Kanaan & Ors v Regina [2006] NSWCCA 109 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
10–11 February 2005
JUDGMENT DATE:
13 April 2006
JUDGMENT OF:
Hunt AJA at [1]; Buddin J at [1]; Hoeben J at [1]
DECISION:
1. The appeal against conviction by each of the appellants is dismissed.; 2. The application by the appellant Kanaan to defer an application for leave to appeal against sentence is refused.; 3. The application by the appellant Mawas for an extension of time within which to seek leave to appeal against sentence is granted, leave to appeal is granted but the appeal against sentence is dismissed.; 4. The application by the appellant El-Assaad for leave to appeal against sentence is granted and (by majority) the appeal against his sentence is allowed. The sentence imposed in the Common Law Division is quashed, and in lieu thereof the appellant El-Assaad is sentenced to a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. He is eligible for release on parole on 16 March 2016.
CATCHWORDS:
Assassination of head of criminal organisation by members of that organisation — joint criminal enterprise — Crown case relied principally on evidence of former member of organisation who might reasonably be supposed to have been criminally concerned in that enterprise — witness given undertaking by Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. - Bases on which “accomplice” evidence may be unreliable — extent to which judge required to warn jury about matters not within their general experience and understanding — except in relation to identification evidence, judge required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury. - Direction that dangerous to convict on uncorroborated evidence of “accomplice” unnecessary but not prohibited — whether independent support for evidence of “accomplice” may be found in evidence of another “accomplice”. - Evidence of negative identification by Crown witness — no application by Crown prosecutor to cross-examine witness — Crown prosecutor asks jury to disbelieve her evidence — whether leave to cross-examine would have been given — whether accused lost opportunity to call evidence supporting negative identification made — nature of directions concerning negative identification.
[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.
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AGLC
Kanaan v R [2006] NSWCCA 109
Case
[2006] NSWCCA 109
Decision Date
CaseChat Overview and Summary
In the case of Kanaan v R, the respondents, the Crown, appealed against their convictions and sentences by the Supreme Court of Victoria. The appeal related to the assassination of the head of a criminal organisation by members of that organisation, which was treated as a joint criminal enterprise. The primary evidence presented by the Crown was from a former member of the organisation, who might reasonably have been criminally involved in the enterprise. This witness was given an undertaking by the Attorney General that his evidence would not be used against him if it was truthful.
The legal issues centred on the reliability of evidence from an accomplice, the extent to which the judge should warn the jury about the unreliability of such evidence, and whether it was necessary to direct the jury that it was dangerous to convict on uncorroborated evidence of an accomplice. Additionally, the appeal addressed the application of cross-examination to a Crown witness and the implications for the accused when the opportunity to call evidence supporting a negative identification was lost.
The court found that the judge did not err in his directions to the jury regarding the evidence of the accomplice. The judge was not required to extensively warn the jury about the unreliability of accomplice evidence, except in relation to identification evidence. While it was not necessary to direct the jury that it was dangerous to convict on uncorroborated accomplice evidence, such a direction was not prohibited. The court also determined that the Crown prosecutor's failure to apply for leave to cross-examine the witness who gave negative identification evidence did not prejudice the accused, and the judge's directions concerning the negative identification were not flawed.
The final orders of the court were to dismiss the appeal and affirm the convictions and sentences of the respondents.