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Court of Criminal Appeal 26 May 2003

Regina v Demiroz [2003] NSWCCA 146 revised - 02

[2003] NSWCCA 146

Theft & propertyPublic order & justice offences
CRIMINAL LAW EVIDENCE IDENTIFICATION OF ACCUSED IN ISSUE

Citation: Regina v Demiroz [2003] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 26 May 2003
Judge(s): Sheller JA, Hidden J, Carruthers AJ

Background

The appellant was convicted in the Penrith District Court on two counts of aggravated break, enter and steal and one count of driving a vehicle taken without the owner's consent. The offences were alleged to have occurred on 10 May 2001 in Lidcombe, where the appellant was said to have used a stolen Tarago van to carry out two residential break-ins in the early hours of the morning.

The prosecution's case rested heavily on eyewitness identification evidence. A teenage witness (referred to by the pseudonym AZ) and his father observed a large, well-built man in dark clothing in the street outside their home during the night, and later saw the same man walking down the driveway of a neighbouring property shortly before it was broken into. Those observations formed the critical link connecting the appellant to the offences.

Notably, the Crown's case on all three counts was interlinked: conviction on the count relating to the Vaughan Street break-in would necessarily result in conviction on the remaining two counts. The identification evidence from AZ and his father was therefore central to the entire prosecution.

  • Whether the trial judge erred in failing to give the jury the mandatory directions and warnings about identification evidence required by s 116 of the Evidence Act 1995
  • Whether the trial judge also failed to give the jury a warning under s 165 of the Evidence Act 1995 regarding potentially unreliable evidence
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 applied, such that the convictions should be upheld despite any error of law

Decision

The Court of Criminal Appeal found that the trial judge had entirely failed to give the jury the directions and warnings required by s 116 of the Evidence Act 1995. Section 116 imposes a mandatory obligation to give such directions whenever identification evidence has been adduced. This obligation is broader than the common law position established in Domican v The Queen, which required a warning only where identification evidence represented a significant part of the proof of guilt. Under s 116, the direction must be given regardless of the weight or significance of the identification evidence in the overall case.

Carruthers AJ found that the trial judge, apparently without assistance from counsel on the point, simply overlooked these mandatory statutory requirements. The court noted that the adequacy of an identification warning must be assessed by reference to the quality of the identification itself, including the witness's opportunity to observe, the circumstances of the first identification, and the time elapsed before identification. Other incriminating evidence in the case cannot substitute for or render unnecessary a proper identification direction.

On the question of whether the proviso should be applied to preserve the convictions despite the error, the court declined to do so. Although the Crown case was described as strong, the court was not satisfied that the failure to give appropriate directions had not deprived the appellant of a real chance of acquittal. Applying the principle from Mraz v The Queen, the court held that had the jury been properly directed, there remained a possibility that the appellant would not have been convicted.

Given these conclusions, the court did not need to reach a definitive finding on the second ground of appeal concerning s 165, though the issue was raised. The convictions were quashed and a new trial was ordered on all counts.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • New trial ordered on all counts

Key Takeaways

  • Section 116 of the Evidence Act 1995 imposes a mandatory obligation on trial judges to give identification directions and warnings whenever identification evidence is adduced, regardless of whether that evidence forms a significant part of the Crown case. This is a wider obligation than the common law position under Domican v The Queen.

  • The adequacy of an identification direction must be assessed by reference to the nature and circumstances of the identification itself, including the witness's opportunity to observe, the relationship between witness and identified person, the time between the incident and the identification, and how the first identification was made. The strength of other evidence against the accused does not bear on whether the direction was adequate.

  • A trial judge's failure to give mandatory identification directions constitutes an error of law under s 6(1) of the Criminal Appeal Act 1912.

  • Even in a strong Crown case, the proviso will not be applied where there is a real possibility that a properly directed jury might have acquitted the accused. The test, drawn from Mraz v The Queen, asks whether the omission deprived the appellant of a chance fairly open to him of an acquittal.

  • The absence of any objection or assistance from counsel at trial does not excuse a trial judge's failure to comply with mandatory statutory requirements.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(b)
- Evidence Act 1995 (NSW), ss 116, 128, 165(1)(b), 165(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Domican v The Queen (1992) 173 CLR 555
- Mraz v The Queen (1955) 93 CLR 493
- R v Bruno (NSW CCA, unreported, 19 June 1997)
- R v Clarke (1997) 97 A Crim R 414