Citation: Regina v David James Dodd [2002] NSWCCA 418
Court: NSW Court of Criminal Appeal
Date: 11 October 2002
Judge(s): Meagher JA, Sully J, Sperling J
Background
The appellant was convicted in the District Court at Bathurst of armed robbery under section 97 of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years' imprisonment. The robbery occurred at the victim's home in Orange on 25 August 2000, when two male Aboriginal assailants robbed the victim at knifepoint. It was not disputed at trial that the robbery occurred, nor that one of the two assailants was a juvenile known to the victim.
The sole contested issue at trial was whether the appellant was correctly identified as the second assailant. The Crown relied primarily on two witnesses: the robbery victim, who identified the appellant from a photographic array with 80 percent certainty, and a woman who had given two men a lift on the day of the robbery and who also identified the appellant from the same photographic array.
The appellant gave no evidence at trial, made no inculpatory admissions, and there was no forensic evidence linking him to the offence. The jury returned a guilty verdict. He was sentenced to seven years' imprisonment with a non-parole period of four years and six months. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge gave an adequate warning to the jury about the dangers of relying on identification and resemblance evidence (Ground 1)
- Whether the trial judge gave adequate directions concerning the absence of a dock identification (Ground 2, broadly)
- Whether various other alleged deficiencies in the trial judge's summing-up resulted in a miscarriage of justice (Grounds 3 through 7B)
- Whether the sentence of seven years with a non-parole period of four years and six months was excessive or otherwise infected by error
Decision
The Court, in reasons delivered by Sully J (with Meagher JA and Sperling J agreeing), dismissed all nine grounds of appeal against conviction. The principal issue was Ground 1, which concerned the adequacy of the trial judge's Domican warning, that is, the warning required where the prosecution case rests substantially on identification evidence. The Court was satisfied, having regard to the entirety of the summing-up in context, that the judge had adequately directed the jury on the dangers of identification evidence and the need for caution.
The Court considered the identification evidence in detail. The victim's photographic identification was made four days after the robbery and expressed with 80 percent certainty. The second witness independently identified the appellant from the same photographic array. The Court found that the jury directions, considered as a whole and in the atmosphere of the trial, were sufficient to meet the requirements established in cases such as Domican v The Queen and Festa v The Queen.
On sentence, Sully J found that the sentencing judge had identified and correctly weighed all relevant objective and subjective factors. These included the gravity of the offence, the fact that it was committed at knifepoint in the victim's own home, and the aggravating circumstance that the appellant was on bail and subject to a good behaviour bond at the time. The appellant's criminal history was extensive, even though it did not include comparable offences of violence. The sentencing judge's finding of special circumstances (a term used in NSW sentencing law to justify increasing the proportion of the sentence spent on parole) was upheld as properly taken into account in fixing the non-parole period.
The Court found neither patent nor latent error in the sentencing process, and declined to intervene.
Orders Made
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Key Takeaways
- A Domican warning about the dangers of identification evidence must be assessed in the context of the summing-up as a whole, not by scrutinising individual passages in isolation.
- Where a conviction rests substantially on photographic identification evidence given by two independent witnesses, the adequacy of the jury direction will be evaluated against the totality of the trial judge's charge.
- No error was established in the sentencing approach where the judge had expressly itemised and balanced seventeen separate sentencing factors, including objective seriousness, aggravating circumstances, and the appellant's criminal antecedents.
- Intervening in a sentence on the basis of latent error requires that the end result itself demonstrates a miscarriage in the sentencing process; a mere disagreement with the outcome is insufficient.
- In dismissing both appeals, the Court of Criminal Appeal confirmed that the absence of forensic evidence does not preclude a jury from convicting on the basis of carefully considered eyewitness identification, provided proper directions are given.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97 (armed robbery)
Cases
- Festa v The Queen [2001] HCA 72
- Domican v The Queen (1992) 173 CLR 555
- R v Sorlie [1925] 25 SR (NSW) 532
- R v Taliai (NSWCCA, 11 April 1997, unreported)
- Azzopardi v The Queen [2001] 205 CLR 50