Dia v Regina [2014] NSWCCA 9

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dia v Regina [2014] NSWCCA 9 Hearing dates: 11/02/2014 Decision date: 20 February 2014 Before: Hoeben CJ at CL at [1] Schmidt J at [72] Barr AJ at [73] Decision: Leave to appeal against conviction granted. Appeal dismissed. Catchwords: CRIMINAL LAW - conviction appeal - offences of entering dwelling house with intent to commit a serious indictable offence, robbery while armed and reckless wounding - key issue in trial identification - whether trial miscarried as a result of trial judge not discharging jury - evidence of a tattoo inadvertently coming before jury - whether impugned evidence seriously damaged defence case - discretionary exercise by trial judge - whether trial judge in special position of advantage - need for appellate court to decide whether risk of a substantial miscarriage of justice - need to consider whole of evidence and conduct of trial - effect of directions by a trial judge - whether verdict was unreasonable and not supported by the evidence - purported weakness of identification evidence - effect of intoxication of principal Crown witness - circumstances in which identification made - advantageous position of jury - grounds of appeal not made out. Legislation Cited: Crimes Act 1900 - s35(3), s97(1), s111(2) Criminal Appeal Act 1912 - s 5(1)(b) Cases Cited: Crofts v R [1996] HCA 22; 186 CLR 427 at 441-442 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 at 493 R v Glennon [1992] HCA 16; 173 CLR 592 SKA v R [2011] HCA 13; 243 CLR 400 Category: Principal judgment Parties: Jaafar Dia - Applicant Regina - Respondent Crown Representation: Counsel: Mr G Brady/Mr A Connell - Applicant Ms H Wilson SC - Respondent Crown Solicitors: Nyman Gibson Stewart - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2011/324650 Decision under appeal Date of Decision: 2012-10-16 00:00:00 Before: Charteris DCJ File Number(s): 2011/324650