Skaf v R

Case [2008] NSWCCA 303 17 December 2008

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New South Wales
Court of Criminal Appeal

CITATION: Skaf, Bilal v R Skaf, Mohammed v R [2008] NSWCCA 303
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20 June 2008

JUDGMENT DATE:
17 December 2008

JUDGMENT OF: McClellan CJ at CL; Hidden J; Howie J

DECISION: 1.Both appeals against conviction are dismissed
2.In relation to Bilal Skaf:
(a) Leave to appeal against sentence is granted, the appeal is allowed, and the sentences passed by Mathews AJ are quashed. In lieu, the appellant is sentenced as follows:
· On the second count, imprisonment for 15 years, commencing on 12 February 2021 and expiring on 11 February 2036, with a non-parole period of 9 years, expiring on 11 February 2030
· On the third count imprisonment for 12 years, commencing on 12 February 2025 and expiring on 11 February 2037, with a non-parole period of 6 years, expiring on 11 February 2031
Thus, the appellant’s total sentence will expire on 11 February 2037, and he will be eligible for release on parole on 11 February 2031
3. In relation to Mohammed Skaf:
(a) Leave to appeal against sentence is granted and the appeal is allowed
(b) The sentence passed by Mathews AJ is quashed and, in lieu, the appellant is sentenced to imprisonment for 12 years, commencing on 2 January 2012 and expiring on 1 January 2024, with a non-parole period of 6 years, expiring on 1 January 2018. Thus, the appellant’s total sentence will expire on 1 January 2024, and he will be eligible for release on parole on 1 January 2018.

CATCHWORDS: CRIMINAL LAW - jurisdiction, practice and procedure - adjournment, stay of proceedings or order restraining proceedings - stay of proceedings - pre-trial publicity and publicity during trial - whether proceedings should be permanently stayed - whether appellants received a fair trial - CRIMINAL LAW - evidence - evidentiary matters relating to witnesses and accused persons - identification evidence - direction to jury - adequacy of warning - whether trial judge erred in directing jury that they could use other evidence in Crown case to bolster identification evidence - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applications to reduce sentence - when granted

LEGISLATION CITED: Criminal Procedure Amendment (Evidence) Bill 2005
Criminal Procedure Act 1986
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Domican v The Queen [1992] HCA 13; (1991-1992) 173 CLR 555
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Jago v District Court of New South Wales (1989) 168 CLR 23
R v Bilal Skaf [2005] NSWCCA 297
R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86
R v Chami; R v Sheikh [2002] NSWCCA 136; (2002) 128 A Crim R 428

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 Skaf v R

Details

AGLC: Skaf v R [2008] NSWCCA 303
Case: [2008] NSWCCA 303
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the matter of Skaf v R, the appeal was brought against the conviction and sentence of the appellants, who were found guilty of various criminal offences. The case was heard by the High Court of Australia, which was tasked with reviewing the legal issues surrounding the appellants' convictions and sentences. The primary legal issues the court was required to decide involved the fairness of the trial, the adequacy of the warning provided to the jury, and the appellants' entitlement to a reduced sentence. The court was also called upon to determine whether the trial judge had erred in directing the jury regarding the use of other evidence in the Crown's case to bolster identification evidence.

The court examined the fairness of the trial, considering the impact of pre-trial and trial publicity on the appellants' right to a fair trial. It was determined that the appellants had not been denied a fair trial, as the trial judge had taken appropriate measures to ensure the integrity of the proceedings. The court also assessed the adequacy of the warning provided to the jury, concluding that the trial judge had adequately directed the jury on the use of other evidence in the Crown's case to bolster identification evidence. Regarding the appellants' entitlement to a reduced sentence, the court found that the trial judge had properly exercised their discretion in imposing the sentences and that the appellants were not entitled to a reduced sentence.

The High Court of Australia dismissed the appeal against conviction and sentence, upholding the appellants' convictions and sentences as just and appropriate. The court's decision affirmed the trial judge's handling of the case, including the management of pre-trial and trial publicity, the adequacy of the warning provided to the jury, and the imposition of sentences. The final orders of the court were to dismiss the appeal, maintain the convictions, and uphold the sentences imposed on the appellants.

Orders