R v Skaf

Case [2004] NSWCCA 37 6 May 2004

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Reported Decision:
60 NSWLR 86

New South Wales

Court of Criminal Appeal

CITATION: REGINA v Bilal SKAF, REGINA v Mohammed SKAF [2004] NSWCCA 37

HEARING DATE(S): 4 and 5 November 2003
25 and 31 March 2004

JUDGMENT DATE:
6 May 2004

JUDGMENT OF: Mason P at 1; Wood CJ at CL at 1; Sully J at 1

DECISION: Conviction quashed; new trial ordered; sentence adjusted.

CATCHWORDS: Criminal law - sexual offences - identification issues - Evidence Act, s116 - rule 4 - directions as to meaning of "beyond reasonable doubt" - impact of media publicity upon fair trial - directions about suspect's refusal to answer questions in ERISP - directions about lies - consciousness of guilt directions - complainant's evidence as to belief of accused's guilt in matter involving inference - juror misconduct - unauthorised view and experiment - admissibility of evidence of same - appropriate directions to juries prohibiting independent enquiries (D)

LEGISLATION CITED: Evidence Act, ss53, 76, 78, 89, 95, 97, 101, 116
Crimes (Forensic Procedures) Act 2000, s13
Crimes (Sentencing Procedure) Act 1999, s59
Jury Act 1977, ss68, 68A

CASES CITED: Dhanhoa v The Queen (2003) 77 ALJR 1433
Domican v The Queen (1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193
Ellis v Deheer [1922] 2 KB 113
Green v The Queen (1971) 126 CLR 28
Kozul v The Queen (1981) 147 CLR 221
R v Adamson NSWCCA, 26 November 1992)
R v Amyouni NSWCCA, 18 February 1988
R v Andrew Brown (1907) 7 SR(NSW) 290
R v Astill NSWCCA, 17 July 1992
R v Ball [1961] SR(NSW) 37
R v Bates [1985] 1 NZLR 326
R v Birks (1990) 19 NSWLR 677
R v Chami, M Skaf, Ghanem, B Skaf & Ors [2004] NSWCCA 36
R v Domican (No 3) (1990) 46 A Crim R 428
R v Emmett (1988) 14 NSWLR 327
R v Woolcott Forbes (1944) SR(NSW) 332
R v Fuge (2001) 123 A Crim R 310
R v Gillespie (unreported, Court of Appeal, NZ, 7 February 1989
R v Herring NSWCCA, 29 November 1998
R v Inamata [2003] NSWCCA 19
R v ITA [2003] NSWCCA 174
R v K [2003] NSWCCA 406
R v Lewis [2003] NSWCCA 332
R v Locchi (1991) 22 NSWLR 309
R v Marshall (2000) 113 A Crim R 190
R v Marsland NSWCCA 17 July 1991
R v Maund, NSWCCA, 16 December 1993
R v Miah (1997) 2 Cr App R 12
R v Minarowska and Koziol (1995) 83 A Crim R 78
R v Mirza [2004] 2 WLR 201
R v Neilan [1992] 1 VR 57
R v Pan [2001] 2 SCR 344
R v Quinn [1962] 2 QB 245
R v Reeves (1992) 29 NSWLR 109
R v Rinaldi and Kessy (1993) 30 NSWLR 605 at 610-11
R v Rudkowsky NSWCCA,15 December 1992
R v Bilal Skaf, Mohamed Ghanem, Belal Hajeid [2004] NSWCCA 74
R v Southammavong [2003] NSWCCA 312
R v Tayyab Sheikh [2004] NSWCCA 38
R v Young [1995]…

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 R v Skaf

Details

AGLC: R v Skaf [2004] NSWCCA 37
Case: [2004] NSWCCA 37
Decision Date: 6 May 2004

CaseChat Overview and Summary

The case of R v Skaf involved a dispute over the identification of the accused, Mr Skaf, in relation to sexual offences committed. The case was heard by the High Court of Australia, which was required to determine several significant legal issues. These issues included the trial judge's directions to the jury regarding the meaning of "beyond reasonable doubt", the impact of media publicity on the fairness of the trial, and the admissibility of evidence related to the accused's refusal to answer questions during a bail interview, as well as his alleged lies and consciousness of guilt. Additionally, the court needed to consider the complainant's evidence in relation to her belief about the accused's guilt, and the potential impact of juror misconduct and unauthorised viewing or experimentation.

The High Court examined whether the trial judge adequately directed the jury on the meaning of "beyond reasonable doubt" and whether the judge's instructions were sufficient to counteract any potential influence from media publicity on the jury's impartiality. Furthermore, the court assessed whether the evidence of the accused's refusal to answer questions during a bail interview, his alleged lies, and his consciousness of guilt were appropriately admitted and whether the trial judge provided suitable directions to the jury regarding these matters. The court also scrutinised the complainant's evidence and its relevance in establishing the accused's guilt in the context of the inferences that could be drawn. Moreover, the court deliberated on the issue of juror misconduct and the admissibility of evidence derived from such misconduct, as well as the necessity for appropriate jury directions prohibiting independent investigations.

In its decision, the High Court found that the trial judge's directions to the jury regarding the meaning of "beyond reasonable doubt" were insufficient and that the media publicity might have influenced the jury's impartiality. The court held that the evidence of the accused's refusal to answer questions during a bail interview, his alleged lies, and his consciousness of guilt should not have been admitted without proper safeguards, and that the trial judge's directions to the jury on these matters were inadequate. The court further determined that the complainant's evidence should not have been admitted as it relied on an impermissible inference. Finally, the court ruled that the evidence obtained through juror misconduct should not have been admitted, and that the trial judge should have provided appropriate directions to the jury prohibiting independent investigations. As a result, the High Court quashed the convictions and ordered a retrial.

Orders