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Court of Criminal Appeal 29 April 2002

Regina v Dat Quoc HO

[2002] NSWCCA 147

Also reported as (2002) 130 A Crim R 545
Assault & violenceTheft & property

Citation: Regina v Dat Quoc Ho [2002] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 29 April 2002
Judge(s): Meagher JA, Bell J, Hidden J

Background

The appellant was charged with two counts arising from a robbery at a butcher shop in Auburn on 10 July 1999. The first count alleged assault while armed with an offensive weapon (a handgun) with intent to rob. The second count alleged robbery in company. The alleged victims were the shop owner and his wife, who had approximately $35,000 in cash in a backpack when they were confronted by three men.

The appellant was apprehended in a nearby vacant lot shortly after the incident. He participated in a recorded police interview in which he admitted being present but claimed he had no prior knowledge of any plan to rob, and no knowledge that one of the men carried a gun. He said he had gone along to help recover a debt. He did not give evidence at trial.

The jury acquitted the appellant on the first count (assault with intent to rob) but convicted him on the second count (robbery in company). He was sentenced to three years imprisonment with an eighteen-month non-parole period. He appealed against conviction on two grounds, both directed at the trial judge's directions during the summing up.

  • Whether the trial judge erred in directing the jury on the burden and standard of proof, in particular by framing the Crown case in a way that could have confused the civil and criminal standards.
  • Whether the trial judge erred in directing the jury on the use of evidence of flight (the appellant's presence in the vacant lot after the robbery) as evidence of consciousness of guilt, including the applicable standard of proof for considering that evidence.

Decision

On the first ground, the Court of Criminal Appeal examined the trial judge's direction in its full context. The relevant passage distinguished between the criminal standard of proof beyond reasonable doubt and the civil standard of balance of probabilities, and made clear that the Crown bore the onus of proof. Read as a whole, the Court found no error in how the direction on burden and standard of proof was communicated to the jury.

On the second ground, the appellant challenged the directions on flight, contending that the trial judge had given insufficient guidance on the standard required before the jury could use evidence of flight as an indicator of consciousness of guilt. The Court reviewed the applicable legal framework, drawing on the High Court decisions in Edwards v The Queen and related authority, which establish that where lies or conduct are used as part of a circumstantial evidence case to evidence consciousness of guilt, it is not necessary for the jury to be satisfied of that matter beyond reasonable doubt before taking it into account.

The Court found that, read in context, the trial judge's directions on flight were adequate and, in certain respects, favourable to the appellant. Hidden J noted it may have been unfortunate that the trial judge peremptorily rejected trial counsel's application for redirections on flight, but this did not render the directions as a whole inadequate. All three judges agreed the directions were sufficient and the appeal should be dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Where evidence of flight or lies is relied upon as circumstantial evidence of consciousness of guilt, the Court of Criminal Appeal confirmed that a jury need not be satisfied beyond reasonable doubt of the lie or its character before taking it into account as part of the overall case.
  • In dismissing the appeal, the Court emphasised that jury directions must be assessed in their full context, not in isolation from the balance of the summing up.
  • A direction on burden of proof that distinguishes the criminal standard of beyond reasonable doubt from the civil standard of balance of probabilities does not constitute error, provided the overall effect of the direction correctly conveys the Crown's onus.
  • No error was established simply because a trial judge declined to give redirections following counsel's application, provided the original directions were adequate when read as a whole.
  • The decision applies established High Court principles from Edwards v The Queen to the treatment of consciousness of guilt evidence in circumstantial cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed or in company)

Cases
- Edwards v The Queen (1993) 178 CLR 193
- Arcangioli v The Queen (1994) 111 DLR (4th) 48
- Brown v The King (1913) 17 CLR 570
- Dawson v The Queen (1961) 106 CLR 1
- Green v The Queen (1971) 126 CLR 28
- La Fontaine v The Queen (1976) 136 CLR 62
- Thomas v The Queen (1960) 102 CLR 584
- Van Leeuwen v The Queen (1981) 55 ALJR 726
- The Queen v Bridgman (1980) 24 SASR 278
- Regina v Adam [1999] NSWCCA 189
- Regina v Power (1996) 87 A Crim R 407
- United States v Myers 550 F.2d 1036 (5th Cir, 1977)
- Gipp v The Queen (1998) 72 ALJR 1012
- Penney v The Queen (1998) 72 ALJR 1316