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Iskandar v The King

Iskandar v The King

Case [2025] NSWCCA 33 24 March 2025

Appeal

Miscarriage of Justice

Circumstantial Evidence

Conditions of Incarceration

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Iskandar v R [2025] NSWCCA 33
Hearing dates: 2 December 2024
Date of orders: 24 March 2025
Decision date: 24 March 2025
Before: Hamill J at [1]
N Adams J at [138]
Sweeney J at [158]
Decision:
(1) Extend the time in which to appeal.
(2) Leave to appeal on grounds (1) and (3) granted.
(3) Leave to appeal on ground (2) refused.
(4) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – lengthy delay in instituting appeal – where applicant accused of complicity with father in murder of wife’s lover – “honour killing” – whether conduct of Prosecutor led to a “miscarriage of justice” – religious and cultural stereotypes – cross-examination as to applicant’s religious beliefs – conduct not necessary but not improper – issue raised squarely at the commencement of prosecution opening statement – no objection taken – different approaches to “miscarriage” – where High Court reserved on issue – presumptuous and barren exercise to predict outcome – befuddling – alternative approaches considered – strength of prosecution case – application of proviso – whether no substantial miscarriage actually occurred
CRIMINAL LAW – “Shepherd” direction – whether motive or “honour killing” theory required proof beyond reasonable doubt – directions on circumstantial evidence orthodox and correct – specific direction not sought at trial – no merit in ground – leave to appeal on specific ground refused
CRIMINAL LAW – conditions of incarceration – ground asserting transport and conditions establishing a miscarriage – where trial Judge sympathetic and granted adjournments when requested – serious issue raised but no miscarriage established

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(1)
Evidence Act1995 (NSW), ss 41, 41(1)(d), 55, 137
International Convention on the Elimination of All Forms of Racial Discrimination, art 5
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
NSW Barristers Rules 2014 (NSW)
Prosecution Guidelines (NSW)
Racial Discrimination Act 1975 (Cth)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Andrew Iskandar v R [2013] NSWCCA 235
Armstrong v R [2013] NSWCCA 113
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Brawn v The King [2024] HCATrans 85
Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Holmes v R [2024] NSWCCA 233
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMMv The Queen (2016) 257 CLR 300; [2016] HCA 14
Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213
La Rocca v R [2021] NSWCCA 116
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
MDP v The King [2024] HCATrans 84
Minniti v R [2006] NSWCCA 30; (2006) 159 A Crim R 395
Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
Papakosmas v The Queen (1999)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Iskandar v The King

Details

AGLC: Iskandar v The King [2025] NSWCCA 33
Case: [2025] NSWCCA 33
Decision Date: 24 March 2025

CaseChat Overview and Summary

The case of Iskandar v The King involved an appeal against a conviction for complicity in a murder, commonly referred to as an “honour killing.” The High Court of Australia heard the appeal and was required to consider the merits of the arguments raised by the applicant, Iskandar, who claimed that a lengthy delay in instituting the appeal and certain aspects of the prosecution's conduct led to a miscarriage of justice. Additionally, the court considered whether the trial judge should have provided a specific direction to the jury regarding the theory of an “honour killing” and whether the conditions of the applicant's incarceration constituted a miscarriage of justice.

The court examined whether the prosecutor's conduct, including cross-examination about the applicant's religious beliefs, amounted to a miscarriage of justice. The court noted that while such conduct might not have been necessary, it was not improper given the early disclosure of the prosecution's opening statement. The court highlighted that the applicant did not object to this approach at the trial, and it would be presumptuous to predict the likely outcome of the trial if the objectionable conduct had not occurred. The High Court had reserved judgment on the issue of miscarriage of justice, making it a befuddling task to determine whether a miscarriage had actually occurred. Despite these considerations, the court found that the prosecution's case was strong, and thus, the proviso for leave to appeal was not applicable.

The court also assessed whether the trial judge should have directed the jury on the theory of an “honour killing,” requiring proof beyond reasonable doubt. The court found that the judge's directions on circumstantial evidence were orthodox and correct. Furthermore, the court held that since no specific direction was sought at the trial, there was no merit in this ground of appeal. Finally, the court considered whether the conditions of incarceration constituted a miscarriage of justice. Despite acknowledging that the issue of conditions was serious, the court found that no miscarriage had been established given the trial judge's sympathetic approach and the granting of adjournments when requested.

Orders