R v Dhanhoa

In May 2000 the appellant was convicted by a jury of (i) aggravated robbery in company with wounding, and (ii) detaining for advantage and causing injury. He was sentenced to an effective total period of 7½ years with a non-parole period of 4 years.

The evidence called by the Crown at trial included identification of the appellant, by the victim, from photographs. The trial Judge did not give a warning or direction to the jury in respect of this evidence. This formed the first ground of appeal. The second ground of appeal was in relation to untruths told by the appellant when interviewed by police. The trial Judge commented on the untruths but did not give any direction to the jury about it or analyse its significance. The appellant submitted that a direction should have been given in relation to that evidence.

HELD per Meagher JA (Dowd J agreeing) & Kirby J: (i) The principle of Domican v R, requiring a warning to be given in respect of identification evidence only applies where "any significant part" of the Crown case turns on identification. Here, no part of the Crown case did.

(ii) Per Meagher JA (Dowd J agreeing): The evidence of the untruths was not led as evidence going to credibility, therefore a Zoneff v R direction was not required. The evidence must have been relied upon as evidence of consciousness of guilt, which requires an Edwards v R direction. However, the Crown did not rely upon it when addressing the jury, the Judge did not tell the jury its significance and the appellant's counsel did not ask for an Edwards direction. In all the circumstances, even if the ground is made out, the appeal should nonetheless be dismissed by applying the proviso to s 6(1) of the Criminal Appeals Act.

Per Kirby J (dissenting): The evidence of the untruths was led as evidence which may ultimately justify a submission that the appellant had lied through a consciousness of guilt. However, in the result, there was no evidence capable of supporting such a finding. Thus there was no occasion for an Edwards direction. However, the submission by the Crown attacked the credibility of the appellant's account. That submission, repeated in the summing up, and the prominence given to the issue, created the risk of misunderstanding about the significance of possible lies, in the absence of some explanation from the trial Judge. Thus ground two has been made out.

1 MEAGHER JA: In May 2000 the appellant, Mr Dhanhoa, stood his trial before Kinchington DCJ and a jury charged with (i) aggravated robbery in company, with wounding, and (ii) detaining for advantage and causing injury. He was convicted of both offences by the jury, and sentenced by the judge to an effective total period of 7½ years with a non-parole period of 4 years, to date from 5 May 2000. He appealed to this court both on conviction and sentence. 2 The crimes of which he was accused arose out of certain events which took place on 19/20 January 1999. The victim, a certain Mr A H Schembri, went to the Bridge Hotel at Balmain to play some pool. He played pool with someone he had not previously met, of Indian origin, who introduced him to three of his friends, also of Indian (or possibly Sri Lankan) origin. After playing pool with these four people for some time (on one version of it, not always amicably), he invited the four of them back to his unit at 56 Rosser Street Balmain, in order to smoke some marijuana together. All four strangers accepted this invitation. 3 How long the guests remained there is a matter of some obscurity, but it would seem to be (on the victim's account) something between 15 minutes and one hour. But what happened there, on the victims' story, is not in the least obscure. After smoking a little marijuana, and discussing (of all things) Korean martial art, one of the guests gave him a severe head-butting, one of them held him by the throat against the wall, one of them took a Wiltshire knife from the kitchen drawer and stuck it into his back (thereby damaging both his kidneys and one of his lungs), one of them relieved him of his wallet, and one of them armed himself with the victim's (imitation) Samurai Sword. 4 Whilst it is clear on the victim's account that his assailants did all these things, his evidence as to which of them did what is less than clear. 5 On it being told to his four guests that he had a small sum of money in his bank, they escorted him down the street with a view to driving him in their car to an ATM. Mr Schembri was quite certain that all four of his guests did this: two of them had his arms, one walked in front of him, and one walked behind. 6 There were various scuffles in the street, and he eventually reached the house of a samaritan neighbour who looked after him. 7 Two of his neighbours, on hearing the noises emanating from the street scuffles, opened their windows and observed the affray. Both of these witnesses, a Mr Sullivan and a Mr Patterson, said they observed three assailants attacking Mr Schembri, not four. 8 The appellant gave evidence. He did not deny the playing of pool, the number of people at that game, the invitation to visit the victim's flat, and the acceptance of that invitation. However, he denied being present at the flat when any assaults or fights took place, and said he left early (after perhaps ten minutes). This, according to his counsel, is verified by the fact that Messrs Sullivan and Patterson saw three assailants, not four. 9 There was some photographic identification evidence, procured not long before the trial. There was also evidence that Mr Dhanhoa's fingerprints were found on a coffee table at the flat. 10 The appellant's first ground of appeal is that; "His Honour gave no direction or warnings to the jury in respect of identification … including the matters required by s 115(7). The summing up was defective given the failure of the trial judge to sum up at all on identification, and to warn the jury in accordance with s 165 of the Evidence Act ". (This is a quotation from the appellant's written submissions). Domican v R (1992) 173 CLR 551 at 561 was prayed in aid. Certainly the identification evidence was not strong (indeed, one wonders why the Crown led it) and no warnings were given. However, that, in my view, does not matter. The principle of Domican only applies where "any significant part" of the Crown case turns on identification. Here, no part of the Crown case did. 11 The Crown's case was that four people, including the appellant, were, at all material times, engaged on a joint criminal enterprise. The appellant's case was that, whatever was true of his three companions, he was absent at the crucial moments. The case was fought on this basis - were there three assailants or four? There was plenty of evidence either way. The jury must have found in the victim's favour, in which case no question of the appellant's identification arose then or arises now. 12 The second, and only other, ground of appeal was in relation to the so called "lies". This arises from an interview between a police officer and the appellant which took place on 27 September 1999. The appellant told the police officer that he could not imagine how his fingerprints appeared on a table in the victim's flat; that he had never been to the Bridge Hotel at Rozelle; and that he knew "nothing about" playing pool on the night of 19 January 1999. These were obviously untruths; whether they were lies or not is not established. His Honour never categorised these as "lies". The matter was raised by the Crown, cross-examined on by counsel for the appellant, and commented on by the Judge on four or five occasions in his summing up. But, whilst commenting on it, his Honour did not give any directions to the jury about it, or, indeed, analyse its significance. The appellant's submissions are that it can only have been led as evidence of guilt, in which case an Edwards v R (1993) 178 CLR 193 direction should be given; or as evidence going to credibility in which case a Zoneff v R (2000) 200 CLR 234 direction should have been given. It is clear enough that the second possibility can be discarded. Not so the first. I cannot see why the evidence was led unless the Crown sought to rely on it as evidence of consciousness of guilt, but if that be true, it is extraordinary that the Crown did not rely on it when addressing the jury, and equally extraordinarily that the Judge did not tell the jury exactly what its significance was. Nor, for that matter, did the appellant's counsel ask for an Edwards direction. In all the circumstances, if the ground is made out (which I don't think it is), I should nonetheless dismiss the appeal by applying the proviso to s 6(1) of the Criminal Appeals Act. 13 The appeal against severity was withdrawn. 14 In my view, therefore, the appeal should be dismissed. 15 DOWD J: I have read the judgment in draft form of Meagher JA. I agree with the proposed order and his Honour's reasons therefore. 16 KIRBY J: I have had the advantage of reading the judgment of Meagher JA in draft. However, I have formed a different view in respect of the second ground of appeal. I should also say something about the first ground.

The Identification Evidence 17 The first ground of appeal was as follows: "1. The trial Judge failed to direct the jury, adequately, or at all, in relation to identification evidence." 18 The circumstances giving rise to the charge, and the way in which the case was fought, are described by Meagher JA. The evidence called by the Crown included an identification of the appellant by the victim, from photographs. However, the appellant acknowledged his presence in the flat, asserting that he had left the flat before the assault and robbery took place. 19 The Crown case did not seek to differentiate between members of the group, whether inside or outside the flat. All were said to have been parties to a joint criminal enterprise. The issue, therefore, was not one of identification. It was whether the group comprised three members or four. Should a warning have been given in these circumstances? 20 In Kelleher v The Queen [1974] 131 CLR 534, Gibbs J said this: (at 551) "However, it seems to me that although it is perfectly true that the adequacy of a summing up can only be decided in the light of the circumstances of the particular case, and that where a warning is necessary no particular form of words is required, it is in practice generally desirable that where the case for the prosecution includes evidence of visual identification by a person previously unfamiliar with the accused, an appropriate warning should be given to the jury, since jurors may not appreciate as fully as a judge may do, or even at all, the serious risk that always exists that evidence of that kind may be mistaken. The failure to give an adequate warning where one is required may have the result that the conviction must be quashed …" 21 However, in this case, as Meagher JA points out (referring to Domican v The Queen (1992) 173 CLR 551 at 561), identification evidence did not play any significant part in the proof of the appellant's guilt. In my view, no warning was called for. The first ground must fail.

A Direction in Respect of Lies 22 Ground 2 was in these terms: "2. The trial Judge failed to direct the jury, adequately, or at all in relation to lies allegedly told by the appellant." 23 The incident giving rise to the charges took place in January 1999. In September that year, Det Napper arrested Mr Dhanhoa. Shortly before his arrest Det Napper told Mr Dhanhoa that he was investigating an incident in which the victim had invited a group from a "pub" in Rozelle back to his unit. Once at the unit, the victim had been repeatedly stabbed and his property taken. He was later abducted in order to gain access to a bank account through an automatic teller machine. Having provided that background, Det Napper said this: (T.84/85) "I said 'I will be up front with you, your fingerprints have been located inside the unit where this happened can you explain how your prints came to be there?' He said 'I've got no idea how they came to be there.' I said 'Do you wish to take part in any form of interview regards to this matter?' He said 'No not at the moment.'" 24 Det Napper continued: "I said 'Have you ever been to the Bridge Hotel at Rozelle?' He said 'No, where's the Bridge Hotel?' I said 'Allegedly you were playing pool and watching Sri Lanka playing cricket on the TV.' He said 'No I know nothing about it.'" 25 The appellant gave evidence. He was cross examined about his conversation with the police. The cross examination included the following: (T.103) "Q. When you spoke to the police at Burwood on 27 September? A. Yeah, yah. Q. At that stage you didn't remember being at Balmain at all? A. No." 26 Det Napper apparently provided the appellant with a copy of the "Facts Sheet", being a short summary of the background to the charge. A cross examination proceeded as follows: "Q. The fact is that you remembered about this event occurring when the police were charging you and they were giving you a copy of the (facts)sheet detailing what these events were? A. I remember the night. Q. You didn't say anything to the police at that stage that what I told you earlier was wrong I do remember? A. Pardon. Q. You didn't say anything to the police at that time? A. No, no." 27 Mr Dhanhoa acknowledged that he later received and read the police brief. The following was then put: (T.164) "Q. You told the police that you didn't really have any Indian acquaintances that's not true is it? A. Yeah it is true. Q. Isn't a person by the name of Ahmed Abass and Harry Abass those two persons are very close friends of yours aren't they? A. Not close friends but I know them. Q. They are Indian origin aren't they? A. They are Lebanese." 28 Finally, the Crown asked the following questions: (T.165) "Q. You knew about the Bridge Hotel prior to arriving at the hotel? A. Yeah. Q. So it wasn't true that you had never heard of the Bridge Hotel before? A. I heard of it that night I was told that it was open after twelve." 29 That is as far as the cross examination went. The evidence from Det Napper was, no doubt, led by the Crown as evidence which may ultimately justify a submission that the appellant had lied through a consciousness of guilt. There was an apparent contradiction between the appellant's ignorance when first confronted, and the detailed knowledge he professed in the defence he ultimately provided. It was not inappropriate, in my view, that the Crown should have led the evidence, and explored that apparent contradiction. 30 However, in the result, there was no evidence capable of supporting a finding that the appellant had lied through a consciousness of guilt. There was no occasion, therefore, for a direction in conformity with Edwards v The Queen (1993) 178 CLR 193. Such a direction could only have been justified if the criteria identified by the High Court had arguably been satisfied, namely: · First, proof of a deliberate lie by the appellant. · Secondly, proof that the lie was in respect of a material issue, that is a central issue in the trial. · Thirdly, proof that the lie was told because the appellant knew the truth would implicate him in the commission of the offence. 31 Here one may doubt that the Crown could even establish that the appellant had deliberately lied. Det Napper had not asked the appellant whether he knew anything about the incident which he had just described. He asked for an explanation as to how his fingerprints came to be found inside the unit. The appellant's response (that he had "no idea") may have been literally true. The only statement which may have been a lie, and which was certainly untrue, was the appellant's denial that he had been to the Bridge Hotel at Rozelle. However, even were that a lie, one may doubt that it could have been regarded as a lie concerning a material issue. The events at the hotel took place some time before the incident. Moreover, no suggestion was made in cross examination by the Crown Prosecutor that the appellant had provided answers to the detective through fear that the truth may implicate him in the offence. 32 The Crown, understandably in these circumstances, did not seek a direction in conformity with Edwards v The Queen. Had the issue been abandoned by the Crown, there may have been no occasion for complaint by the appellant. However, the issue was not abandoned. The addresses of counsel were not recorded. His Honour referred to the following submission made by the Crown: (Summing Up 56) "The Crown says … you will remember what the accused said when he was spoken to by the police officers at the time of his arrest and compare that to what he says to you now remembering that he received the police brief in this matter in February." 33 His Honour then added the following comment: (Summing Up 56) "All those matters are part of the Crown case and it is for you to determine whether there is any relevance in that or whether there is not. It is entirely a matter for you." 34 Elsewhere in the summing up, his Honour, when reviewing the evidence, referred to the testimony of Det Napper, and the cross examination of the appellant, in the passages set out above. Given the way in which the Crown put its case, the issue arises whether the jury should have been given guidance, were they to take the view that the appellant had lied to Det Napper? 35 Written submissions made on behalf of the appellant asserted the following: (p5) "If this evidence was relied upon as evidence of consciousness of guilt then directions should have been given in accordance with Edwards v R (1993) 178 CLR 193. If not, then directions should have been given in accordance with Zoneff v R (2000) 200 CLR 234." 36 In Zoneff v The Queen [2000] HCA 28, the Court dealt with a case in which, as here, there was no basis upon which a finding could have been made against the appellant that he had lied out of a consciousness of guilt. The majority (Gleeson CJ, Gaudron, Gummow, and Callinan JJ) said this: (para 20) "20. It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant." 37 The Court added the following: (paras 22/24) "22. The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which, as Olsson J observed, raised the topic and then left it largely up in the air. 23. A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: 'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt." 24. A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence." 38 The Crown case against the appellant was not without difficulty. The events in the unit happened in a rush. The victim was outnumbered, and wounded. His description of his assailants makes it difficult to assign any particular role to the appellant. The Crown's rebuttal of the suggestion by the appellant that he left the unit, substantially depended upon the victim's assertion that the same four people were involved in the events inside and outside the unit. Yet the victim's evidence on this aspect was less than dogmatic. He said this: (T.19) "Q. You said that they walked you. Can you describe how they walked you? A. One on either side of me with their arms around me. Q. Who were the men who walked either side of you with their arms around you? A. I can't say, I can't recall exactly which of the four, which two of the four. Q. Where were the other two men when two of them had hold of you by your arms either side? A. I think just one in front and behind just up close next to me. Q. So one in front, one behind and two either side? A. Yeah." 39 Shortly after the victim broke free, and escaped. 40 Two eye witnesses were called. They each saw the victim and his assailants in the street. Their evidence, however, furnished some support for the appellant's account. Each described having seen the victim surrounded by three men, not four. Each acknowledged, however, that his vision may have been obscured. 41 In this context the credibility of the appellant was obviously important. The submission by the Crown attacked the credibility of the applicant's account. 42 Here, I believe that the submission by the Crown, repeated in the summing up, and the prominence given to the issue, created the risk of misunderstanding about the significance of possible lies in the absence of some explanation from the trial Judge (cf R v Galea [2001] NSWCCA 270, paras 84 to 90). I therefore believe that ground 2 has been made out. 43 No redirection was sought by counsel then appearing for the appellant. Rule 4 therefore applies. However Zoneff v The Queen was handed down on 25 May 2000, that is, shortly after the trial. The guidance which it provided was therefore not available either to counsel or the trial Judge. I believe leave to appeal should be granted. 44 The matter is not one for the application of the proviso to s6(1) of the Criminal Appeal Act. In my view the appellant lost a chance, which was fairly open to him, of acquittal. 45 I would therefore propose the following orders:

1. The appellant should be given leave under Rule 4. 2. The appeal should be upheld. 3. The convictions in respect of each charge should be quashed, and the sentence set aside. 4. There should be a new trial.

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