SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 - [2013] NSWSC 45

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45
Decision date: 12 March 2013
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Application refused

Catchwords: CRIMINAL LAW - Inquiry subsequent to conviction - applicant convicted of sexual assault offences - whether doubt or question as to guilt - reliability of evidence - where evidence based on dreams or flash backs - whether direction about unreliability of evidence required - whether breach of Prosecution's duty of disclosure - Crimes (Appeal and Review) Act 2001, s 78.
Legislation Cited: Crimes Act 1900 - s 475
Criminal Appeal Act 1912
Crimes (Appeal and Review) Act 2001 - s 78, s 79
Criminal Procedure Act 1986
Evidence Act 1995 - s 4(1)(c)
Director of Public Prosecutions Act 1986 - s 15A
Cases Cited: Eastman v Director of Public Prosecutions [2003] HCA 28; 214 CLR 318
Grey v R [2001] HCA 65; 75 ALJR 1708
Holland, Peter James, Application of, s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
Mallard v R [2005] HCA 68; 224 CLR 125
Rendell, Application of (1987) 32 A Crim R 243
R v Chami, M. Skaf, Ghanem, B. Skaf [2004] NSWCCA 36
R v Eishauer (1997) 96 A Crim R 489
R v G [2005] NSWCCA 291
R v Jenkyns (1993) 32 NSWLR 712
R v McFelin [1985] 2 NZLR 750
R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454
R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; 60 NSWLR 86
R v Skaf, Ghanem, Hajeid [2004] NSWCCA 74
R v Bilal Skaf [2005] NSWCCA 297
R v Bilal Skaf, R v Mohammed Skaf [2006] NSWSC 394
R v Tillott (1995) 38 NSWLR 1
Skaf v R; Hajeid v R; Ghanem v R [2005] HCATrans 744
Bilal Skaf v R; Mohammed Skaf v R [2008] NSWCCA 303
Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116
Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Category: Principal judgment
Parties: Skaf, Bilal (Applicant)
File Number(s): n/a

Introduction

Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (the "Review Act"), Mr Bilal Skaf seeks an inquiry into his convictions for offences he was found to have committed on 30 August 2000. He submits that the matter should be referred to the Court of Criminal Appeal, pursuant to s 79(1)(b) of the Review Act, to be dealt with as an appeal under the Criminal Appeal Act 1912.

Bilal Skaf was tried for those offences along with his brother Mohammed Skaf and two others. Mohammed Skaf was also convicted. He has also made an application under s 78 of the Review Act which was also referred to me. At the time of the publication of this decision I am also publishing my decision refusing Mohammed Skaf's application (Application of Mohammed Skaf [2013] NSWSC 181 (the "Mohammed Skaf Application"). This decision should be read together with that decision. I use the same terminology in this decision as in that decision.

In support of his application Bilal Skaf makes three related complaints. First, he contends that there is the requisite doubt about his convictions because he has become aware of expert evidence that he contends demonstrates the unreliability of the complainant's evidence. In particular he contends that, in her evidence at his trial, the complainant described a process of recalling those parts of her evidence that incriminated him while she was asleep yet the expert evidence he points to demonstrates that evidence recalled in that manner is not reliable.

As further explained below, I reject that contention for two related reasons (see [61] to [71]). The expert evidence relied on was adduced in the course of Mohamed Ghanem's retrial, and is subject to the caveat that there was no independent corroboration of that part of the complainant's evidence that incriminated Mr Ghanem which it is said she recalled through sleeping. However in Bilal Skaf's case that part of her evidence pointing to his involvement was strongly corroborated by telephone records which place him at the scene of some of the sexual assaults and his own admissions. Thus, even if it is correct to say that the complainant only recalled his presence through a process of dreaming, then the accuracy of that recollection so far as it concerned Bilal Skaf was to a very significant degree confirmed.

Further, I do not accept an assumption upon which the expert opinion relied on by Bilal Skaf is based, namely that the complainant's evidence was exclusively derived from dreams or nightmares (and that, in effect, she is merely reciting what she dreamt). I consider that this assumption relies on an overly literal reading of the complainant's description of her process of recalling the events that she gave evidence about.

Second, Bilal Skaf contends that there is doubt about his conviction because the trial judge failed to give a direction concerning the unreliability of the complainant's evidence as it was derived from her dreams. No such direction was sought and no such direction was required (see [72] to [77]).

Third, Bilal Skaf contends that the prosecution failed to disclose in advance of his trial the complainant's statement that she had dreamt the sequence of events incriminating him. I do not accept that the failure of the prosecution to disclose this information was a breach of its duty to disclose or that it casts doubt upon Bilal Skaf's guilt.

Accordingly the application is refused.

Convictions and Sentences

On 6 December 2000 Bilal Skaf was charged with a number of offences that arose out of a series of sexual assaults committed against a victim, Miss "C", on 30 August 2000 (referred to as Miss "T" on appeal: R v Chami, M. Skaf, Ghanem and B. Skaf [2004] NSWCCA 36).

His trial on those offences commenced before Finnane DCJ and a District Court jury on 29 April 2002 (the "2002 trial"). As I have said, he stood trial with his brother, Mohammed Skaf. He was also tried with Mahmoud Chami and Mohamed Ghanem. There were 17 counts on the indictment of which 8 counts concerned Bilal Skaf, namely:

Count 3: Detain for sexual advantage;

Count 4: Aggravated indecent assault in company;

Count 5: Aggravated act of indecency in company;

Count 6: Aggravated sexual intercourse without consent (in company);

Count 10: Aggravated sexual intercourse without consent (in company);

Count 12: Aggravated sexual intercourse without consent;

Count 16: Attempt to pervert the course of justice; and

Count 17: Incite an attempt to pervert the course of justice.

Bilal Skaf pleaded guilty to counts 16 and 17 and not guilty to the remainder that charged him. On 7 June 2002 the jury returned verdicts of guilty on those remaining counts except count 12 upon which they could not agree. His co-accused were also found guilty on various counts.

Bilal Skaf was subsequently sentenced by Finnane DCJ to a lengthy period of imprisonment for those 7 counts and other similar offences in respect of which he had been found guilty (noted in Bilal Skaf v R; Mohammed Skaf v R [2008] NSWCCA 303 at [9] and [84]). For reasons unconnected to this application those sentences were varied at different times on appeal (see R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; 60 NSWLR 86, R v Bilal Skaf [2005] NSWCCA 297, and Bilal Skaf v R; Mohammed Skaf v R [2008] NSWCCA 303). The end result is that for the offences committed on 30 August 2000 he is serving sentences aggregating 20 years with an effective non-parole period of 14 years dating from 12 February 2009 (R v Bilal Skaf [2005] NSWCCA 297 at [138]). The total effective sentence for all the offences he has been convicted of expires on 11 February 2037 with him being eligible for release on 11 February 2031(Bilal Skaf v R; Mohammed Skaf v R [2008] NSWCCA 303 at [105]).

Bilal Skaf appealed against his convictions for the offences concerning Miss C other than counts 16 and 17 to which he pleaded guilty. His co-offenders also appealed (R v Chami, M. Skaf, Ghanem, B. Skaf [2004] NSWCCA 36 (the "2004 Conviction Appeal")). The Court of Criminal Appeal dismissed the appeals of all the appellants, with the exception of Mohamed Ghanem. His conviction was quashed and a new trial was ordered (2004 Conviction Appeal at [343]).

On 9 September 2005 Bilal Skaf, Belal Hajeid and Mohamed Ghanem applied to the High Court for special leave to appeal against their convictions relating to similar offences committed against other individuals, and Bilal Skaf also sought special leave to appeal against his conviction for the offences against Miss C committed on 30 August 2000. The High Court refused the applications (Skaf v R; Hajeid v R; Ghanem v R [2005] HCATrans 744).

As noted, an order was made that Mohamed Ghanem be retried for his role in the assaults committed against Miss C on 30 August 2000. In 2004 evidence was given on a voir dire on an application by Mr Ghanem to exclude, inter alia, the evidence of Miss C (the "2004 Voir dire"). The trial judge rejected that application but upheld an application to exclude other evidence sought to be adduced by the Crown. A Crown appeal from that decision was upheld in 2005 (R v G [2005] NSWCCA 291).

Mr Ghanem was ultimately retried in April 2007 (the "2007 retrial"). The complainant did not give evidence. Instead the evidence she gave at the 2002 trial was read to the jury. Mr Ghanem was acquitted.

Statutory Context

Sections 78 and 79 of the Review Act provide:

"78 Applications to Supreme Court

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79 Consideration of applications

(1) After considering an application under section 78 or on its own motion:

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a) it appears that the matter:

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) The Supreme Court may defer consideration of an application under section 78 if:

(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."

The applicant seeks a reference, pursuant to s 79(1)(b) of the Review Act, to the Court of Criminal Appeal to deal with this matter as an appeal under the Criminal Appeal Act 1912. I note that my discretion pursuant to s 78 is broader than simply the power to refer and that pursuant to these provisions I have the power to refer the matter to the Court of Criminal Appeal (s 79(1)(b)); to direct that the matter be the subject of an inquiry (s 79(1)(a)); to defer the matter (s 79(3A)); or to refuse the application (s 79(3)) on the basis of grounds including, but not limited to those specified in s 79(3).

The processes undertaken to reach one of the above outcomes differs substantially from those applicable in judicial proceedings (see Application of Peter James Holland Under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 ("Holland") at [2] to [12] per Johnson J). I note three matters discussed by Johnson J in Holland.

First, my consideration of this application is an exercise of administrative, not judicial power (Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 to 50; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [124]). This process may be activated when the criminal justice system has "run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence" (Holland at [10]). Johnson J noted that s 78 is not intended to provide a convicted person with yet another avenue of appeal after the appeal process has been exhausted, nor an opportunity to run the trial again on paper (Holland at [9]).

Secondly, the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite view may be formed where the material submitted causes the person considering the matter "unease or a sense of disquiet" in allowing the conviction or sentence to stand (Holland at [6], citing Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which "as a matter of practical reality" gives rise to the sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]).

Thirdly, there is a degree of flexibility regarding the "materials" which I may consider and upon what basis I may consider them. In relation to this, Johnson J stated (in Holland at [11]):

"The nature of the jurisdiction under Pt 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal."

Consistent with this I have determined the matter on the papers. I have considered all the documents annexed to the application of Mr Skaf and to the submissions of the Attorney-General.

Further, I note that s 79(2) of the Review Act refers not only to a doubt or question about the convicted person's guilt but also "as to any part of the evidence in the case". It is possible for there to be a doubt or question about such evidence even if there is no doubt or question about the convicted person's guilt (Varley at 46 per Hope JA; Eastman [2003] HCA 28; 214 CLR 318 at [123] per Heydon J). The example given in Varley concerned the ordering of an inquiry to redress unjustified attacks on a particular Crown witness. However in this case I would not exercise the power conferred by s 79(1) to either order an inquiry or refer the matter to the Court of Criminal Appeal unless any question or doubt that might be raised about the evidence or part of it against Bilal Skaf was such as to give rise to "unease or [a] sense of disquiet" about his convictions.

The Crown Case

Before addressing the grounds put forward in Bilal Skaf's application it is necessary to describe the Crown case. The following summary is taken from the 2004 Conviction Appeal at [3] to [48] which was based upon the evidence given by Miss C at the 2002 trial. It conveniently identifies the particular conduct said to have constituted the charges on the indictment:

"3 The complainant boarded a train at Belmore, intending to go to Lidcombe. She was sitting reading when approached by a group of five young males. The Crown case was that these men were:

Mohammed Skaf, the appellant

H, a pseudonym for a person whose name has been suppressed

Tayyab Sheikh

Mohammed Sanoussi

Mahmoud Sanoussi

4 Mohammed Skaf was described by the complainant as wearing a yellow jumper and having a really big nose and curly short hair with blond streaks. He sat in front of the complainant and engaged her in friendly conversation. Having ascertained that she had tried marijuana he asked her if she wanted to smoke some with them. She agreed to do so and to continue with the men to Bankstown Station. She told them that her name was "Amanda", which was untrue.

5 During the train ride some of the males touched her suggestively. In Ms T's words, the man in the yellow jumper had "tried to touch me a few times... but I didn't really think that much of it... I remember him in particular saying that I had nice legs".

6 Closed circuit television at Bankstown Station provided video evidence corroborating the arrival of the group and assisting identification to some degree. The complainant is seen on the platform with five males, the male in the yellow jumper holding his arm around her as they walk off the platform in a group.

7 The complainant sent a mobile text message to her friend Leah Nightingale and told her to call her. When Leah rang back, the complainant made it sound as if she was talking to her sister, that their mother had been in an accident and that she had to go home. The complainant said that she was starting to feel nervous and that she wanted an excuse to go home without antagonising the men. The other males "had sort of gotten a bit more gropey, they were trying to touch me a lot more and I was starting to get a bit nervous about them" [reference omitted].

8 The male in the yellow jumper took Ms T's phone and started speaking to Leah. He told her "I'll have her home in ten minutes" and hung up on her. He then placed the phone down the front of his pants. The complainant asked for her phone back and was told "No. I'll give it back to you after we've smoken".

9 The complainant's friend Leah corroborated this evidence about the disguised phone call and the complainant's nervous or panicky state [reference omitted]. She said that she was told by the male speaker "Listen bitch, your sister will be home in ten to twenty minutes." He refused to let Leah speak to the complainant and hung up. When Leah phoned back the phone was switched off. By this time three of the five males had moved away. The complainant remained with the male in the yellow jumper (Mohammed Skaf) and a male with badly streaked hair. They walked her to the nearby Marion Street car park.

10 The male in the yellow jumper went into the toilet block for a couple of minutes. He came back out and said "You're up". The male with the streaked hair had been talking to the complainant in the meantime and he had asked her if she did threesomes: she told him "No, I don't do things like that".

11 The complainant followed the male in the yellow jumper into the toilet block. He took her mobile phone out of his pants, held it up in the air and said "You won't get your phone back until you fuck me". She replied "Fuck the phone, I'm going home" and she tried to get out. She pushed the door to get out, but did not realize that it opened the other way. She heard voices from the outside and assumed that the other males had been holding the door closed.

12 The male reached for her shoulders and she dodged him to get away and found herself further away from the door. She was now near the toilet. The male approached her and pushed her up against the tiled wall, turned her around and pulled down her skirt and underwear. This was the basis of Count 1 against Mohammed Skaf - detain for sexual advantage.

13 The male told her "I'm going to fuck you Leb style". He put on a condom (which had been purchased when he had entered a pink building housing a sex shop on the way between the station and the car park).

14 Mohammed Skaf stood behind her, pinning her up against the wall and penetrated his penis in her vagina. At the time she heard the other males outside. When he finished it seemed to the complainant that he was not allowed to get out of the cubicle without communicating (in Lebanese) with the men on the outside. This assault, in the company of others, was the subject of Count 2 against Mohammed Skaf - aggravated sexual intercourse without consent.

15 The complainant was thereafter subjected to a series of sexual assaults in the toilet from the males she had met on the train, with the exception of H. During this time she heard her mobile phone's ring tone. The male in the yellow jumper had earlier placed it back in his pocket [reference omitted].

16 The assaults in the toilet (after that involving Mohammed Skaf) first involved an incident in which two males entered the toilet block. The complainant was lifted down from the toilet seat by one of them, who pulled down her skirt and underwear, pushed her up against the wall and placed his finger into her vagina. He then wore a condom and placed his penis into her vagina. After this, the man alleged to be Mohammed Sanousi entered as the complainant was fixing herself up. She had fallen to her knees. He said "you're in the position to suck my dick" and he put his penis into her mouth. She tried to pull away. He grabbed her hair and moved her head around his penis all the way down her throat which made her gag. When this male left, the one with the "badly streaked hair" returned. He sat on the toilet, opened his legs and pulled down his pants. He grabbed the complainant and forced his penis into her mouth. She was still in a kneeling position.

17 Evidence was led that H, Tayyab Sheikh, Mohammed Sanoussi and Mahmoud Sanoussi had also been charged and were being dealt with in other proceedings.

18 The evidence of these other sexual assaults in the toilet was led without objection and was not the subject of any cross-examination. It was obviously relevant to the issue of consent as regards what followed, and debatably as regards what preceded it [reference omitted].

19 The complainant was left on her own inside the toilet. She cried. She then got dressed, washed herself and walked outside. A dark-skinned woman in her early thirties approached her and asked if she was OK. The woman asked if she had any money. Believing that the woman was offering help, the complainant gave her $20 expecting her to call a taxi. The woman told the complainant "You know this is a bad area, you should have known better". She put her arm around the complainant and led her to a nearby area where there were a group of males outside a black car. The complainant noticed the male with the large build (H) and a couple of males who had been with her earlier. Two of the males then left with the woman. Mohammed Skaf was also there. The complainant asked him where her phone was and he said that "his mate George had it and that he would come back with it in a few minutes". He left and did not return [reference omitted].

20 Thinking that she was safe, the complainant got into the black car containing two previously unencountered males and H. The complainant described it as a black two door hatchback that looked new. She thought she would be taken to the police. There was talk about retrieving her phone. H left the car and spoke to Mohammed Skaf, returning with the complainant's SIM card. He said that they could not get her phone back. As the black car drove off from the area, the complainant saw the male in the yellow jumper (Mohammed Skaf) and the male in the orange jumper (Mohammed Sanoussi) sitting in a hot food shop. The black car was driven from the Marion Street car park to Bankstown Trotting Club, stopping en route to buy food at McDonalds. It was near to dusk when they got to the Trotting Club.

21 H committed a further sexual assault on the complainant near a shed in the deserted car park. After this, the black car reappeared and its driver told the complainant that he would take her home. She trusted him and got into the front passenger seat. He then forced his finger into her vagina. Later he required her to climb into the back seat where he undressed her and had forced penile vaginal sex. After this another man who had been a passenger in the black car got into the back seat and had forced oral sex.

22 The complainant tried to get out of the car after she had fixed herself up. Someone held the door closed and told her "wait in here" [reference omitted].

23 The complainant then saw a red car drive into the car park of the Bankstown Trotting Club. There were four males in that car. The complainant had not seen them before. The driver and passenger from the black car went up to the males in the red car and they appeared to talk to each other. The driver of the black car returned and opened the passenger door to let the complainant out saying "You're going with these guys. They're going to take you home".

24 The complainant got into the red car believing what she had been told. She got into the middle of the back seat. It was the Crown case that the men in the red car were:

Mahmoud Chami (the driver and, for this the Crown relied mainly on Chami's admission in his ERISP of 13 October 2000). He was described by the complainant as having short, cropped hair, bushy eyebrows, bulging eyes and he was wearing a big black jacket.

Mohamed Ghanem (the front passenger, and for this the Crown relied on the complainant's subsequent identification of Ghanem from a photoboard). He was described by the complainant as having his hair in a pony tail which had curls and was blondish at the ends and he was wearing a Hawaiian shirt and bone coloured cargo pants.

Bilal Skaf (the back passenger, sitting to the left of the complainant, and for this the Crown relied on the complainant's subsequent identification of Bilal Skaf from a photoboard). He was described by the complainant as calling himself "Sam", with dark eyes, short dark hair, bushy eyebrows and he was wearing a grey Adidas jumper. The complainant said that she remembered "something about gold, a gold necklace or gold" [reference omitted]. He was often referred to as "Adidas Sam" in later evidence.

A fourth unidentified male (the back passenger, sitting to the right of the complainant). He was described by the complainant as having short curly hair with blonde or gold on the tips and wearing a grey Nike jumper. He also called himself Sam.

25 The red car was driven to a townhouse complex where it stopped for a few minutes while the driver got out and entered a house. The house was subsequently identified by the complainant as being opposite Chami's house. Count 3 charged Chami, Ghanem and Bilal Skaf with detaining for sexual advantage. This count spanned the luring and detaining of the complainant in the red car in the circumstances set out below.

26 As the complainant was being driven in the red car the two males sitting on either side of her in the back seat started to touch her. They touched her upper thighs and legs and her left breast. Count 4 charged Bilal Skaf with aggravated indecent assault in relation to the touching of her breasts. They also grabbed her hands and put them around each of their exposed penises and moved her hands up and down. They prevented her from pulling her hands away. Count 5 charged Bilal Skaf with an aggravated act of indecency in relation to this incident.

27 The two Sams then started pulling up her skirt and took turns in putting their fingers into her vagina. Afterwards they both did it together at the same time. Count 6 charged Bilal Skaf with aggravated sexual intercourse without consent.

28 The complainant was crying during these assaults. She was scared that the men would rape her and thought that they would take her home if she did what they wanted. The complainant said that the front passenger was turning around and watching the activities of the two men beside her.

29 The car was then driven to a service station not far from the townhouse complex. The front passenger (Ghanem, on the Crown case) got out. The complainant attempted to climb out of the car from the front seat. The driver (Chami) grabbed her left shoulder and pushed her down. He opened the glove box and "took a weapon and held it to my head". The complainant felt "cold metal" and thought it was a gun, though she did not see it. The driver told her "don't move bitch or you're dead". He then put the weapon back and the front passenger returned to the red car.

30 The complainant was then driven to an industrial estate in Chullora. Everybody except the driver got out of the car. The two males who had been sitting in the back seat held the doors so the complainant could not get out and the driver got into the back seat. It was dark by this time.

31 The driver of the red car unzipped his pants when he sat next to the complainant in the back seat. She said "You're not going to do it too?" and he said "Fuck me". He put a condom on his penis, pushed the complainant on to her back and pulled up her skirt. He pulled down her underwear, spread her legs open and had penile vaginal intercourse with her. She was crying at the time. Count 7 charged Chami with aggravated sexual intercourse without consent. During this incident the complainant recalled that a blanket was placed over the car.

32 The driver got out and the male with the pony tail who had been the front passenger came inside the red car. The male said "he wanted a little bit of head before he fucked" and he pulled down her shoulders so that she was almost on all fours. He grabbed her hair and forced her face towards his penis. She tried not to let it go in her mouth and he pulled her even harder and put his penis into her mouth. She bit down on it and he slapped her across the top of her head. He grabbed her hair and forced his penis further down her throat and she started to gag. Count 8 charged Ghanem with aggravated sexual intercourse without consent.

33 This male then pushed the complainant's head back. She sat back up in a kneeling position. He made her sit on him and he had vaginal sex. She was crying at the time and she believed that a condom was used. Count 9 charged Ghanem with aggravated sexual intercourse without consent. The complainant recalled looking at this male's face, and she remembered that he "was actually good looking" [reference omitted].

34 When that male left the car the unidentified "Sam" wearing the grey Nike jumper came inside and forced his penis into her mouth.

35 The male called "Sam" in the grey Adidas jumper (Bilal Skaf, on the Crown case) then came into the car. The complainant was crying and he pushed her legs open, straddled her and placed his penis into her vagina. Count 10 charged Bilal Skaf with aggravated sexual intercourse without consent.

36 The male with the pony tail came back via the left side of the car. The complainant was sitting in the middle, crying. He grabbed her shoulders and forced her onto all fours. He unzipped his pants and forced his penis into her mouth. Count 11 charged Ghanem with aggravated sexual intercourse without consent.

37 Not long afterwards, this male yelled out "How about a threesome" and the male called "Sam" in the grey Adidas jumper reentered the car and put his penis into the complainant's anus while she was on all fours. At the same time the male with the pony tail had his penis in her mouth. Count 12 charged Bilal Skaf with aggravated sexual intercourse without consent in relation to this incident. [Upon this count the jury did not agree upon a verdict]

38 The Crown originally indicted Ghanem on a further count (Count 13) of aggravated sexual intercourse without consent in respect of the incident referred to in the previous paragraph. Since however the complainant explained in her evidence that when the male with the pony tail had yelled out "how about a threesome" his penis had remained in her mouth throughout that time, the judge later directed a verdict by direction on Count 13 because the offence in Count 11 had not ceased.

39 The complainant said that throughout the sexual assaults in the red car she heard mobile phones ringing and people talking on the phone [reference omitted]. Around this time she saw a black car arrive. She said it was "a black car, similar to the first", but was not sure whether it was the same car as the one previously involved [reference omitted]. There were three males in it along with the male in the yellow jumper who had first met the complainant on the train and who had also sexually assaulted her in the toilet block (Mohammed Skaf, on the Crown case). She heard the ring tone of her phone, which was a particular song by Eminem [reference omitted]. This evidence was used to corroborate the Crown case that Mohammed Skaf arrived at the industrial complex in the black car. (He admitted his presence at the Marion Street toilet block, but disputed that he was at the industrial complex.)

40 The complainant got out of the red car, which was then

driven away towards the driveway of the industrial estate where it was hosed down. The black car was parked where the red car had previously been. The complainant attempted to leave and started walking past the red car. She was hosed down by someone from the red car and ended up soaking wet [reference omitted]. She started crying and the males laughed. The complainant managed to reach the street but was caught by one of the "new people" and was led back to the industrial estate. By the time she had been walked back she noticed that the red car and its occupants were gone.

41 The male in the yellow jumper came up to her, put his arm around her and led her away from the remaining group of males. He said "I have to talk to you" and she was taken to an area where there was a pile of sacks. Count 14 charged Mohammed Skaf with detain for advantage.

42 This male told the complainant to "Suck my dick again bitch", and she did as she was told because she was scared of getting hurt. She was still crying. (Count 15 charged Mohammed Skaf with aggravated sexual intercourse without consent.) (The complainant volunteered that she had not had oral sex with the male in the yellow jumper at the toilet block [reference omitted] but she adhered to the evidence that the same man was involved in the two separate assaults. This was material relied upon by Mohammed Skaf to challenge the complainant's identification of him as the male in the yellow jumper at the industrial estate.)

43 After this, the complainant grabbed his penis hard and told him to give her back her phone because she wanted to call someone to get her out of there [reference omitted].He called out, "Get the gun, get the gun". Another male (one of the new people not recognized by the complainant) said "Get her phone back".

44 There were other sexual assaults by occupants of the black car.

45 The complainant was told to get back into the black car, which had been driven over to the area with the sacks. She complied. Just before the car pulled out of the driveway, the person in the yellow jumper came up to the driver's side window and passed her mobile through to the person who had just assaulted her. He was seated next to her in the back of the car. He handed the phone to her and told her to put her SIM card in it, which she did. He asked for her phone number because he was going to ring her the next day. He told her to give him the right phone number because he was going to try it there and then to see if her phone rang. She did as she required and the number was successfully tested as she was driven to Lidcombe station [reference omitted]. Mohammed Skaf's mobile phone was found to contain the complainant's number listed in it, showing her name as "Amanda", the name she had given on the train.

46 The complainant was then driven to Lidcombe station and was told not to call the police. After being left she started to receive calls on her mobile. One was from her friend Leah, who came to pick her up with Leah's mother. It was now between 10 and 11pm.

47 Before she was picked up she heard her mobile phone ring several times. She "knew it was them" [reference omitted] and didn't answer, except for one call, which came from H to whom she had given her number earlier in the evening [reference omitted]. After she was picked up, Leah answered the calls, some of whom were men asking to talk to her and Leah was heard telling them abusively not to contact her.

48 The complainant did not go to the police until the next day because she was too distraught." (emphasis in original)

To this summary it should be noted that in November 2000 the police were investigating Mohammed Skaf in relation to these incidents. Around this time, Bilal Skaf provided the police with a statement that he, Bilal Skaf, had been home all day on 30 August 2000 and that his brother Mohammed had been home for most of the evening in question including between 4pm and 5pm and around 8.15pm (2004 Conviction Appeal at [72]). Count 16 charged Bilal Skaf with perverting the course of justice by making this (false) statement and count 17 charged him with the same offence for inciting their cousin, Susan Bakry, to make a false statement corroborating Bilal Skaf's alibi for his brother. As I have stated Bilal Skaf pleaded guilty to both counts.

At the 2002 trial Mr Ghanem's case was that he had been wrongly identified and had an alibi. He gave evidence to that effect. Mahmoud Chami's case was that he only had oral and not vaginal sexual intercourse with Miss C and had a mistaken belief that she consented. He did not give evidence. Mohammed Skaf asserted that he had consensual sex with Miss C in the toilet block in the Marion Street carpark and denied that he was the man in the "yellow jumper" who assaulted her at the Chullora industrial estate (2004 Conviction Appeal at [52] and [55]). I describe the Crown case against him and the evidence supporting it in more detail in the Mohammed Skaf Application at [11] to [27].

Bilal Skaf did not give evidence at the 2002 trial. He contended that he had been wrongly identified by Miss C (2004 Conviction Appeal at [54]). It is necessary to describe further aspects of the Crown case against him. The Court of Criminal Appeal stated that there were four "major items of evidence" in the Crown case against him (2004 Conviction Appeal at [95] to [99]).

First, there was the evidence of Miss C which is in part summarised above and which included a "photoboard" identification of Bilal Skaf. The investigating police compiled a number of photoboards, each with fifteen photographs of young men of "Lebanese" appearance. On 15 November 2000 Miss C identified Bilal Skaf from one of these boards (2004 Conviction Appeal at [62]). Although this evidence was objected to at the trial none of his grounds of appeal attacked its admission. Instead he complained about the reliability of the identification of him by Miss C under the rubric of contending that his conviction was unreasonable. The Court of Criminal Appeal rejected this complaint stating (at [341] to [342]):

"341 ... The jury had the video-recording of the whole process. The complainant looked at the photoboard and said 'Number 15 sort of looks familiar' in relation to the person she called 'Sam 2'. Detective Porta asked her how sure she was and she said 'I'm not 100% sure ... but he looks a hell of a lot like the person I identified as Sam 2' [reference omitted]. His eyebrows stood out to her. In her evidence she explained that she was not 100% sure because it was not a very good photo [reference omitted].

342 There was also the additional evidence implicating Bilal Skaf to which we have already drawn attention."

Second, the Crown relied on the false statement of Bilal Skaf made to the police about his being home all day on 30 August 2000 and which was the subject of count 16 as evidence of a consciousness of guilt on his part. Over objection the trial judge instructed the jury to that effect. The Court of Criminal Appeal dismissed Bilal Skaf's challenge to the trial judge's ruling (2004 Conviction Appeal at [304] to [314]).

Third, there was evidence that Bilal Skaf "used his phone from the area of Chullora industrial estate at the critical time (shortly after 9pm)" (2004 Conviction Appeal at [98]). This was described in the Crown case statement which was extracted by the Court of Criminal Appeal in the 2004 Conviction Appeal at [117] as follows:

"In respect of 0414 076 468 (the mobile phone of Bilal Skaf):

A call was made from within the 21168 sector at 6:44pm (to "H" on 0404 227 642).

A call was made to "H" from another sector (28633) at 6:59pm. This was from the Centenary Drive cell.

A call was made from within the 21163 sector at 8:33pm (to Vodafone), though in cross-examination Simmons said that the network may have taken this call on the 900 frequency even though the caller was within the 21168 sector because the duration of the call was short and the network may not have had time to react and place the call on the 1800 frequency.

At 9:02pm there was a text message sent to Ali Skaf on 0415 889 122.

Calls were made from within the 21168 sector at 9:02pm and 9:09pm (to Ali Skaf on 0415 889 122) and at 9:58pm and at 10:37pm (to Nina on 0404 076 763, who was listed in his phone as his girlfriend).

At 9:24pm there was a call to 9703 1468 (the house of Bilal and Mohammed Skaf) from the Chullora cell. This was in sector 22752, which was the same sector in which Ghanem and Chami resided. The Crown relied on this to show that he was involved in dropping his co-offenders home.

Calls were made from within the 21163 sector at 10:17pm and 10:44pm (to Mohammed Skaf on 0415 681 064) and at 10:45pm (to Nina on 0404 076 763).

..."

Sector 21168 served calls made to or from the Chullora industrial complex. Sector 21163 served calls made to or from an area that included Valentia street which was the location of the home of Bilal and Mohammed Skaf (2004 Conviction Appeal at [115] to [116]).

Thus calls were made from Bilal Skaf's telephone from within the mobile phone cell that serviced the Chullora industrial complex at at least 9.02pm, 9.09pm, 9.58pm and 10.37pm. The above description suggests that a similar call was also made at 9.24pm, although it is not clear.

Fourth, there were intercepts of incriminating telephone calls made by Bilal Skaf in the period October to November 2000 (2004 Conviction Appeal at [99]). Two conversations involving Bilal Skaf are particularly telling. In one of them Bilal Skaf issues instructions to Tahir Sheikh (the brother of Tayyab Sheikh) as to what to tell the police as to his brother's movements on that day, but adds "That's all you have to remember, don't tell 'em where I was, just watch what you say" [emphasis added].

In another conversation on the same day with Susan Bakry, Bilal Skaf tells her what to say to the police. She said to him "they're gunna fuck you hard" and he replied "[They can't catch me] no way [they can catch me]" (bracketed words in Arabic; emphasis added).

As I will explain these third and fourth aspects of the case against Bilal Skaf are critical to the outcome of this application. The recorded conversations constitute powerful admissions that Bilal Skaf was, in some manner, involved in the sexual assault on Miss C. In combination with the third matter this material is very strong evidence that Bilal Skaf was at one of the scenes where sexual assaults were committed against Miss C, namely the Chullora industrial estate, at the time she said that they were committed. Thus, at the very least, it powerfully corroborated Miss C's evidence to the extent that she identified Bilal Skaf as one of the perpetrators and the location of the assaults upon her by him and others.

The First and Second Statements

Miss C made two significant statements to the police concerning her recollections of the events of 30 August 2000, the first dated 1 September 2000 (the "first statement") and the second dated 21 September 2000 (the "second statement"). Her evidence at the trial which was summarised by the Court of Criminal Appeal in the 2004 Conviction Appeal reflected the contents of the second statement.

There were a number of significant differences between the versions of events described in the first and second statements. One change was that in the second statement Miss C said that she accompanied some of the offenders to the Marion Street carpark toilet because she hoped to smoke marijuana with them, whereas in the first statement she said that she did so because they had taken her telephone. She stated that she did not tell the police about this initially because she thought that she might "get in trouble". Other changes were of much greater significance. I will note the two most important for the purpose of this application.

First, the sequence of events and locations at which she was sexually assaulted changed between the first and second statement. Consistent with her evidence at the 2002 trial, in the second statement Miss C described being accosted on the train by a number of offenders, going to the toilet block at the Marion Street carpark where she was sexually assaulted by them, and then leaving that location in a "black car" and being taken to the Bankstown trotting club where she was again assaulted. She then describes being transferred to a "red car" with different offenders which left the trotting club, and being assaulted in the back of that car while it drove to a townhouse complex, a service station and then to an industrial estate. At the industrial estate she was again sexually assaulted before being driven in a black car to Lidcombe train station. She attached a hand-drawn detailed map of the industrial estate. In her evidence at the 2002 trial she describes locating the industrial complex with the assistance of the police.

In the first statement Miss C also described being accosted on the train and then taken to the Marion Street carpark toilet where she was sexually assaulted by a number of offenders. However she stated that she was then taken to a service station and the Bankstown trotting club in a red car and sexually assaulted. She stated that she was then driven back to the Marion Street carpark toilet and left there before being driven in a black car to Lidcombe train station.

Second, there were differences between the first and second statements as to the number and description of the offenders. Thus in her second statement she said that she was accosted by five males on the train but in her first statement she said that she was accosted by six males. Most significantly the second statement contained descriptions of the occupants of the red car that were completely different to the first statement. In her second statement she stated that there were four such occupants which included one person said to be Bilal Skaf. He was referred to by her as "Sam wearing an Adidas jumper". As I have noted she later identified Bilal Skaf from a series of photographs as "Adidas Sam".

Thus the person said to be Bilal Skaf was not referred to in the first statement. The conduct said to constitute counts 4, 5 and 6 of the indictment, being the sexual assaults in the red car while it was being driven from the trotting club to the Chullora Industrial estate was not referred to in the first statement. To the extent that counts 3, 10 and 12 had any counterparts in the first statement they involved a different location and different perpetrator(s).

In her second statement Miss C described the reasons for the difference between the two statements as follows:

"When I made [the first statement] I was suffering from stress and fatigue. I was still shaken from the attack. After having time to recover, I realise that I have been confused when describing some of the events. Since providing the statement, the incident has become a lot clearer in my mind, and I can now provide an accurate account of what occurred that evening."

At the 2002 trial Miss C gave evidence over at least 7 days. She was asked about the reason for the differences between the two statements. Under cross-examination by Mohammed Skaf's counsel she stated:

"On 1 September, the statement I made then, I made to the best of what I could remember at the time. I later had what I call flashbacks, at night, that had put the pieces together and made me realise that everything was out of sequence and that some things were missing from that statement. I called the police and I told them what I now - what I remembered properly, what had actually occurred that night." (emphasis added)

Later, under cross-examination by Bilal Skaf's counsel she gave the following evidence:

"A ... when I had flash-backs I did recall things I had entirely forgotten and other things out of sequence and a McDonalds as well.

Q When you talk about flash-backs when did they occur?

A They occur when I am asleep, sir.

Q When you were asleep you had a flash-back?

A Yes, I wake up with a nightmare, sir.

Q: You wake up in the night and you were dreaming about something, is that right?

A.Sir, it's a flash-back, a relieving [sic] of what occurred.

...

Q Did [you] stay awake for a lengthy period of time and focus on that flash-back?

A Yes, I did sir.

...

Q How long after the statement of 1 September was it that you had your first flash-back?

A I can't exactly remember sir. I remember it was a weekend because I wasn't at home at the time, I was staying at a friend's place.

...

Q How many other flash-backs have you had?

A I think I had since sir?

Q In this period before you made your second statement?

A I had one that night and my mother called the police that day and I can't remember exactly the date, sir, so bear with me. I did have a few more flash-backs before I actually made the second statement. It reaffirmed what I already knew.

Q What was that first flash-back about?

A The first flash-back was the sequence of events from the time that I got off that train at Bankstown Station [to] the time that I was dropped off at Lidcombe Station.

Q You say that this was something that was in the nature of nightmare, is that right?

A Well, it was a nightmare sir, because I was relieving [sic] what I had gone through.

Q And the events, and the sequence of events that took place that night were, on your evidence, over a considerable number of hours?

A Yes, they were, sir.

Q And is it your evidence that the flash-back itself contained all of the sequence of events that took place?

A Yes, it did, sir.

Q So, it wasn't just a momentary waking up with some particular sequence of events, but the whole of [the] sequence of events, is that your evidence?

A Yes, that's correct, sir.

...

Q Did you go to your statement to see whether or not at the time when you woke up whether your statement had recorded some of the features of that initial flash-back?

A Sir, I didn't look at my statement after I had a flash-back. In my opinion the first statement was worthless.

...

Q You said that the first statement would be almost useless, is that right?

A Yes sir, because all the sequence of events are out of place and there are people described at places were [sic] they weren't, they were later on, and things like that, just out of sequence.

...

Q What did concern, what was the features of that flash-back [sic]?

A They were all exactly the same. Just like a video tape from my point of view from start to finish. I relived every single assault."

The Court of Criminal Appeal noted that at the 2002 trial Miss C was cross-examined vigorously on the differences between the two statements and her explanation for them (2004 Conviction Appeal at [61]). However as I will next explain, at the 2007 retrial of Mr Ghanem psychiatric evidence was led concerning the description given by Miss C in her evidence extracted above as to how she came to remember the events described in the second statement.

The psychiatric evidence from the 2007 retrial of Mr Ghanem

As I have already stated the principal ground of Bilal Skaf's application concerns the impact of psychiatric evidence concerning the process of recollection described by Miss C. This psychiatric evidence only became available after the 2004 Conviction Appeal.

No application was made during the 2002 trial for an adjournment (or a mistrial) to enable psychiatric evidence to be obtained addressing the process of recollection that Miss C described that led to her second statement. However after the Court of Criminal Appeal ordered a retrial for Mr Ghanem he retained a psychiatrist, Dr Roberts, to comment on the reliability of Miss C's account.

I have been provided with reports from Dr Roberts, one dated 23 August 2004 and the other dated 30 August 2004. I have also been provided with the transcript of his evidence given on the 2004 voire dire and the 2007 retrial of Mr Ghanem.

In his report of 23 August 2004 Dr Roberts refers to both Miss C's statements and aspects of the evidence she gave during the 2002 trial, especially the extracts set out above at [43] to [44]. He noted that Miss C's description of flashbacks was incorrect in that a "flashback" is the production of "intense psychological and physiological reactivity to cues that are reminders of [events]" and occurs in "full consciousness", whereas nightmares are defined as "anxiety provoking dreams that occur during REM sleep". Dr Roberts did not accept the accuracy of her description of having repetitive dreams that were occurring in a "video like fashion". He stated that the nature of the content of dreams is "largely symbolic" and is not reliable "in relation to matters of fact", although it may be reliable as a "symbolic [expression] of concerns and fears that exist at a particular point in time".

Dr Roberts concluded:

"... I do not consider that it can be stated that material recovered as a result of what had been dreamt about could be deemed to be factually accurate, unless independent corroboration of events dreamt about could be adduced.

...

I do not consider that it is possible to state that material recovered as a result of dreams could be deemed to be true and accurate and if such is the only basis on which recollection is said to have occurred, while the evidence given may be accurate, there is no measure of assuring that such is the case." (emphasis added)

In his report of 30 August 2004 Dr Roberts stated that Miss C would have had to sleep for a minimum of 20 hours up to a maximum of 30 hours continuously to enable her to dream the entire sequence of events. He concluded that her evidence was "medically, physiologically impossible" and that what she asserted was the process by which she came to recall the events in the second statement could not have occurred.

Dr Roberts' oral evidence on the 2004 voir dire and at the 2007 trial was consistent with his reports. It is encapsulated by the following answer:

"I would say that in the absence of corroborative evidence, that any material that is based solely on recollections that [are recovered] as a result of dreams and nightmares in my view cannot be relied upon." (emphasis added)

At this stage I note two points about Dr Roberts' conclusions. First, Dr Roberts does not exclude the accuracy of a recollection derived from dreams but instead cautions about reliance on it in the absence of corroboration of the events so recalled. Dr Roberts did not expand upon what he meant by "corroboration" in this context.

Second, Dr Roberts' conclusion is only concerned with memory for which the "only basis" for the recollection is dreams as opposed to, for example, the dreams being a trigger upon which other memory processes may then act. He appears to treat the situation as one whereby Miss C dreamt a series of events and her evidence simply constitutes her recounting the contents of her dreams and no more. This appears to involve a very literal reading of Miss C's evidence and makes no allowance for any inaccuracy or even imprecision in her ability to describe the mental processes by which she says that she came to a more accurate recollection of what occurred. This is illustrated by Dr Roberts' opinion that it was "medically, physiologically impossible" for Miss C to have slept long enough to have dreamt the entire sequence. If that opinion is accepted then from Bilal Skaf's perspective it proves too much in that it casts doubt on the very assumption that Dr Roberts is proceeding upon, namely that her second statement was based exclusively on her dreams.

For the purposes of the voir dire and in response to Dr Roberts' report, the Crown retained Associate Professor Quadrio, a consultant psychiatrist. I was provided with a report from her dated 30 August 2004 (and another report dated 9 April 2007). Associate Professor Quadrio interviewed Miss C on 25 August 2004. Miss C told Associate Professor Quadrio that she had vivid dreams recalling the events of the assaults but also described having daytime "flashes" which are more "like a snapshot rather than a video" of the events. Associate Professor Quadrio considered that "[t]o a large extent the process of Miss C remembering all the details of the assault over the following two to three weeks represents a normal process of recall". In response to Dr Roberts she cited research indicating that that survivors of trauma including sexual assault may dream the event "almost literally a few times and then gradually other elements are included as the event becomes woven into the rest of the person's life".

Associate Professor Quadrio gave evidence on the 2004 voir dire. Associate Professor Quadrio explained that the people subject to trauma quite commonly have vivid dreams concerning their experiences which are quite different to the dreams they normally experience:

"But flashbacks and reliving dreams are very common in trauma ... I would say that it is most likely that she has had a typical dream in a traumatic state which has actually been a vivid visual imagery of the trauma. And ... that is why she doesn't call it a dream, she ... calls [it] a dream flashback because [she is] aware qualitatively this is not like a dream she has had before. ... And her awareness, there is something particularly realistic about this is what gives [her] a sense this is more than just a dream. And she continues in her waking state having this imagery which is her visual recollection, if you like, of the trauma."

Associate Professor Quadrio cautioned about taking Miss C's description of the dream being like watching a video literally as Dr Roberts appears to have done:

"I think that, as is well documented, that memories [don't] function like a videotape although people will often say, especially if they have a very vivid dream, it is a very common sense expression for people to say, 'It was just like watching a video'. Usually what they mean by that is the detail, the vivid authenticity of it strikes them like a video."

Associate Professor Qaudrio's assessment was that notwithstanding Miss C's description of having a video-like dream or nightmare in fact what had occurred was a "gradual process of recall" as her state of shock began to subside. Thus she did not accept that Miss C's recollection was based exclusively or even wholly on a dream or nightmare:

"... I don't know [that it is] fair to say [that] the genesis of [Miss C's] memories are in her nightmares. She obviously has a tremendous amount of memory, memory of the traumatic assaults themselves. But there are problems with time sequence which is very typical of trauma and not all of the details are in her mind immediately. I would think that if one accepts that this is visual imagery of the trauma that it is by her becoming aware of those visual images that she recalls the further details, rather than the memory of the trauma ..."

Associate Professor Quadrio's report from 2007 is to similar effect.

Associate Professor Quadrio did not give evidence during the 2007 retrial. However, at the 2007 trial the Crown called a Professor of Psychiatry from the University of New South Wales, Professor Bryant. He had prepared a report in 2000 addressing the effect on memory of traumatic events generally. He stated that it was very common after severe trauma for people to confuse the sequence of events "especially in [the] acute phase in the few weeks after the assault" and then as "time progresses" the sequence becomes "more coherent and the person starts to understand the sequence better". He also agreed (with Dr Roberts) that dreams were not an accurate source of recall and that material recovered from dreams could not be considered factually accurate unless corroborated.

Consideration - doubt about guilt

The principal contention made on behalf of Bilal Skaf is that the expert evidence of Dr Roberts, which was explored in Mr Ghanem's retrial but not in his, is such as to raise a question as to his guilt. The Crown's response which I accept is that there was more than sufficient "corroboration" of the events depicted in the second statement to remove any concern that might otherwise be raised by Dr Roberts' evidence.

Although a number of items of evidence were relied on by the Crown, I consider that the significant aspects are those which I have referred to at [29] to [35] above. In my view they overwhelmingly demonstrate the presence of Bilal Skaf at the Chullora industrial estate at the relevant time and at least some form of involvement on his part in the sexual assaults committed against Miss C. Bilal and Mohammed Skaf's phones were in use in the area of the Chullora estate at that time. The intercepted telephone calls are clearly incriminating.

Evidence of the commission of sexual assaults at an industrial estate first appeared in the second statement along with the existence of the person known as "Adidas Sam". Taking Miss C's evidence at its most literal these facts are said by Bilal Skaf to be the sole product of a dream or nightmare. Miss C later identified Bilal Skaf as "Adidas Sam". If her recollection, said to be based solely on a dream or a nightmare, is as unreliable as suggested then it could only be a fantastic coincidence that she could identify a person whose phone was in use at a nearby industrial estate on that very night at the relevant time, and who by his own admission played some role in the assaults committed upon her ("no way they can catch me"). The better explanation is that it is not a coincidence but that, after a passage of time following a traumatic event, her recollection however derived became generally accurate.

In the Mohammed Skaf application I identify a number of other aspects of Miss C's evidence incriminating him that only emerged in the second statement but which were strongly corroborated by independent evidence (Mohammed Skaf Application at [21] to [27]). This analysis demonstrates that there is further corroborative evidence of so much of Miss C's evidence as is said to have been derived from her "dreams".

In his submissions in reply Bilal Skaf sought to respond to this point as follows:

"The submissions of [the Attorney-General] focus on what is described as strong circumstantial and corroborative evidence against the applicant. Care must be taken with such a submission. ...[T]he case against the applicant was dependent on the evidence of the complainant. No amount of circumstantial evidence of the type relied upon by the respondent is capable of establishing the actual commission of particular offences."

I take the reference in this submission to the "actual commission of particular offences" as referring to the precise details of the particular counts in the indictment. However this ignores the context in which this inquiry into the existence of "corroborative" evidence has arisen, namely the concerns raised by Dr Roberts' evidence. Dr Roberts did not elaborate upon the extent of the corroboration that he considered was necessary before a dream could be considered "reliable". However there is nothing to suggest that he was referring to corroboration in any technical sense much less as the kind that required independent evidence confirming all the minutia of the sexual assaults committed upon Miss C. In the second statement Miss C identified a new location at which she was assaulted and a new offender in the form of "Adidas Sam" (and others). As I have explained there is very strong independent evidence confirming both matters.

In any event I accept Associate Professor Quadrio's analysis of the process by which Miss C in fact came to recall the events depicted in the second statement. In his submissions in reply Bilal Skaf contends that there was no issue between the parties that Miss C's second statement was "based on her dreams". If this is meant to suggest that it is common ground that Miss C's evidence was solely or exclusively based on her dreams then it is incorrect. The footnote to this submission cross-references an extract from the Attorney-General's submissions referring to Associate Professor Quadrio's evidence. As I have explained Associate Professor Quadrio did not accept that Miss C's evidence was solely based on dreams and nightmares but instead referred to them as part of a more complex but not unusual process by which trauma sufferers recall events.

I have referred in [50] and [52] above to the opinion of Dr Roberts as being predicated on Miss C's dreams or nightmares being the "only basis on which recollection is said to have occurred". Properly analysed this was an assumption upon which Dr Roberts proceeded which appears to have been based upon a literal reading of Miss C's evidence. Dr Roberts did not confer with Miss C. Nor did he revisit this assumption either upon receiving Associate Professor Quadrio's reports or any transcript of her evidence. As I have stated Dr Roberts' own opinion that it was "medically, physiologically impossible" for Miss C to have slept long enough to have dreamt the entire sequence tended to invalidate his assumption that the version of events in her second statement was based exclusively on her dreams. Instead, as suggested by Associate Professor Quadrio, Dr Roberts' observation in his second report demonstrates the need for caution in treating Miss C's description of her process of recall in her evidence too literally. It either suggests that her revised recollection arose from the type of process referred to by Associate Professor Quadrio, or that Miss C completely fabricated either her evidence or her explanation for the process that led to her reconsidering her evidence. No party at any trial suggested the latter to be the case.

The submissions on behalf of Bilal Skaf sought to draw support from cases suggesting that evidence induced by hypnosis or treatments such as EMDR (eye movement desensitisation and reprocessing) should be treated as prima facie inadmissible or otherwise treated with caution (eg R v Tillott (1995) 38 NSWLR 1 at 39 to 40 per Abadee J; R v McFelin [1985] 2 NZLR 750 and R v Jenkyns (1993) 32 NSWLR 712 at 714 per Hunt CJ at CL). Those cases involved the application of a form of therapy to induce or isolate memories. This case involves the victim of trauma obtaining a fuller recollection of the events in the weeks after the incident without the intervention of any form of treatment. The cases relied on do not assist. Reliance was also placed on various authorities dealing with so called "revived memory", including R v Eishauer (1997) 96 A Crim R 489 in which Sperling and Smart JJ (Simpson J dissenting) overturned a conviction based on a memory that was forgotten but revived after eight years. None of the cases referred to establish any general principle of assistance in this matter. They generally deal with memories of (alleged) entire incidents which are long suppressed and then revived. They are far removed from the facts of this case.

It was not expressly submitted on behalf of Bilal Skaf that the acquittal of Mr Ghanem at his retrial which had the benefit of Dr Roberts' evidence supported his application. However for the sake of completeness I note that the acquittal of Mr Ghanem is explicable on a number of bases that do not cast doubt on Bilal Skaf's guilt. I note two matters. First, as I have stated, at the 2007 retrial Miss C did not give oral evidence and instead the jury were read the transcript of her evidence from the 2002 trial. Thus the jury were deprived of the ability to consider Dr Roberts' analysis in light of their assessment of Miss C as a witness. Second, there was significantly less independent evidence pointing to the involvement of Mr Ghanem in the sexual assaults upon Miss C than there was against Bilal Skaf and Mohammed Skaf (see 2004 Conviction Appeal at [87] to [92]). There were no incriminating telephone calls. There were only limited records of his phone being used and none of those records placed him in the area of the Chullora industrial estate (2004 Conviction Appeal at [117]).

Dr Roberts' evidence does not cause me to have any sense of disquiet or unease about Bilal Skaf's guilt, nor does it give rise to a doubt or unresolved question about the evidence demonstrating his guilt.

Consideration - Jury Directions

Bilal Skaf accepts that the trial judge made a number of directions which drew attention to the difficulties with Miss C's evidence including her inconsistent versions of events both to friends and the police including the first and second statement. The trial judge also gave the jury the standard directions concerning identification evidence.

However Bilal Skaf complains that no specific warning was given in respect of her process of recollecting the events described in the second statement and that no direction was given to the jury in respect of the "dangers of relying upon the evidence of the complaint that she stated was derived from memories based on dreams or flashbacks".

I have described the evidence that Miss C gave at the 2002 trial concerning this at [43] to [44]. No direction of the kind now contended for was sought at the trial. No complaint was made about it on appeal. The Court of Criminal Appeal referred to this aspect of Miss C's evidence and the changes between the first and second statements and noted that she was cross-examined "vigorously" (2004 Conviction Appeal at [259]).

Bilal Skaf's response to the absence of any request for such a direction is that the necessity for the direction only arose once Dr Roberts' evidence was available. Presumably it is said that, in the absence of having that evidence, his Counsel could not have appreciated the significance of the evidence given by Miss C.

For the reasons next set out I do not consider that there was any relevant breach of an obligation to disclose by either the prosecution or the police prior to the 2002 trial in relation to any matter concerning Miss C's process of recollection. Thus there was no failure of process prior to the 2002 trial which resulted in Bilal Skaf being denied the ability to obtain expert evidence of the kind later given by Dr Roberts. Further, even if Dr Roberts' evidence was available at the 2002 trial I do not consider that any direction to the effect contended for would have been required to have been given by the trial judge. At most the trial judge would have simply summarised the competing evidence of the experts and left it to the jury to determine.

The suggested direction was not sought and I do not consider that it was necessary. Its absence does not cause me to have any sense of unease or disquiet concerning Bilal Skaf's conviction or guilt.

Consideration - Failure to Disclose

Bilal Skaf also alleges that there was a breach of the prosecutorial duty of disclosure by reason of the failure to reveal to him or his legal representatives prior to the 2002 trial that the events described in the second statement were derived from dreams or nightmares.

At the 2002 trial and after Miss C had given the evidence referred to above concerning the process by which she recalled the events recorded in her second statement, Senior Constable Brazel was called to give evidence. Senior Constable Brazel had taken the first and second statements from Miss C. She stated that she saw Miss C on 14 September 2000 and Miss C told her that:

"... she had been through [the first statement] and that she had been confused as to some of the sequence that some of the things happened and in the order in which they happened".

Senior Constable Brazel took some notes on that day and arranged to interview Miss C on 21 September 2000. On that day she took a further statement (the second statement). In cross examination by counsel for Bilal Skaf, Senior Constable Brazel was asked (T546.15):

"Q. And did she tell you that she had had flashbacks or use that term in any conversation she had with you on 14 September; that is, flashbacks as to what she was alleging had occurred to her on 30 August?

A. I don't recall her referring to them as flashbacks, but she certainly indicated to me that her first statement wasn't accurate." (emphasis added)

At the time these questions were asked it had been two days since Miss C had referred to the events coming to her while she was asleep (ie "flashbacks" while sleeping). Counsel for Bilal Skaf did not follow up with Senior Constable Brazel what she meant by "them" in this answer, or seek to clarify whether Miss C told Senior Constable Brazel anything to the effect that the events had come to her while she was asleep.

Senior Constable Brazel was called to give evidence at the 2007 retrial of Mr Ghanem. She was again cross-examined on the differences between the first and second statements and the process by which the second statement came to be drafted and signed. A reading of the transcript confirms that her recollection of events was relatively poor and she had not reviewed much material before giving evidence. Senior Constable Brazel was asked as follows:

"Q. ... did she tell you how those changes, yes or no, how those changes occurred to her?

A. Yes she did.

Q. Did she tell you she had had nightmares?

A. Yes she had.

Q. She did tell you that, did she?

A. She did tell me it came to her in a dream.

Q. In a dream?

A. Yes."

The Attorney-General submits that this evidence of Senior Constable Brazel is inconsistent with the evidence she gave at the 2002 trial set out at [80] above and that due to the passage of time I should accept the evidence from the 2002 trial. I do not consider there to be any inconsistency. All that Senior Constable Brazel stated at the 2002 trial, set out in the extract above at [80], is that Miss C did not use the term "flashbacks" on 14 September 2000. That evidence is not inconsistent with Senior Constable Brazel's statement in 2007 that Miss C had told her that the events "came to her in a dream". It seems most likely that it was the dream(s) that Senior Constable Brazel was referring to when she used the word "them" in answer to the question at the 2002 trial that I have extracted above (at [80]).

However all that is known is that Miss C told Senior Constable Brazel that the new sequence of events had come to her in a dream. There is nothing to suggest that prior to the 2002 trial Senior Constable Brazel questioned Miss C as to the significance of the dreams, how many, or whether there was any other memory trigger. Further there is nothing to suggest that Senior Constable Brazel attached any significance to the disclosure made by Miss C to her that the events had come to her in a dream. At the 2002 trial Miss C explained how she had recollected the events the subject of her second statement, and that explanation was heard by all counsel appearing, most if not all of whom were very experienced. No application of any kind was made by those counsel as a consequence at that point or any subsequent time in the trial. The question set out at [80] above was the only question asked of Senior Constable Brazel on this topic. If experienced counsel heard Miss C's references to recalling events while asleep and did not attribute any significance to it why should it be expected that Senior Constable Brazel considered it important, or even relevant, when Miss C told her that on 14 September 2000?

Bilal Skaf's submissions refer to a number of authorities concerning the prosecution's duty to disclose exculpatory material including matters affecting the credit of prosecution witnesses (citing Mallard v R [2005] HCA 68; 224 CLR 125 at [83] per Kirby J; and Grey v R [2001] HCA 65; 75 ALJR 1708). He appears to accept that there is nothing to suggest that the Crown Prosecutor was aware of Miss C's process of recalling the events in the second statement, but it is contended that material within the knowledge of an investigating detective is sufficient to engage an obligation of disclosure (citing Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 at [54], and clause 18 of the Director of Public Prosecutions Guidelines, see now s 15A of the Director of Public Prosecutions Act 1986).

It follows from the above that I accept that Senior Constable Brazel was aware prior to the 2002 trial that Miss C had stated that the events described in the second statement had come to her in a dream. However I do not accept that Senior Constable Brazel was aware that that disclosure was potentially exculpatory or that she should have been aware that it was exculpatory. The potential significance of this "revelation" was only apparent upon Dr Roberts' evidence becoming available and, in any event, his evidence only has an exculpatory quality because it construes Miss C's evidence of her own mental processes too literally. The question of whether the failure of the prosecution to disclose some matter disclosed to it by the complainant amounts to a failure to comply with its duty to disclose exculpatory material involves an assessment of the nature of the material and whether it could reasonably be perceived to bear upon the credibility of Miss C "on a sensible appraisal by the prosecution" (R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454 at [48] per Hodgson JA). I am not satisfied that there was any such failure here. Had this material been of that character I would have expected that immediate complaint would have been made at the 2002 trial and Senior Constable Brazel would have been pressed much further on the disclosures made to her by Miss C as to how she came to recall the events. That did not occur.

The absence of any disclosure of the statement made by Miss C to Detective Brazel that the events described in the second statement had come to her in a dream does not cause me to have a sense of unease or disquiet concerning Bilal Skaf's guilt. It does not raise a doubt or question as to his guilt.

Conclusion

None of the matters relied on raise a doubt or question as to Bilal Skaf's guilt. Nor do they give rise to a doubt or question about the evidence demonstrating his guilt.

I refuse the application.

**********

Amendments

19 April 2013 - Eighth word of Prof Quadrio's quotation anonymised to read "Miss C".

Amended paragraphs: 55

Decision last updated: 19 April 2013

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Citations

SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45

Most Recent Citation

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Medium Neutral Citation:	SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45
Decision date:	12 March 2013
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	Application refused
Catchwords:	CRIMINAL LAW - Inquiry subsequent to conviction - applicant convicted of sexual assault offences - whether doubt or question as to guilt - reliability of evidence - where evidence based on dreams or flash backs - whether direction about unreliability of evidence required - whether breach of Prosecution's duty of disclosure - Crimes (Appeal and Review) Act 2001, s 78.
Legislation Cited:	Crimes Act 1900 - s 475 Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 - s 78, s 79 Criminal Procedure Act 1986 Evidence Act 1995 - s 4(1)(c) Director of Public Prosecutions Act 1986 - s 15A
Cases Cited:	Eastman v Director of Public Prosecutions [2003] HCA 28; 214 CLR 318 Grey v R [2001] HCA 65; 75 ALJR 1708 Holland, Peter James, Application of, s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Mallard v R [2005] HCA 68; 224 CLR 125 Rendell, Application of (1987) 32 A Crim R 243 R v Chami, M. Skaf, Ghanem, B. Skaf [2004] NSWCCA 36 R v Eishauer (1997) 96 A Crim R 489 R v G [2005] NSWCCA 291 R v Jenkyns (1993) 32 NSWLR 712 R v McFelin [1985] 2 NZLR 750 R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454 R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; 60 NSWLR 86 R v Skaf, Ghanem, Hajeid [2004] NSWCCA 74 R v Bilal Skaf [2005] NSWCCA 297 R v Bilal Skaf, R v Mohammed Skaf [2006] NSWSC 394 R v Tillott (1995) 38 NSWLR 1 Skaf v R; Hajeid v R; Ghanem v R [2005] HCATrans 744 Bilal Skaf v R; Mohammed Skaf v R [2008] NSWCCA 303 Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Category:	Principal judgment
Parties:	Skaf, Bilal (Applicant)
File Number(s):	n/a