Domican v The Queen [1992] HCA 13

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Domican v The Queen [1992] HCA 13

ORDER Appeal allowed. Set aside the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof allow the appeal against conviction to that Court, quash the conviction and order that there be a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

1992, May 6 Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ.

The appellant, Thomas Christopher Domican, was convicted by a jury in the Supreme Court of New South Wales of shooting at Christopher Dale Flannery with intent to murder him. The appellant contends that the trial judge misdirected the jury on the issue of the identification of the gunman by failing to give specific warnings concerning various features of the evidence of an eyewitness to the shooting. He also contends that the Court of Criminal Appeal erred in holding that, although the trial judge's directions on identification fell short of the standard required by certain decisions of that Court, the direct and circumstantial evidence identifying the appellant with the crime "remained to remove any concern that the lack of specificity in the judge's warnings about identification evidence was such as to result in a mistrial". This Court has already granted the appellant special leave to appeal against his conviction. In our opinion, the appeal should be allowed.

The circumstances of the case

At about 5.50 p.m. on 27 January 1985, a gunman suddenly fired about 30 shots from an Armalite rifle in the direction of Mr. Flannery as he and his wife were walking in the driveway of their home. The gunman was sitting in a green car parked at the front of the driveway. The Flannerys took cover behind the front of their car. A bullet went through Mr. Flannery's hand as he pushed Mrs. Flannery's head down. When the shooting stopped, she looked up and saw a man in the driver's seat of the car attempting to disconnect "a long square part of the gun". She said that she "just kept on watching him and he just kept on pulling at it and then when he couldn't get it out, after — I don't know how long it was — he just drove off". At the trial of the appellant, Mrs. Flannery claimed that the gunman appeared to be wearing a wig and false moustache although, when first interviewed and in subsequent statements, she had not suggested that he was disguised. She also said that some weeks after the shooting she saw the gunman, without the wig or moustache, driving a milk truck near her home. Some time later she and her mother saw the appellant sitting in an orange Ford Falcon sedan at the end of her street. He ducked as they approached. The letters of the number plate were "HHI". A police officer gave evidence that in March 1985 he had seen an orange Ford Falcon sedan "HHI 627" parked outside the appellant's home. Mrs. Flannery said that in April 1985 she recognized the appellant as the gunman after seeing him interviewed on four television programmes. But it was not until some months later that she informed the police that the appellant was the gunman. Indeed, in May 1985 she said she could not identify the gunman.