R v Skaf

Case [2004] NSWCCA 74 7 April 2004

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CITATION: REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 revised - 29/04/2004

HEARING DATE(S): 8, 9 and 10 October 2003

JUDGMENT DATE:
7 April 2004

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

DECISION: Each appeal against conviction dismissed.

CATCHWORDS: Criminal appeal - kidnapping and sexual assault in company - separate trial applications - evidence of prior convictions - whether good character had been raised - identification evidence - directions on identification - whether defence submissions unsupported by evidence impacted upon fair trial for co-accused - judicial response thereto - whether warning about unreliability of evidence of co-accused appropriate - directions in relation to failure to testify - whether comment" infringed Evidence Act, s20(2) - whether address of counsel for one defendant caused co-accused's trial to miscarry - whether verdicts unreasonable - evidence that medical examination of complaints was "consistent" with their history of assaults. (D)

LEGISLATION CITED: Criminal Appeal Act 1912, s6
Evidence Act 1995 ss20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), s192(2)
Justices Act 1902 ss75B, 100AB

CASES CITED: Adler [2002] NSWCCA 180
Alexander v The Queen (1981) 145 CLR 395
Azzopardi v The Queen (2001) 205 CLR 50
Chami (2002) 128 A Crim R 428
Chen (2002) 130 A Crim R 300
Clarke (1997) 97 A Crim R 414
Darby v The Queen (1982) 148 CLR 668
Dhanhoa v The Queen (2003) 77 ALJR 1433, [2003] HCA 40
Domican v. The Queen (1992) 173 CLR 555
Doney v The Queen (1990) 171 CLR 207
Dyers v The Queen (2002) 210 CLR 285
Eastman v The Queen (1997) 158 ALR 107
Festa v The Queen (2001) 208 CLR 593
Gabriel v The Queen (1997) 76 FCR 279
Jones v Dunkel (1959) 101 CLR 298
Osland v The Queen (1998) 197 CLR 316
Papakosmas v The Queen (1999) 196 CLR 297
Pitkin v The Queen (1995) 130 ALR 35
R v Al Khair (NSWCCA 20.6.94
R v Bartle & Ors [2003] NSWCCA 329
R v Birks (1990) 19 NSWLR 677
R v Clarke (2001) 123 A Crim R 506
R v Cook NSWCCA unrep, 24.8.98
R v Dann [2000] NSWCCA 185
R v Diez-Orozco [2003] NSWSC 1050
R v Eldridge [2002] NSWCCA 205
R v Fernando [1999] NSWCCA 66
R v Fuller (1994) 34 NSWLR 233
R v ITA [2003] NSWCCA 174
R v JGW [1999] NSWCCA 116
R v Nathan Lee NSWCCA, unreported, 5 May 1997
R v Osman, NSWCCA, 10 March 1998
R v Park [2003] NSWCCA 203
R v RTB [2002] NSWCCA 104
R v Turner (2000) 76 SASR 163
RPS v The Queen (2000) 199 CLR 620
Verma (1987) 30 A Crim R 441
Webb v The Queen, Hay v The Queen (1994) 181 CLR 41
Weissensteiner v The Queen (1993) 178 CLR 217
Williams v The Queen (2000) 119 A Crim R 490

PARTIES :
Regina
Bilal SKAF, Mohamed GHANEM, Belal HAJEID

FILE NUMBER(S): CCA 60032/02; 60174/03; 60380/02

COUNSEL: Crown: D…

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 74
Case: [2004] NSWCCA 74
Decision Date: 7 April 2004

CaseChat Overview and Summary

The case of R v Skaf was heard by the court where the appellants were convicted of various serious offences including kidnapping and sexual assault. The appellants were originally tried together; however, separate trials were ordered for the second appellant, with the first appellant's trial continuing alone. The appeal centred around several aspects of the trial process, including the admissibility of prior convictions, the handling of identification evidence, and the fairness of the trial for the co-accused.

The legal issues before the court included whether the trial judge erred in admitting evidence of prior convictions, whether the good character of the accused had been raised, and if the trial judge's directions regarding identification evidence were adequate. Furthermore, the court considered whether the separate trial for the second appellant was impacted by the evidence presented, and if the judge's warnings and directions to the jury were sufficient. The court also examined whether the remarks made by one of the defence counsels had any impact on the fairness of the trial for the co-accused.

In its reasoning, the court determined that while there were some irregularities in the trial process, they did not undermine the overall fairness of the proceedings. The court found that the evidence of prior convictions was properly admitted, and the directions given to the jury regarding identification evidence were adequate. The court also concluded that the separate trials did not prejudice the appellants, and that the judge's warnings about the reliability of co-accused evidence were appropriate. The court further held that the comments made by one defence counsel did not cause the trial to miscarry and that the verdicts were not unreasonable, especially in light of the medical evidence supporting the complainants' histories of assault.

The final orders of the court were to dismiss the appeals, affirming the convictions of the appellants. The court found that despite the procedural issues, the evidence was sufficient to support the guilty verdicts, and the appellants had not been denied a fair trial.

Orders