Citation: Regina v Emad Sleiman [2003] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 21 August 2003
Judge(s): Sully J, Dunford J, Kirby J
Background
The appellant was convicted of the murder of Jason Burton, who was fatally stabbed outside a hotel in Parramatta in the early hours of 18 May 1997. The appellant stood trial alongside his nephew and his then partner, the latter charged as an accessory after the fact. The nephew was acquitted by direction at the close of the Crown case; the appellant and his partner were both found guilty by the jury.
The Crown case rested substantially on the evidence of the hotel's security manager, Adam Stacey, who witnessed the stabbing and later identified the appellant. Stacey had delayed reporting what he saw until December 1997, explaining that he feared for his life and that of his family following a series of threatening incidents after the night of the killing.
The appellant appealed against his conviction. A notable development during the lengthy pre-hearing history was that the nephew, Hassan Kalache, swore an affidavit in August 2002 claiming that he, not the appellant, had inflicted the fatal wounds.
Legal Issues
- Whether the trial miscarried by reason of the admission of the deceased's dying words naming Kalache as the attacker, given that the Crown case at trial was that the appellant (not Kalache) was responsible
- Whether the identification evidence given by Adam Stacey was so flawed as to render the conviction unsafe
- Whether Stacey's explanation for his delay in coming forward undermined the reliability of his evidence to the point of warranting a new trial
- Whether the Kalache affidavit constituted fresh evidence capable of supporting the appeal
Decision
The Court dismissed the appeal against conviction. Sully J wrote the principal judgment, with Dunford J and Kirby J agreeing.
On the dying declaration issue, the deceased's words identifying Kalache were admitted at trial. The Court examined whether the admission of this statement, when the Crown's own case pointed to the appellant rather than Kalache as the killer, resulted in any unfairness or miscarriage. The Court concluded that no appealable error arose from this aspect of the trial.
Regarding Stacey's eyewitness evidence, the Court accepted that his identification of the appellant was a matter for the jury. His delayed reporting, and the explanation he gave for it, were thoroughly tested in cross-examination. The jury had the opportunity to assess his credibility and reliability, and no basis was established to disturb their verdict on this ground.
The Kalache affidavit, in which Kalache claimed personal responsibility for the stabbing, was treated as a fresh evidence ground. The Court assessed this material against the established tests for the admission of fresh evidence on appeal and concluded that it did not satisfy those tests in a way that would justify granting a new trial. The conviction stood.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury's assessment of eyewitness credibility, including credibility affected by a substantial delay in reporting, will not readily be disturbed on appeal where the delay was explained and tested at trial.
- A dying declaration naming a person other than the accused as the perpetrator does not automatically produce a miscarriage of justice, particularly where the full context of the evidence is before the jury.
- Fresh evidence in the form of a post-conviction affidavit by a co-accused accepting personal responsibility for the offence will be scrutinised carefully; such an affidavit does not automatically qualify for admission on appeal or automatically warrant a new trial.
- No error was established in the conduct of the trial before Sperling J, despite the complexity of the evidentiary issues arising from multiple witnesses, disputed identification, and the unusual procedural history of the appeal.
- The procedural record in this matter illustrated the significant delays that can arise in criminal appeals where grounds are revised multiple times and key supporting material, such as a co-accused's affidavit, is obtained well after the original hearing date was set.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- Mickelberg v The Queen (1989) 167 CLR 259
- R v PLV (2001) 123 A Crim R 194
- R v Bikic [2002] NSWCCA 227
- Gilbert v The Queen [2000] CLR 414
- McClean v Commonwealth of Australia (unreported, 27 June 1996)
- Regina v M [2002] NSWCCA 66
- Ratten v The Queen (1974) 131 CLR 510
- Lawless v The Queen (1979) 142 CLR 659
- Gallagher v The Queen (1985) 160 CLR 392
- R v William Woodcock (1789) 1 Leach 500; 168 ER 352
- R v Salama [1999] NSWCCA 105
- R v Rose (2002) 55 NSWLR 701