion that it was an error to admit the evidence and, in the alternative, the conclusion that its admission occasioned a substantial miscarriage of justice. One plank of the challenge relating to the admission of the evidence anticipated the decision in
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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Details
AGLC
R v Dickman [2017] HCA 24
Case
[2017] HCA 24
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against a decision of the Court of Appeal of the Supreme Court of Victoria, which had allowed an appeal against the conviction of the respondent. The dispute concerned the admissibility and potential unfair prejudice of identification evidence used in the trial of the respondent for serious criminal offences.
The central legal issues before the High Court were whether the trial judge erred in admitting identification evidence, specifically a photoboard identification made by the victim, Faisal Aakbari, and whether the admission of this evidence occasioned a substantial miscarriage of justice. This involved determining whether the probative value of the identification evidence was outweighed by the unfair prejudice it posed to the respondent, pursuant to section 137 of the *Evidence Act 2008* (Vic). The Court also had to consider the impact of police informing the victim that a photograph of the suspect would be included in the photoboard, and the fact that the victim had previously made an erroneous identification.
The High Court reasoned that the trial judge's conclusion that the risk of unfair prejudice from the August 2011 identification was minimal was supported by the evidence and the conduct of the trial. Furthermore, the Court found that even if this particular identification evidence were excluded, the respondent's conviction was inevitable based on the other evidence presented. Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal that had allowed the respondent's appeal against conviction, and restored the respondent's convictions. The matter was remitted to the Court of Appeal to determine the respondent's pending application for leave to appeal against sentence.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 2, 3 and 4 of the Court of Appeal of the Supreme Court of Victoria made on 23 November 2015 and in their place order that the appeal against conviction to that Court be dismissed.
3. Remit the proceeding to the Court of Appeal of the Supreme Court of Victoria to determine the respondent's pending application for leave to appeal against sentence.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the reasons to be given, analysis of the evidence and the conduct of the trial supports the trial judge's conclusion that the risk that the August 2011 identification would unfairly prejudice the defence was minimal. The analysis also supports the conclusion that if the August 2011 identification is put to one side, the respondent's conviction was nonetheless inevitable. The appeal must be allowed and the respondent's convictions restored. The evidence Faisal Aakbari, an 18 year old German youth, was holidaying in Melbourne. In the early hours of 27 September 2009, he went into the city, where he attempted to gain entry to several nightclubs. These included the Dallas Showgirls nightclub ("the Dallas club") in King Street, Melbourne. A number of men associated with the Hells Angels Motorcycle Club ("the Hells Angels") were standing outside the Dallas club. Aakbari falsely claimed to one of them, Ali Chaouk, that he was a member of the Hells Angels in order to gain entry. Once inside the club, Aakbari was taken upstairs by the manager, a man named Smith. There, he met a person whom he described as the "old man", and a short, balding man named Daly, and a short, balding man who looked Italian ("the Italian"). The "old man" had a long beard and a ponytail and was wearing an "army" style of jacket. He looked like a "rocker" or "biker". His long beard gave him this appearance. No one else in the Dallas club looked like a "rocker" or "biker". After a time Aakbari was told that the group was going to visit another club. Aakbari did not want to go with them but he was given to understand that he had no choice. He left the Dallas club with Chaouk, Daly and a man who had a bullring in his nose ("Bullring"). Daly and Bullring got into Aakbari's car with him and directed him to the Hells Angels' Thomastown clubroom ("the Thomastown clubroom"). Aakbari described the Thomastown clubroom, on arrival, as "very empty". He saw the "old man", Chaouk and the Italian inside the clubroom. There was a bar in the clubroom and on one of the walls there were photographs of members of the Hells Angels from chapters around the world. The "old man" showed Aakbari photographs of members of the German chapter and asked him if he knew any of them. When Aakbari said he did not, the "old man" became very angry and aggressive. At a point, he disappeared and returned with a baseball bat with which he savagely beat Aakbari about the head and body. When he ran out of breath, the "old man" passed the baseball bat to Chaouk, who continued the assault. The "old man" disappeared again and on this occasion he reappeared with a large "Ninja" knife, which he held next to Aakbari's neck as he told him "don't go to the police, otherwise I will kill you and your family". The only persons whom Aakbari described as present in the clubroom at the time of the assault were the "old man", Chaouk and the Italian, who, on the prosecution case, was a man named Michael Gerrie. Aakbari described Daly and Bullring as walking in and out. After the "old man" threatened Aakbari with the knife, a man whom Aakbari had not seen at the Dallas club intervened, saying "let him go". Daly and Chaouk helped Aakbari to his car. Aakbari was driven to an unknown location, where he was left.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ
(dissent)