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19
Court of Criminal Appeal 6 May 2004

REGINA v Bilal SKAF, REGINA v Mohammed SKAF

[2004] NSWCCA 37

Also reported as (2004) 60 NSWLR 86
Sexual offences
CRIMINAL LAW SEXUAL OFFENCES IDENTIFICATION ISSUES EVIDENCE ACT, S116 RULE 4 DIRECTIONS ABOUT LIES

Citation: Regina v Bilal Skaf; Regina v Mohammed Skaf [2004] NSWCCA 37
Court: New South Wales Court of Criminal Appeal
Date: 6 May 2004
Judges: Mason P, Wood CJ at CL, Sully J

Background

The two appellants were jointly tried in the District Court before Finnane DCJ and a jury, with verdicts returned on 11 July 2002. The first appellant was convicted of two counts of aggravated sexual intercourse without consent against the complainant at Gosling Park, Greenacre, on 12 August 2000. The second appellant, his brother, was convicted of one count of being an accessory before the fact to those two offences.

The Crown case against the second appellant was that he lured the complainant to Gosling Park by car, attempted to induce her to engage in sexual activity, and then, while in constant mobile phone contact with his brother and others, persuaded her to remain at the park until those men arrived and sexually assaulted her. The central dispute was not what the second appellant did, but what he knew and intended.

Both appellants appealed their convictions to the Court of Criminal Appeal on multiple grounds, including identification issues, directions on reasonable doubt, the adequacy of alibi directions, media publicity, and, critically, juror misconduct.

  • Whether the trial judge's identification directions to the jury were adequate
  • Whether the trial judge erred in directing the jury on the meaning of "beyond reasonable doubt"
  • Whether directions regarding the complainant's complaint and the alibi defence were adequate
  • Whether the trial judge should have discharged the jury due to media publicity arising from related earlier proceedings
  • Whether the trial miscarried because two jurors made an unauthorised visit to the crime scene the night before verdict, conducting their own lighting experiment
  • Whether evidence of what occurred during that visit was admissible, given the general rule against receiving evidence of jury deliberations
  • Whether the sentences required adjustment to run from the date the appellants first entered custody

Decision

The Court dismissed grounds one through five of the first appellant's appeal and the corresponding grounds of the second appellant's appeal. The trial judge's identification directions, directions on reasonable doubt, complaint directions, alibi directions, and the decision not to discharge the jury due to media publicity were all found to be adequate. Those grounds required no further discussion.

The decisive issue was ground six (first appellant) and the corresponding ground ten (second appellant): that the trial miscarried due to juror misconduct. The jury foreman and one other juror visited Gosling Park the evening before the verdict was delivered, spending approximately 15 to 20 minutes conducting what amounted to an informal experiment on lighting conditions in the park. The foreman moved around the park at distances of two to three metres from the second juror and asked whether he could be seen clearly. Lighting at the park had been a live issue at trial, particularly relevant to identification. The foreman did not disclose the visit to the remaining jurors.

The Court first addressed whether evidence of the visit was admissible at all. The general rule is that evidence of jury deliberations is inadmissible, to protect the finality of verdicts and the integrity of the jury system. However, the Court found that the Gosling Park visit, although it occurred after the jury had retired to consider its verdict, could not properly be characterised as part of the jury's deliberations. It was an external investigation, conducted outside the jury room, involving only two of the twelve jurors. Accordingly, evidence of what occurred at the park was admissible.

On the substantive question, the Court found the misconduct caused the trial to miscarry. The foreman had gathered information by his own experiment, outside the trial process, that was directly relevant to a contested factual issue, and had done so without informing the other jurors or the court. The Court described ordering a new trial as "regrettable" but concluded there was no alternative. Both convictions were quashed and a new trial was ordered. The Court also varied the sentences imposed on the second appellant in related proceedings so that they ran from 3 January 2001, the date he first entered custody.

Orders Made

  • Convictions of both appellants quashed; new trial ordered on all counts
  • Sentences of the second appellant (Mohamed Skaf) in the related Bankstown and Chullora proceedings varied so as to commence on 3 January 2001, with the following structure:
  • Count 1: 5 years imprisonment (concurrent with Count 2, partly cumulative with Counts 14 and 15); non-parole period of 3 years, concluding 2 January 2004
  • Count 2: 17 years imprisonment (concurrent with Count 1, partly cumulative with Counts 14 and 15); non-parole period of 11 years, concluding 2 January 2012
  • Count 14: 5 years imprisonment (concurrent with Count 15, partly cumulative on Counts 1 and 2); non-parole period of 3 years, commencing 1 January 2010
  • Count 15: 15 years imprisonment (concurrent with Count 14, partly cumulative on Counts 1 and 2); non-parole period of 3 years and 2 days, commencing 1 January 2010, with release on parole on 2 January 2013 subject to Probation and Parole Service supervision
  • Orders made subject to liberty to apply
  • Both appellants' rights to pursue pending sentence appeals unaffected

Key Takeaways

  • An unauthorised visit by two jurors to the crime scene to conduct their own lighting experiment, the evening before delivering a verdict, constitutes juror misconduct serious enough to cause a trial to miscarry and require a new trial.
  • Evidence of juror conduct that amounts to an external investigation, as distinct from the deliberative process within the jury, is admissible on appeal, notwithstanding the general rule protecting the secrecy of jury deliberations.
  • The Court of Criminal Appeal confirmed that jury deliberations can occur outside a formal jury room setting, but the line between deliberation and independent investigation remains a matter of degree, assessed on the specific facts.
  • In dismissing five of the six grounds of appeal, the Court upheld the adequacy of the trial judge's directions on identification, reasonable doubt, complaint evidence, alibi, and the management of prejudicial media publicity.
  • Courts retain the power to vary sentence commencement dates to ensure that time already served in custody is properly credited, without otherwise altering the substance of sentences imposed below.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 53, 76, 78, 89, 95, 97, 101, 116
- Crimes (Forensic Procedures) Act 2000 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Jury Act 1977 (NSW), ss 68, 68A

Key Cases:
- Domican v The Queen (1992) 173 CLR 555
- Edwards v The Queen (1993) 178 CLR 193
- Zoneff v The Queen (2000) 200 CLR 234
- Smith v The Queen (2001) 206 CLR 650
- TKWJ v R (2002) 193 ALR 7
- Dhanhoa v The Queen (2003) 77 ALJR 1433
- The Queen v Glennon (1992) 173 CLR 592
- R v Mirza [2004] 2 WLR 201
- R v Young [1995] 2 QB 324
- Ellis v Deheer [1922] 2 KB 113
- R v Pan [2001] 2 SCR 344
- R v Chami, M Skaf, Ghanem, B Skaf & Ors [2004] NSWCCA 36
- Vaise v Delaval (1785) 1 TR 11