Skondin v R [2005] NSWCCA 417

Citation: Skondin v R [2005] NSWCCA 417
Court: Court of Criminal Appeal, New South Wales
Date: 8 December 2005
Judge(s): Studdert J, Whealy J, Howie J

Background

The appellant was convicted in the District Court of malicious wounding after a victim was stabbed multiple times in a Sydney park in October 2002. The Crown relied on the victim's identification of the appellant as his attacker, together with CCTV footage from a nearby newsagency that the victim said depicted the appellant shortly before the stabbing. The appellant gave evidence denying he was present at the scene.

The appellant's cousin, Monique Woolbank, had given police a statement in 2002 indicating he had stayed at her flat almost every night in the week leading up to his arrest on 14 October 2002. The Crown initially intended to call her as a witness, but withdrew that intention during the trial. Defence counsel learned only during the trial that Ms Woolbank could provide alibi evidence placing the appellant at her flat on the night of the stabbing.

No notice of alibi had been given within the statutory period prescribed by the Criminal Procedure Act. When defence counsel sought leave during the trial to call Ms Woolbank's alibi evidence, the trial judge refused. The appellant appealed his conviction on multiple grounds.

Legal Issues

Whether the trial judge erred in refusing to discharge the jury following the Crown's opening reference to the appellant's drug use
Whether the trial judge erred in refusing to discharge the jury after the victim gave evidence describing the appellant's appearance as "ravaged by drug use"
Whether the trial judge improperly restricted cross-examination of police witnesses
Whether the trial judge erred in refusing to direct or request that the Crown call Ms Woolbank
Whether the trial judge erred in refusing leave to introduce alibi evidence under s 150 of the Criminal Procedure Act
Whether the trial judge's interventions during the trial caused a miscarriage of justice
Whether the trial judge erred in directing the jury to disregard defence submissions about a deficient police investigation, and in directing that they were not to consider another person responsible for the stabbing
Whether the trial judge failed adequately to refer to the appellant's evidence in the summing up
Whether the verdict was unreasonable
Whether fresh evidence from Ms Woolbank and her de facto partner should be received by the Court of Criminal Appeal

Decision

Ground 3 (discharge after Crown opening): The Court found no error in the trial judge's refusal to discharge the jury following the Crown Prosecutor's opening reference to the appellant's drug use. The drug use was directly relevant to the nature of the relationship between the appellant and the victim, and the judge's discretion was properly exercised.

Ground 4 (discharge after victim's evidence): The victim's description of the appellant as appearing "ravaged by drug use" was unresponsive and ought not to have been given. However, the Court was not persuaded this caused a miscarriage, particularly as defence counsel did not seek the direction the judge had contemplated giving, and did not complain about the absence of any direction in the summing up.

Ground 5 (restriction of cross-examination): The Court reviewed the cross-examination of Inspector Fletcher and Detective Constable Morrison and concluded that no ruling prevented defence counsel from eliciting admissible and relevant evidence from either witness. This ground failed.

Ground 6 (failure to direct Crown to call Ms Woolbank): The Court held there was no error. A trial judge has no power to direct the Crown to call a particular witness, consistent with the principles in The Queen v Apostilides (1984) 154 CLR 563. This ground was not established.

Ground 7 (refusal of leave to introduce alibi evidence): The Court found the trial judge erred in refusing leave under s 150 of the Criminal Procedure Act. While the judge was correct to find that the defence had ample opportunity before trial to make inquiries of Ms Woolbank, the Crown had not demonstrated any specific prejudice from the late application, nor identified any avenue of investigation that had been lost to it. The Court held that leave should not be refused unless prejudice arises that cannot be addressed without significant disruption to the trial. No such prejudice was established here. This ground succeeded.

Ground 8 (undue judicial intervention): After reviewing the relevant transcript passages, the Court was not persuaded that the judge's interventions caused the trial to miscarry. This ground was not established.

Grounds 9 and 10 (jury directions regarding police investigation and alternative suspects): The Court found no substance in complaints about the judge directing the jury to disregard submissions about a deficient police investigation. The accompanying direction that properly focused the jury on the real issue was correct. These grounds were not established.

Ground 11 (failure to refer to appellant's evidence): The summing up was found to have sufficiently reminded the jury of the appellant's evidence on the central narrow issue. Leave to rely on this ground was refused.

Ground 2 (unreasonable verdict): Despite the prosecution case being by no means overwhelming, with multiple witness descriptions inconsistent with the Crown's case, the Court concluded it was open to the jury on the evidence, including the security footage, to be satisfied beyond reasonable doubt of the appellant's guilt. This ground failed.

Ground 12 (fresh evidence): The Court received evidence from Ms Woolbank and her de facto partner, Mr Mouhtaris. Ms Woolbank gave evidence that the appellant stayed at her flat throughout late September and October 2002, had no key, and did not go out at night after 8.00 or 9.00 pm, particularly after being injured. Medical records supported the appellant having suffered a hand fracture and ankle injury before 12 October 2002. The Court found this evidence was capable of belief and that there was a significant possibility that a jury would have acquitted the appellant had this evidence been before it, particularly given the identification evidence at trial was not strong.

Overall conclusion: The refusal to permit the alibi evidence amounted to a miscarriage of justice sufficient to quash the conviction. As the appellant had already served his entire fixed term sentence, the Court applied the established practice of not ordering a new trial in such circumstances.

Orders Made

Appeal allowed
The verdict of guilty is quashed absolutely
No new trial ordered

Key Takeaways

Under s 150 of the Criminal Procedure Act, a court should be slow to refuse leave to introduce alibi evidence tendered outside the prescribed period unless the Crown establishes prejudice that cannot be addressed without significant disruption to the trial. A general assertion of possible prejudice is insufficient.
The Court of Criminal Appeal confirmed that a trial judge has no power to direct the Crown to call a particular witness, consistent with The Queen v Apostilides.
Fresh alibi evidence received on appeal, supported by medical records and a corroborating witness, may be sufficient to establish a significant possibility that the jury would have acquitted, warranting the quashing of a conviction.
Where a conviction is quashed but the appellant has already served the entirety of the sentence imposed, the Court of Criminal Appeal's longstanding practice is not to order a new trial.
A prosecution case that rests substantially on a single identification witness, whose descriptions of the assailant varied, and whose account conflicted with other witnesses at the scene, is not necessarily an overwhelming one, even where a jury returns a guilty verdict.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated