Citation: Regina v Kaddour [2002] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 5 April 2002
Judges: Stein JA; Dowd J; Buddin J
Background
The appellant was convicted in the District Court of driving in a manner dangerous and causing grievous bodily harm, following a collision in September 1998 on Barrenjoey Road, Mona Vale. He was driving a Lamborghini at speeds estimated between 100 and 105 km/h in a 60 km/h zone when the vehicle crossed a concrete median strip and struck an oncoming Volvo, injuring its driver. Multiple witnesses had observed him driving at very high speeds for approximately six kilometres before the collision.
At trial, the defence relied on the possibility of a mechanical defect, specifically that a jammed accelerator cable had caused the appellant to lose control. A prosecution expert who examined the vehicle eight days after the accident found no pre-collision mechanical faults. A defence expert examined the wreck some 21 months later and formed the view that the cable had jammed, though he acknowledged he had not inspected the engine at that time.
Following conviction, the appellant was sentenced to six years imprisonment with a non-parole period of four and a half years. He appealed both the conviction and the sentence.
Legal Issues
- Whether fresh expert evidence, obtained after the trial verdict, was genuinely unavailable at the time of trial such that it could ground a successful conviction appeal
- Whether the fresh evidence, if admitted, would have produced a different verdict
- Whether the original sentence of six years imprisonment was excessive in the circumstances
Decision
Conviction appeal: fresh evidence rejected
The central question on the conviction appeal was whether the post-trial expert evidence from the defence witness, Mr Wingrove, constituted admissible fresh evidence capable of overturning the jury's verdict. The Court of Criminal Appeal found that it did not. Mr Wingrove himself conceded during cross-examination that he could have examined the engine before trial, but had not been asked to do so by the defence. The failure to inspect the engine earlier was a matter of forensic choice rather than unavailability.
The Court found the fresh evidence was, in substance, available at the time of trial. Because the first requirement for admitting fresh evidence on appeal, that the evidence was not available at trial, was not satisfied, the conviction appeal could not succeed. The Court also noted that a competing expert, Senior Constable Lee, directly contradicted Mr Wingrove's post-trial conclusions, further undermining the prospect that the fresh evidence would have affected the verdict.
Sentence appeal: term reduced
The Court accepted that the original sentence of six years was excessive, having regard to both the objective seriousness of the offence and the appellant's subjective circumstances. A sentence of four years imprisonment was substituted. The Court also backdated the sentence commencement to 3 March 2000, reflecting two periods totalling four months during which the appellant had been in custody on unrelated charges for which he was later acquitted.
The appellant argued that his classification as an extreme high-security inmate since mid-2001, which significantly restricted his access to visits, employment and prison facilities, amounted to a special circumstance under the relevant sentencing legislation justifying a non-parole period below the standard three-quarter proportion. The Court was not satisfied this classification met that threshold, and fixed a non-parole period of three years.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted and the appeal allowed
- Original sentence set aside and replaced with four years imprisonment, commencing 3 March 2000 and expiring 2 March 2004
- Non-parole period of three years fixed, running from 3 March 2000 and expiring 2 March 2003
Key Takeaways
- Fresh evidence on a conviction appeal must be shown to have been genuinely unavailable at trial. Where a defence expert could have conducted additional examinations before trial but chose not to, that evidence does not qualify as "fresh" merely because it was obtained after the verdict.
- A jury's rejection of a mechanical defect defence was upheld where the prosecution expert found no pre-collision faults and the defence expert conceded he had not examined the engine at the relevant time.
- In dismissing the conviction appeal, the Court of Criminal Appeal applied established principles requiring fresh evidence to clear the threshold of prior unavailability before its likely effect on the verdict is even considered.
- Extreme high-security classification in custody, while concededly harsher than ordinary imprisonment, did not constitute a special circumstance under the Crimes (Sentencing Procedure) Act 1999 sufficient to justify a non-parole period below three-quarters of the head sentence.
- Periods spent in pre-sentence custody on unrelated charges, for which the appellant was ultimately acquitted, were taken into account by backdating the commencement of the substituted sentence.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- R v AT [2000] NSWCCA 342
- R v Hemsley (Unreported, Court of Criminal Appeal, 8 December 1995)
- Ratten v The Queen (1974) 131 CLR 510