Al-Salmani v The King

Case [2023] NSWCCA 83


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Al-Salmani v R [2023] NSWCCA 83
Hearing dates: 10 March 2023
Date of orders: 17 April 2023
Decision date: 17 April 2023
Before: Bell CJ at [1];
Walton J at [123];
Davies J at [124]
Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords:

CRIMINAL PROCEDURE – trial – jury – whether jury was free to deliberate without time pressure – whether denial of procedural fairness – whether trial judge ought to have ruled on application to discharge the jury or considered the possibility of adjourning the trial - where multiple jurors discharged – where length of trial prolonged – where trial took place in period leading up to Christmas – where sitting hours were extended - where trial judge directed jury that they should not feel pressured to reach a verdict – where verdict was returned in less than two hours

EVIDENCE – witness evidence – cross-examination – whether failure to comply with the rule in Browne v Dunn (1893) 6 R 67 – whether breach of prosecutor’s duty to present the whole case and call all relevant evidence – where evidence adduced that handbrake of vehicle was engaged following collision – where Crown’s case was that handbrake was not engaged at the time of the collision – where first responders to collision were not questioned about whether they had applied the handbrake – where allegation that first responders might have applied handbrake arose in cross-examination of Crown’s expert

EVIDENCE – witness evidence – expert evidence – s 79(1), Evidence Act 1995 (NSW) – whether expert opinion was not wholly or substantially based on specialised knowledge based on training, study or experience – where opinions were not objected to at first instance

EVIDENCE – witness evidence – cross-examination – s 103, Evidence Act 1995 (NSW) – whether cross-examination of expert as to their credibility without leave gave rise to a miscarriage of justice – where questions were objected to – where trial judge directed the jury to disregard the questions

CRIMINAL PROCEDURE – trial – whether cumulative effect of multiple irregularities deprived the accused of a fair trial – where irregularities of a different character – where irregularities individually did not give rise to a miscarriage of justice

Legislation Cited:

Crimes Act 1900 (NSW) s 52A(2)

Evidence Act 1995 (NSW) ss 79(1), 103

Cases Cited:

AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8

Anderson v R (2010) 202 A Crim R 68; [2010] NSWCCA 130

Browne v Dunn (1893) 6 R 67

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28

El Hassan v R [2007] NSWCCA 148

Fadel v R (2017) 94 NSWLR 670; [2017] NSWCCA 134

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA…

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Al-Salmani v The King [2023] NSWCCA 83
Case
[2023] NSWCCA 83
Decision Date

CaseChat Overview and Summary

The case of Al-Salmani v The King involved the defendant, Al-Salmani, appealing against his conviction for various criminal offences. The trial court proceedings were the subject of the appeal, focusing on the procedural fairness and the handling of evidence during the trial. The High Court of Australia heard the appeal and determined several key legal issues. The court was required to decide whether the jury was able to deliberate without undue pressure, the implications of the trial judge's handling of juror discharge and trial adjournment, and the admissibility and impact of certain evidence presented during the trial.

The court examined whether the jury's deliberation was conducted under undue time pressure, despite the trial judge's direction to the jury that they should not feel pressured to reach a verdict. It considered the procedural fairness in light of the extended sitting hours, the timing of the trial in the lead-up to Christmas, and the eventual discharge of multiple jurors. The court also assessed whether the trial judge should have ruled on an application to discharge the jury or considered adjourning the trial. Additionally, the court addressed whether the failure to call certain witnesses and the cross-examination of an expert witness without leave constituted a breach of the prosecutor's duty to present the whole case and whether these breaches cumulatively deprived the accused of a fair trial.

The High Court concluded that while there were procedural irregularities during the trial, none of them individually or cumulatively deprived the accused of a fair trial. The court found that the trial judge's direction to the jury, the handling of juror discharge, and the evidence issues did not amount to a miscarriage of justice. The appeal was dismissed, and the original conviction was upheld.

The final orders of the court were that the appeal be dismissed, and the conviction of the defendant, Al-Salmani, on the criminal charges was maintained. The court held that the trial was conducted fairly, and the procedural issues did not undermine the outcome of the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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