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Court of Criminal Appeal 29 November 2007

ABDUL-KADER, Mostafa v R

[2007] NSWCCA 329

Also reported as 178 A Crim R 281
HomicideTheft & property
CRIMINAL LAW EVIDENCE THE ‘CREDIBILITY RULE’ EXCEPTION TO CREDIBILITY RULE ESTABLISHING CREDIT PRIOR CONSISTENT STATEMENT

Citation: ABDUL-KADER, Mostafa v R [2007] NSWCCA 329
Court: New South Wales Court of Criminal Appeal
Date: 29 November 2007
Judge(s): Beazley JA; Hulme J; Latham J

Background

The appellant was tried jointly with a co-accused, John Hohaia, and convicted of murder and robbery in company. The appellant received a sentence of 21 years imprisonment with a non-parole period of 15 years and 9 months for the murder, plus a concurrent fixed term of 18 months for the robbery. His co-accused received the same head sentence for murder but a longer non-parole period of 18 years.

At trial, the appellant ran an alibi defence, asserting he was at work at the time of the murder. A witness, Robert Dibb, gave evidence supporting that alibi. The Crown challenged Dibb's evidence, suggesting he was either mistaken about the date or fabricating his account. Defence counsel sought to tender a prior consistent statement Dibb had made to a solicitor approximately eight months after the night in question, relying on section 108(3)(b) of the Evidence Act 1995 (NSW). The trial judge rejected the tender.

The appellant appealed against conviction on the basis that the prior consistent statement was wrongly excluded. He also sought leave to appeal against sentence on two grounds: that his sentence lacked parity with his co-accused's, and that the trial judge failed to properly account for his pre-sentence custody.

  • Whether the trial judge erred in refusing to admit Robert Dibb's prior consistent statement under section 108(3)(b) of the Evidence Act 1995 (NSW), given the Crown's suggestion that the evidence was fabricated or reconstructed
  • Whether the trial judge erred in the exercise of discretion under section 192 of the Evidence Act in declining to admit the statement
  • Whether the appellant's sentence lacked parity with that of his co-accused, John Hohaia
  • Whether the trial judge failed to properly credit the appellant's period of pre-sentence custody when imposing sentence

Decision

Exclusion of the prior consistent statement

The Court of Criminal Appeal confirmed that the exercise of the discretion under section 108 of the Evidence Act turns on the effect the evidence would have on the witness's credibility. The Court found that Dibb's prior consistent statement contained nothing that explained how he came to remember the specific date on which he said he encountered the appellant. The trial judge's assessment, that the jury would gain no assistance from the statement in determining whether Dibb had arrived at the date by reconstruction or suggestion, was correct.

The Court also considered whether the trial judge had erred by not expressly addressing the fabrication limb of the Crown's challenge, as opposed to the reconstruction or suggestion limb. It held that even if the trial judge should have addressed fabrication separately, the conclusion would have been the same. No error was established in the refusal to admit the statement, and the appeal against conviction was dismissed.

Parity of sentence

The appellant argued he should feel aggrieved because his sentence was disproportionate relative to Hohaia's. The Court rejected this. The appellant's role in the offending was less serious than Hohaia's, and that lesser culpability was already reflected in his shorter non-parole period. Additionally, Hohaia was three years younger and of limited intellect, factors the sentencing judge was entitled to weigh in Hohaia's favour. The disparity in non-parole periods did not give rise to a legitimate sense of grievance.

Pre-sentence custody

The sentencing judge had noted that the appellant was entitled to credit for approximately five months spent in custody before sentence was passed. The Court confirmed that the preferred sentencing practice is to backdate the commencement of a sentence where pre-sentence custody is exclusively referable to the offences being sentenced. However, in this case, the appellant was already serving a separate term of imprisonment for other offences during that period, meaning the pre-sentence custody was not exclusively referable to the murder and robbery. The trial judge's express acknowledgment of the credit was sufficient, and no error in the sentencing process was established.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence allowed
  • Appeal against sentence dismissed

Key Takeaways

  • Under section 108(3)(b) of the Evidence Act 1995 (NSW), the admissibility of a prior consistent statement depends on whether it would materially assist the jury in assessing the witness's credibility, particularly in relation to the specific allegation of fabrication, reconstruction, or suggestion that has been raised.
  • A prior consistent statement that does not explain how the witness recalled a critical fact (in this case, a specific date) is unlikely to pass the threshold for admission, even where the Crown has directly challenged the truthfulness or reliability of that witness's account.
  • Where a co-accused receives a different sentence, a parity argument requires more than a bare disparity in outcomes; individual factors such as relative culpability, age, and intellectual capacity can justify sentencing differences without generating a legitimate sense of grievance.
  • Backdating a sentence to account for pre-sentence custody is described in this decision as desirable practice, but only where that custody is exclusively referable to the offences for which sentence is being passed. Custody served simultaneously for other offences does not attract the same treatment.
  • No error is established in the sentencing process simply because a trial judge credits pre-sentence custody without formally backdating the commencement date, provided the judge expressly acknowledges and accounts for that custody in the remarks on sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47(3), Div 1A
- Criminal Appeal Act 1912 (NSW), s 6(2), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 150
- Evidence Act 1995 (NSW), ss 66, 102, 108(3)(b), 192

Cases
- Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
- R v Ali [2000] NSWCCA 177
- R v Close (1992) 31 NSWLR 743
- R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
- R v McHugh (1985) 1 NSWLR 588
- R v MDB [2005] NSWCCA 354
- R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
- R v Simpson (1992) 61 A Crim R 58
- Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198
- Roberts v R [2007] NSWCCA 112