AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 17 December 2008

Skaf, Bilal v R Skaf, Mohammed v R

[2008] NSWCCA 303

Sexual offences
CRIMINAL LAW JURISDICTION, PRACTICE AND PROCEDURE STAY OF PROCEEDINGS PRE CRIMINAL LAW EVIDENCE

Citation: Skaf, Bilal v R; Skaf, Mohammed v R [2008] NSWCCA 303
Court: New South Wales Court of Criminal Appeal
Date: 17 December 2008
Judge(s): McClellan CJ at CL; Hidden J; Howie J

Background

The two appellants, brothers, were convicted at a retrial in the Supreme Court before Mathews AJ on charges arising from a sexual assault committed on 12 August 2000 at Greenacre. The first appellant was convicted of two counts of aggravated sexual intercourse without consent. The second appellant was convicted of inciting and procuring the commission of the offence by his brother.

This was a second trial. Their original convictions had been quashed by the Court of Criminal Appeal in 2004 following trial irregularities. The retrial therefore proceeded against the backdrop of substantial prior media coverage, including reporting that identified both men by name after a suppression order was lifted by the trial judge in the original proceedings.

Both appellants were sentenced by Mathews AJ following the retrial. They appealed against both their convictions and their sentences.

  • Whether the trial judge erred in refusing to permanently stay the proceedings on the ground that pre-trial and in-trial publicity had made a fair trial impossible
  • Whether there was a miscarriage of justice because the publicity meant the appellants did not in fact receive a fair trial
  • Whether the trial judge erred in directing the jury that they could use other evidence in the Crown case to bolster the identification evidence
  • Whether the sentences imposed were manifestly excessive or otherwise infected by error, including on grounds of totality, the second appellant's youth, and insufficient differentiation between the two sentences

Decision

Permanent stay and fair trial grounds: The Court dismissed both conviction appeals. On the permanent stay ground, the Court accepted that there had been extensive publicity about the appellants, including material linking them to a series of gang rapes. However, the appellants were unable to demonstrate that the level of prejudice was so great that no jury, properly directed, could bring an unprejudiced mind to the case. The court reaffirmed that a permanent stay is a remedy of last resort and that the proper management of jury directions is ordinarily sufficient to address publicity-related prejudice.

Miscarriage of justice ground: The separately filed ground, alleging that actual miscarriage of justice resulted from the publicity, was also rejected. The Court found no basis to conclude that the jury had been unable, in practice, to assess the evidence fairly and in accordance with the directions given.

Identification direction ground: The Court rejected the submission that the trial judge's direction on identification evidence was erroneous. The complaint was that the judge had improperly invited the jury to use other Crown evidence to shore up the identification evidence. The Court found no error in the direction as given, and this ground therefore failed.

Sentence appeals: Both sentence appeals succeeded. In relation to the first appellant, the Court found error in the sentences imposed by Mathews AJ, including error in the application of totality principles, and imposed fresh sentences. In relation to the second appellant, the Court concluded that his sentence required adjustment to reflect his lesser role in the principal offending, his youth, the influence of his brother, and the effect of his health on his experience of imprisonment. The Court treated its reduction of the first appellant's sentences as necessarily flowing through to the second appellant's sentence.

Orders Made

  • Both appeals against conviction are dismissed.
  • In relation to the first appellant:
  • Leave to appeal against sentence granted; appeal allowed; sentences imposed by Mathews AJ quashed.
  • Count 2: 15 years imprisonment, commencing 12 February 2021, expiring 11 February 2036; non-parole period of 9 years, expiring 11 February 2030.
  • Count 3: 12 years imprisonment, commencing 12 February 2025, expiring 11 February 2037; non-parole period of 6 years, expiring 11 February 2031.
  • Total sentence expires 11 February 2037; eligible for parole 11 February 2031.
  • In relation to the second appellant:
  • Leave to appeal against sentence granted; appeal allowed; sentence imposed by Mathews AJ quashed.
  • 12 years imprisonment, commencing 2 January 2012, expiring 1 January 2024; non-parole period of 6 years, expiring 1 January 2018.

Key Takeaways

  • A permanent stay of criminal proceedings on grounds of pre-trial publicity remains a remedy of last resort. The Court of Criminal Appeal confirmed that extensive adverse media coverage does not, of itself, establish that a fair trial is impossible where appropriate jury directions can address the resulting prejudice.
  • Where a permanent stay is sought, appellants must demonstrate that the prejudice is so profound and irreparable that no direction could cure it. An argument that any delay would be equally futile, as was accepted by counsel in this case, effectively reinforces that the stay ground itself cannot succeed unless that high threshold is met.
  • No error was established in a direction that permitted the jury to consider other Crown evidence alongside identification evidence, provided the direction accurately stated the applicable legal principles.
  • On sentence, totality remains a central consideration when an offender is serving multiple terms for related offending. The Court treated the reduction of one co-offender's sentence as flowing inevitably to the other's, given the need to maintain appropriate distinction between their respective roles.
  • Factors personal to an offender at sentencing, including youth, the influence of a co-offender, and the effect of poor health on the experience of custody, are properly taken into account both at first instance and on appeal, and may justify adjustment even where they were considered in earlier sentencing proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Procedure Amendment (Evidence) Bill 2005

Cases:
- Domican v The Queen [1992] HCA 13; (1991-1992) 173 CLR 555
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Jago v District Court of New South Wales (1989) 168 CLR 23
- The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592
- Tuckiar v The King (1934) 52 CLR 335
- R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86
- R v Bilal Skaf [2005] NSWCCA 297
- R v Chami; R v Sheikh [2002] NSWCCA 136; (2002) 128 A Crim R 428
- R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371
- R v Gilmore (1979) 1 A Crim R 416
- R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431
- R v Razzak [2004] NSWCCA 62
- R v Turner [2000] SASC 27; (2000) 76 SASR 163
- R v Ferguson; Ex parte A-G (Qld) [2008] QCA 227
- Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425