Citation: R v Syed, Islam, Mahmood [2008] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 4 March 2008
Judge(s): McClellan CJ at CL, Hulme J, Harrison J
Background
Three men, referred to here by their roles as the principal offenders and an aider, were convicted by a jury on 18 October 2006 following a trial in the District Court before Phegan DCJ. The charges arose from an incident on 17 August 2005 in Kensington, where the victim was approached on a footpath, placed in a chokehold, and threatened with a knife while his mobile phone was demanded. Two of the appellants were convicted of robbery in company; the third was convicted of aiding and counselling the commission of that offence. Two juvenile co-offenders were also involved but their names were suppressed under the Children (Criminal Proceedings) Act.
All three convicted men appealed against their convictions. The Crown separately appealed against the sentences imposed by Judge Phegan, on the basis that they were manifestly inadequate.
Legal Issues
- Whether the trial judge erred in admitting the electronically recorded interview (ERISP) of a juvenile witness under s 138 of the Evidence Act 1995 (and, later, s 137)
- Whether the trial judge's directions to the jury on the potential unreliability of that witness's evidence were adequate under s 165 of the Evidence Act 1995
- Whether one of the appellants was wrongly refused leave to adduce evidence of a prior consistent statement after fabrication was suggested in cross-examination
- Whether the verdicts were unreasonable and unsupported by the evidence
- Whether the sentences imposed were manifestly inadequate, warranting intervention by the Court of Criminal Appeal on Crown appeal
Decision
The Court of Criminal Appeal, with Hulme J delivering the principal judgment and the other judges agreeing, dismissed all three conviction appeals. The Court found no error in the trial judge's admission of the juvenile witness's ERISP, no inadequacy in the reliability directions given to the jury, and no error in the ruling on the prior consistent statement. The late attempt by one appellant to add new grounds, including a challenge based on s 137 and a claim of unreasonable verdict, was addressed but did not alter the outcome.
On the Crown appeals against sentence, Hulme J acknowledged that the sentences imposed were manifestly inadequate. The non-parole periods ranged from 10 months to 1 year and 3 months, with the balance of each sentence suspended. However, the Court exercised its well-established discretion to decline to intervene.
The reasons for declining to increase the sentences included the significant passage of time since the August 2005 offences, the prospects of rehabilitation identified in pre-sentence assessments, the fact that at least two of the offenders appeared to have constructively rebuilt their lives since the offending, and the risk of harm to the community that would result from now imposing heavier penalties. The Court found that little positive would be achieved by resentencing at that stage.
Orders Made
- Each appeal against conviction dismissed
- Each Crown appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that, even where Crown sentence appeals are found to have merit, the court retains a discretion to dismiss them where the passage of time, rehabilitation prospects, and community interests weigh against intervention.
- Admissibility of a juvenile witness's ERISP under the Evidence Act 1995 was upheld, with no error identified in the trial judge's exercise of the s 138 discretion.
- Jury directions on the potential unreliability of a witness's recorded interview, given under s 165 of the Evidence Act 1995, were found to be adequate in the circumstances.
- In dismissing the conviction appeals, the Court found the verdicts were properly open to the jury on the evidence, including eyewitness accounts and police observations made at or near the scene shortly after the offence.
- The judgment illustrates that procedural delay between conviction and appeal, particularly where it spans multiple years, can be a significant factor when a court exercises its discretion on Crown sentence appeals.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 137, 138, 165
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
- Criminal Appeal Rules, r 25A
Cases:
No specific cases were cited in the portions of the judgment provided.