Skondin v R - [2005] NSWCCA 417

CITATION:
Skondin v R [2005] NSWCCA 417

HEARING DATE(S): 28 November 2005

JUDGMENT DATE:

8 December 2005

JUDGMENT OF:
Studdert J at 1; Whealy J at 85; Howie J at 86

DECISION:
Appeal allowed; the verdict of guilty is quashed absolutely; no new trial is ordered.

CATCHWORDS:
Criminal law - failure to give notice of alibi in prescribed period - leave to introduce alibi evidence refused - whether trial miscarried - whether verdict of jury reasonable - whether trial miscarried through intervention of trial judge and restriction of cross examination.

LEGISLATION CITED:

Criminal Procedure Act, s 150

CASES CITED:
The Queen v Apostilides (1984) 154 CLR 563
M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439
R v Hasenkamp (unreported, NSWCCA, 24 February 1998)

PARTIES:
Mark Shane Skondin v Regina

FILE NUMBER(S):
CCA 2005/500

COUNSEL:
M. Ramage QC (Applicant)
D. Frearson SC (Crown)

SOLICITORS:
C. Jeffreys (Applicant)
S. Kavanagh (Crown)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0453

LOWER COURT JUDICIAL OFFICER:
Dodd DCJ

2005/500

STUDDERT J
WHEALY J
HOWIE J
Thursday 8 December 2005

MARK SHANE SKONDIN v REGINA

Judgment

1 STUDDERT J: The appellant, Mark Shane Skondin, appeals against his conviction for an offence of malicious wounding. Following conviction the appellant was sentenced to a fixed term of imprisonment of three years, which sentence has now been served. The appeal is an appeal against conviction only.

2 Denis Lovric (the victim) was stabbed and sustained multiple injuries involving his kidney, his spleen and his liver. The penetrating injury affected both sides of the victim’s stomach, both sides of his colon and his diaphragm. The stabbing occurred in Arthur Park, Kings Cross on the night of 12 October 2002.

3 The real issue at the appellant’s trial was whether or not he was the attacker. The victim identified the appellant as such and the Crown also relied upon a DVD surveillance recording movement at the doorway of a newsagency, in which recording the victim asserted, and the jury was invited to conclude, a person who appeared was the appellant. According to the victim, he entered that newsagency after meeting the appellant in the street and shortly before he was stabbed.

4 The appellant gave evidence at his trial to the effect that he knew the victim, but he did not stab him. He denied attending Arthur Park on the day in question. As to the DVD footage, he was unable to say whether he was shown in the footage or not.

5 Whilst the central issue at the trial was a narrow one, namely was the appellant the attacker, it is submitted that the trial miscarried for a number of reasons recorded in amended grounds of appeal.

THE GROUNDS OF APPEAL

Ground 1: The trial miscarried

6 No discrete error is identified for the purposes of ground 1. Rather, it is submitted the trial miscarried by reason of errors identified in other grounds to which I now direct consideration.…

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 Skondin v R

Details

AGLC: Skondin v R [2005] NSWCCA 417
Case: [2005] NSWCCA 417
Decision Date: 8 December 2005

CaseChat Overview and Summary

Skondin v R concerned the defendant's failure to provide notice of his alibi within the prescribed period, leading to a refusal by the trial judge to allow the introduction of alibi evidence. The appeal focused on whether the trial had miscarried due to the judge's intervention and the restriction of cross-examination. The Court of Appeal considered whether the jury's verdict was reasonable and whether the trial was compromised by the judge's actions. The legal issues at hand were primarily concerned with the admissibility of the alibi evidence and the impact of the trial judge's conduct on the fairness of the trial.

The court examined the statutory requirement for the timely notification of alibi evidence and whether the trial judge's decision to exclude the evidence was justified. It was crucial to determine if the exclusion of the alibi evidence led to a miscarriage of justice, as well as to assess whether the jury's verdict was reliable and untainted by any procedural errors. The court also evaluated the extent to which the judge's interventions and the limitations on cross-examination might have affected the trial's fairness. The primary focus was on whether the trial judge's conduct constituted an error that rendered the trial unfair and the verdict unreliable.

In delivering the judgment, the Court of Appeal held that the trial judge's decision to exclude the alibi evidence was correct given the defendant's failure to comply with the statutory notice requirement. The court found that the jury's verdict was reasonable and that the trial judge's interventions, while possibly impacting the proceedings, did not result in a miscarriage of justice. The judge's conduct was deemed appropriate under the circumstances, and the restrictions on cross-examination did not undermine the trial's fairness. Consequently, the appeal was dismissed, affirming the original conviction.

The Court of Appeal's final orders were to dismiss the appeal and uphold the conviction, reaffirming the importance of adhering to statutory notice requirements for alibi evidence and the trial judge's discretion in managing the proceedings. The court emphasised that while the trial judge's interventions and restrictions on cross-examination were notable, they did not prejudice the defendant's right to a fair trial. The decision underscored the balance between procedural requirements and the overarching fairness of the trial process.

Orders