Regina v David James Dodd [2002] NSWCCA 418

Reported Decision : (2002) 135 A Crim R 32

New South Wales Court of Criminal Appeal

CITATION : Regina v David James Dodd [2002] NSWCCA 418 FILE NUMBER(S) : CCA 60011/02 HEARING DATE(S) : 3 October 2002 JUDGMENT DATE : 11 October 2002

PARTIES : Regina David James Dodd JUDGMENT OF : Meagher JA at 1; Sully J at 2; Sperling J at 76

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/61/0061 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : W. Dawe QC - Crown I. H. McClintock SC - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant

LEGISLATION CITED : Crimes Act 1900 (NSW) Festa v The Queen [2001] HCA 72 Domican v The Queen (1992) 173 CLR 555 CASES CITED: R v Sorlie [1925] 25 SR (NSW) 532 R v Taliai (NSWCCA, 11/4/97, unreported) Azzopardi v The Queen [2001] 205 LR 50 DECISION : Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL 60011/02

MEAGHER JA SULLY J SPERLING J Friday 11 October 2002

REGINA v DAVID JAMES DODD Judgment 1 MEAGHER JA: I agree with Sully J. 2 SULLY J: Between 13 and 16 August 2001 the appellant, Mr. Dodd, stood trial before Judge Nield and a jury in the District Court at Bathurst. The appellant was tried upon a charge of having robbed, whilst armed with an offensive weapon, namely a knife, one John Weldon. The robbery was alleged to have taken place at Orange on 25 August 2000. An offence of this kind contravenes section 97 of the Crimes Act 1900 (NSW); and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. 3 On 16 August the jury found the appellant guilty as charged. He was subsequently convicted and sentenced to imprisonment for 7 years with a non-parole period of 4 years 6 months. The appellant now appeals against his conviction; and applies for leave to appeal against his sentence. 4 Nine grounds of appeal against conviction have been notified. Before dealing with them, it is appropriate to point out that it was not controversial at the trial that Mr. Weldon had in fact been robbed at knifepoint in his own home at Orange on 25 August 2000. Neither was it controversial at trial that there had been two assailants; that both had been male Aboriginals; and that one of them had been a juvenile named Brian Thomas Whitton with whom the victim Mr Weldon was well acquainted. The only issue of substance at the appellant's trial was whether or not he had been correctly identified as the other assailant. 5 The juvenile assailant was dealt with in the Children's Court. He was, as it would seem, unwilling to give evidence against the appellant; and he was not called at the appellant's trial. 6 The appellant himself gave no evidence at his trial. He made no out-of-Court inculpatory admissions; although he did protest his innocence in out-of-Court statements to the investigating police officers. There were no fingerprints, DNA samples; or other similar physical evidence capable of connecting the appellant with the robbery.