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10
Court of Criminal Appeal 7 June 2006

Chahine v R

[2006] NSWCCA 179

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION AGGRAVATED ROBBERY WHETHER MISCARRIAGE OF JUSTICE WHETHER VERDICT UNREASONABLE

Citation: Chahine v R [2006] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 7 June 2006
Judge(s): McClellan CJ at CL, Hoeben J, Johnson J

Background

The appellant was convicted by a jury in the Sydney District Court of aggravated robbery under s 95(1) of the Crimes Act 1900. The offence concerned the robbery of a parking attendant at the Prince of Wales Hospital, Randwick, in the early hours of 5 August 2003. Two men were involved: a co-accused pleaded guilty separately and did not give evidence at the appellant's trial.

The Crown's case was entirely circumstantial. The appellant's fingerprints were found at two locations: inside the car park office where the robbery occurred, and on the exterior of a car used as a getaway vehicle. The victim, however, had identified another person from a photographic array and positively excluded the appellant as the offender.

The central question at trial was whether the appellant was one of the two robbers. On appeal, the appellant challenged both the reasonableness of the verdict and several directions given by the trial judge.

  • Whether the verdict was unreasonable and could not be supported by the evidence, given the victim's exclusion of the appellant during photographic identification
  • Whether the trial judge erred in preventing defence counsel from exploring how the person identified by the victim could be excluded as the perpetrator
  • Whether the trial judge erred in refusing to direct the jury that the prosecution's failure to call the person identified by the victim was a matter it could take into account when assessing the Crown case
  • Whether the trial judge misdirected the jury on the onus and standard of proof

Decision

The Court dismissed all grounds of appeal and upheld the conviction. Johnson J (with McClellan CJ at CL and Hoeben J agreeing) delivered the leading judgment.

On the question of unreasonableness, the Court found that the fingerprint evidence was powerful and cogent. The appellant's prints were located at two spatially distinct and significant places connected with the crime: the scene itself and the getaway car. No reasonable innocent hypothesis arose from the evidence to explain the presence of those prints at both locations. While a police officer gave evidence that fingerprints could theoretically be transferred by incidental contact with a car, the Court noted this did no more than raise an abstract possibility unsupported by any contextual evidence.

The Court also found that the victim's identification evidence, taken as a whole, assisted the Crown more than the appellant. The victim's original description of the first offender was broadly consistent with the appellant's appearance, and the photograph the victim selected was of a person who closely resembled the appellant. The jury was entitled to reject the victim's exclusion of the appellant given those similarities, and the Court of Criminal Appeal indicated it was open to take the same approach.

On the misdirection ground concerning the onus of proof, the Court acknowledged that a direction given by the trial judge was erroneous, as it suggested the jury could disregard factual findings favourable to the appellant when assessing guilt. However, the Court concluded that, in the context of the summing-up as a whole and the strength of the fingerprint evidence, no substantial miscarriage of justice resulted. The appeal was therefore dismissed.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • Fingerprint evidence placing an accused at both a crime scene and a getaway vehicle constitutes powerful circumstantial evidence of identification, particularly where no innocent explanation for the presence of those prints emerges from the trial evidence.
  • A victim's exclusion of an accused in a photographic identification does not automatically undermine a guilty verdict where the jury had a proper basis to assess the reliability of that evidence, including the similarity between the photograph selected and the accused.
  • An erroneous jury direction on the standard or onus of proof does not necessarily result in a conviction being set aside: the Court of Criminal Appeal applied the test of whether a substantial miscarriage of justice actually occurred, which requires consideration of the overall strength of the evidence.
  • In dismissing the appeal, the Court confirmed that theoretical or speculative innocent hypotheses regarding fingerprint transfer carry little weight without supporting evidence of a plausible innocent context.
  • Under s 5(1)(b) of the Criminal Appeal Act 1912, a certificate from the trial judge should only be granted where grounds of appeal have been identified; the Court of Criminal Appeal noted that counsel seeking such a certificate should be prepared to articulate those grounds, preferably in writing, before the trial judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases
- R v G (NSW Court of Criminal Appeal, 17 February 1992, BC9203055)
- Jones v Dunkel (1959) 101 CLR 298
- Dyers v The Queen (2002) 210 CLR 285
- Woolmington v Director of Public Prosecutions [1935] AC 462
- R v Youssef (1990) 50 A Crim R 1
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Wilson (2005) 62 NSWLR 346
- TKWJ v The Queen (2002) 212 CLR 124
- Weiss v The Queen (2005) 80 ALJR 444
- Knight v The Queen (1992) 175 CLR 495
- R v Cable (1947) 47 SR 183
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 487
- R v Chahine [2006] NSWCCA 99
- Aslett v Regina [2006] NSWCCA 49
- Nudd v The Queen (2006) 80 ALJR 614