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Court of Criminal Appeal 20 February 2014

Dia v Regina

[2014] NSWCCA 9

Assault & violenceTheft & property
CRIMINAL LAW CONVICTION APPEAL KEY ISSUE IN TRIAL IDENTIFICATION DISCRETIONARY EXERCISE BY TRIAL JUDGE EFFECT OF DIRECTIONS BY A TRIAL JUDGE ADVANTAGEOUS POSITION OF JURY

Citation: Dia v Regina [2014] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 20 February 2014
Judge(s): Hoeben CJ at CL; Schmidt J; Barr AJ

Background

The appellant was convicted by a District Court jury of five offences arising from a home invasion at a residential premises in Padstow on 26 September 2011. The offences included entering a dwelling with intent to commit robbery in circumstances of aggravation, three counts of armed robbery, and reckless wounding in company. A co-accused was tried jointly on the same indictment.

The Crown case was that the appellant was one of a group of young men who forced their way into the home, threatened the occupants with knives, and stole mobile phones and other property. One occupant was stabbed in the leg and required hospital treatment. The co-accused was identified by occupants who already knew him. The appellant's identification rested primarily on a single witness, Jade McCann, who recognised him from a photograph on Facebook the day after the incident.

The appellant was sentenced to an aggregate non-parole period of three years and three months. He sought leave to appeal against conviction only, raising two grounds: that the trial miscarried because the trial judge failed to discharge the jury after prejudicial evidence about a tattoo inadvertently came before them, and that the verdict was unreasonable and unsupported by the evidence.

  • Whether the trial judge erred in not discharging the jury after evidence of a tattoo on the appellant's arm was inadvertently placed before the jury, potentially prejudicing the defence case
  • Whether the verdict was unreasonable or not supported by the evidence, having particular regard to the quality and reliability of Ms McCann's Facebook-based identification of the appellant

Decision

On the first ground, the Court considered whether the inadvertent tattoo evidence seriously damaged the defence case to the point that no curative direction could remedy the prejudice. The Court found that the trial judge was in a privileged position to assess the impact of that evidence on the jury, and that his discretionary decision not to discharge the jury was a sound one. The tattoo evidence was not, in the Court's view, so damaging that the trial had miscarried as a result of it remaining before the jury. Applying the principles from Crofts v R and R v Glennon, the Court held that appellate intervention was not warranted.

On the second ground, the Court examined the reliability of Ms McCann's identification of the appellant. The Court acknowledged real dangers in photographic identification, particularly where images were viewed informally through Facebook rather than through a formal police process. However, the Court noted that on the night of the offences Ms McCann was viewing Facebook images to confirm the identity of the co-accused Fawaz, not to identify other offenders. It was only the following day, when actively searching for the other participants, that she identified the appellant from a photograph on his Facebook page.

The Court drew an analogy between that process and a witness attending a police station to view a photographic array or line-up, finding it an acceptable method of identification. The so-called "displacement effect" (the risk that memory of a face seen in a photograph might displace or corrupt memory of the actual offender) was found to be significantly reduced in the circumstances. The trial judge had also given clear warnings to the jury about the dangers of identification evidence. On the whole of the evidence, the Court held it was open to the jury to be satisfied beyond reasonable doubt as to the identification of the appellant, and neither ground of appeal was made out.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge holds a position of particular advantage when deciding whether to discharge a jury following inadvertently placed prejudicial evidence, and appellate courts will be slow to interfere with that discretionary exercise.
  • A conviction resting substantially on a single witness's identification from a Facebook photograph is not inherently unreasonable, provided the jury is properly warned about the dangers associated with that form of identification.
  • Where a witness views photographs for one purpose (confirming a known person) and only later views different photographs with the intent of identifying unknown offenders, the risk of a displacement effect on memory is materially reduced.
  • In dismissing the unreasonable verdict ground, the Court reaffirmed that an appellate court must consider the whole of the evidence and the conduct of the trial before concluding a jury's verdict was not open to it.
  • Informal photographic identification through social media can be treated as analogous to a formal police photographic array, making evidence of such identification admissible, though it remains subject to careful jury direction on reliability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 35(3), 97(1), 111(2)
- Criminal Appeal Act 1912 (NSW): s 5(1)(b)

Cases
- Crofts v R [1996] HCA 22; 186 CLR 427
- House v The King [1936] HCA 40; 55 CLR 499
- Khazaal v R [2011] NSWCCA 129
- M v The Queen [1994] HCA 63; 181 CLR 48
- R v Glennon [1992] HCA 16; 173 CLR 592
- SKA v R [2011] HCA 13; 243 CLR 400