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Court of Criminal Appeal 13 April 2006

Kanaan & Ors v Regina

[2006] NSWCCA 109

HomicidePublic order & justice offences

Citation: Kanaan & Ors v Regina [2006] NSWCCA 109
Court: New South Wales Court of Criminal Appeal
Date: 13 April 2006
Judge(s): Hunt AJA, Buddin J, Hoeben J

Background

Three appellants were convicted in the Supreme Court (before Wood CJ at CL) of murder arising from the killing of the head of a criminal organisation by members of that same organisation. The Crown case was built principally on a joint criminal enterprise theory. The prosecution relied heavily on the testimony of a former member of the organisation who had been given an undertaking by the Attorney General that, provided his evidence was truthful, it would not be used against him.

Each appellant challenged their conviction on appeal. Two of the three also sought to appeal their sentences. The sentence appeals raised issues about whether the original sentences were within the proper range for what the trial judge described as a premeditated, greed-motivated assassination.

  • Whether the trial judge was required to give the jury specific warnings about the potential unreliability of accomplice evidence, beyond accurately putting the Crown and defence cases
  • Whether the traditional direction that it is "dangerous to convict" on uncorroborated accomplice evidence was required, and whether one accomplice's evidence could independently support another accomplice's evidence
  • Whether the Crown's handling of a Crown witness who gave evidence of negative identification (that is, evidence that an accused was not present) was procedurally proper, and what directions were required about such evidence
  • Whether the sentences imposed were excessive and, if so, what the proper sentences should be

Decision

On the conviction appeals, the Court dismissed all three. The Court confirmed that, outside identification evidence, a trial judge is not required to give elaborate warnings about categories of potentially unreliable evidence beyond the general obligation to put both the Crown and defence cases accurately and fairly to the jury. The accomplice warning direction (that it is dangerous to convict on uncorroborated accomplice evidence) was described as unnecessary but not prohibited. The Court also addressed whether one accomplice's evidence could provide independent support for another accomplice's evidence, a question of significance given the structure of the Crown case.

The Court examined the conduct of the trial in relation to a Crown witness who gave negative identification evidence, meaning she gave evidence suggesting an accused was not present at a relevant time. The Crown prosecutor did not seek leave to cross-examine that witness but instead invited the jury to disbelieve her. The Court considered whether the accused had been disadvantaged by losing an opportunity to call supporting evidence, and what jury directions were appropriate in that context.

On sentencing, the appeals by Kanaan and Mawas were dismissed. The Court found their sentences were within an appropriate range for crimes properly characterised as premeditated, cold-blooded assassinations motivated by greed. The appeal by El-Assaad succeeded by majority: the Court found the original sentence warranted adjustment, and resentenced him to a non-parole period of 16 years and 6 months with a total term of 22 years. The dissenting judge considered the original sentence was within range and would have dismissed that appeal.

Orders Made

  • The appeal against conviction by each of the three appellants is dismissed.
  • The application by Kanaan to defer an application for leave to appeal against sentence is refused.
  • The application by Mawas for an extension of time to seek leave to appeal against sentence is granted, leave is granted, but the appeal against sentence is dismissed.
  • The application by El-Assaad for leave to appeal against sentence is granted, and by majority the appeal is allowed. The sentence imposed in the Common Law Division is quashed and replaced with a non-parole period of 16 years and 6 months commencing 17 September 1999 and expiring 16 March 2016, with a total term of 22 years expiring 16 September 2021. He is eligible for parole on 16 March 2016.

Key Takeaways

  • Outside identification evidence, the obligation on a trial judge in New South Wales does not extend to giving elaborate directions about specific categories of witness unreliability. The requirement is to put the Crown and defence cases accurately and fairly to the jury.
  • A direction that it is "dangerous to convict" on uncorroborated accomplice evidence remains permissible under NSW law, even though the Court confirmed it is no longer strictly required.
  • The question of whether one accomplice's evidence can provide independent corroborating support for another accomplice's evidence was squarely raised and addressed in the context of this joint criminal enterprise prosecution.
  • Where a Crown witness gives negative identification evidence and the Crown prosecutor neither seeks leave to cross-examine nor calls contradicting evidence, questions arise about what jury directions are appropriate and whether the defence has been unfairly prejudiced. The Court examined this issue in detail.
  • In dismissing El-Assaad's conviction appeal but allowing his sentence appeal by majority, the Court applied the well-established principle from House v The King that an appellate court must be positively satisfied that a different sentence was warranted in law before intervening on sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Regulation 2001
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Criminal Appeal Act 1912
- Evidence Act 1995
- Criminal Appeal Rules

Key Cases:
- House v The King (1936) 55 CLR 499
- Adam v The Queen (2001) 207 CLR 96
- Davies v DPP [1954] AC 378
- Domican v The Queen (1992) 173 CLR 555
- Dhanhoa v The Queen (2003) 217 CLR 1
- TKWJ v The Queen (2002) 212 CLR 124
- Osland v The Queen (1998) 197 CLR 316
- Postiglione v The Queen (1997) 189 CLR 295
- Mickelberg v The Queen (1989) 167 CLR 259
- Bromley v The Queen (1986) 161 CLR 315
- Gallagher v The Queen (1986) 160 CLR 392
- Rex v Baskerville [1916] 2 KB 658
- Regina v Simpson (2001) 53 NSWLR 704
- Regina v Johnson [2005] NSWCCA 186
- Regina v Rose (2002) 55 NSWLR 701
- Nudd v The Queen [2006] HCA 9