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Court of Criminal Appeal 10 August 2001

R v Dhanhoa

[2001] NSWCCA 293

Assault & violenceTheft & property
CRIMINAL LAW ROBBERY IN COMPANY WITH WOUNDING DETAINING FOR ADVANTAGE APPEAL FROM CONVICTION AND SENTENCE IDENTIFICATION EVIDENCE WHETHER WARNING REQUIRED

Citation: Dhanhoa v R [2001] NSWCCA 293
Court: New South Wales Court of Criminal Appeal
Date: 10 August 2001
Judge(s): Meagher JA, Dowd J, Kirby J

Background

The appellant was convicted by a jury in the District Court of aggravated robbery in company with wounding, and detaining for advantage and causing injury. The offences arose from events in January 1999, when the victim was assaulted and robbed at his home and then escorted into the street toward an ATM by a group of four men he had met at a hotel earlier that evening.

The appellant did not deny being at the hotel or visiting the victim's flat, but claimed he left before any assaults occurred. Two neighbourhood witnesses saw only three attackers in the street, which the defence relied upon to support that account. The jury rejected this version and convicted on both counts. The appellant was sentenced to an effective total of 7.5 years with a non-parole period of 4 years, and appealed both conviction and sentence.

  • Whether the trial judge was required to give the jury a warning in respect of photographic identification evidence pursuant to the principles in Domican v R and s 165 of the Evidence Act
  • Whether the trial judge was required to give the jury a direction regarding untruths the appellant told police during interview, and if so, whether that direction should have addressed credibility (a Zoneff v R direction) or consciousness of guilt (an Edwards v R direction)

Decision

Ground 1: Identification evidence. The court unanimously rejected the first ground. The Domican principle requiring a warning about identification evidence is only engaged where "any significant part" of the Crown case turns on identification. Here, the Crown's case rested on a joint criminal enterprise: the central question at trial was whether three or four persons were involved, not who among a group of suspects was the perpetrator. On the majority's analysis, once the jury accepted the victim's account that four persons were involved, no issue of identification arose. The absence of a warning was not a ground of error in those circumstances.

Ground 2: Directions on the appellant's untruths. The appellant had falsely denied to police any knowledge of playing pool that night or of how his fingerprints came to be in the victim's flat. The trial judge commented on these untruths but gave no direction on how the jury should use them.

Meagher JA (with Dowd J agreeing) held that because the evidence was not led as credibility evidence, no Zoneff direction was required. The untruths must have been relied upon as evidence of consciousness of guilt, requiring an Edwards direction. However, neither the Crown in its address nor the trial judge pointed to the untruths in that way, and defence counsel did not request a direction. Applying the proviso to s 6(1) of the Criminal Appeals Act, the majority concluded that even if the ground were made out, the appeal should nonetheless be dismissed because no substantial miscarriage of justice resulted.

Kirby J dissented on ground two. His Honour took the view that the evidence of untruths was adduced with a view to supporting a consciousness of guilt submission, but that no sufficient evidentiary basis for such a finding ultimately existed. What did occur, in Kirby J's view, was that the Crown's closing address attacked the credibility of the appellant's account, and the summing up repeated and gave prominence to that issue without any curial explanation of how to treat possible lies. That created a real risk of misunderstanding. Kirby J concluded that ground two was made out, that the proviso should not be applied because the appellant lost a genuine chance of acquittal, and would have ordered a new trial.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Domican v R warning for identification evidence is only required where identification forms "any significant part" of the Crown case. Where the case turns instead on whether a defendant was present at all as one of a group engaged in a joint enterprise, the Domican obligation does not arise.
  • A trial judge's obligation to direct the jury about lies or untruths depends on how that evidence was used. Evidence of lies led to establish consciousness of guilt calls for an Edwards v R direction; evidence led to undermine credibility calls for a Zoneff v R direction. The majority confirmed that these are distinct obligations responding to distinct uses of the evidence.
  • In dismissing the appeal despite reservations about the absence of an Edwards direction, the majority applied the proviso to s 6(1) of the Criminal Appeals Act, finding that the Crown did not ultimately press the untruths as consciousness of guilt in its address, and no substantial miscarriage of justice resulted.
  • Kirby J's dissent illustrates that the risk of misunderstanding about the significance of lies can arise from the cumulative effect of the Crown's address and the summing up, even without a formal consciousness of guilt direction, particularly where credibility is central to the case.
  • The timing of Zoneff v The Queen (handed down shortly after the trial) was a relevant consideration in the dissent: the guidance it offered was not available to counsel or the trial judge at the time, which bore on whether leave under Rule 4 should be granted.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 165
- Criminal Appeals Act 1912 (NSW), s 6(1)

Cases
- Domican v R (1992) 173 CLR 551
- Edwards v R (1993) 178 CLR 193
- Zoneff v R (2000) 200 CLR 234
- Kelleher v The Queen [1974] 131 CLR 534
- R v Galea [2001] NSWCCA 270