Citation: SKAF, Mohammed - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 181
Court: Supreme Court of New South Wales
Date: 12 March 2013
Judge(s): Beech-Jones J
Background
The applicant was convicted of four offences arising from events on 30 August 2000, comprising two counts of detaining a complainant (Miss C) for sexual advantage and two counts of aggravated sexual intercourse without consent. He was tried jointly with his brother and two others. Following a series of appeals and a retrial on a separate offence, the combined effect of his sentences extended to January 2024, with first parole eligibility in January 2018.
The applicant sought an inquiry into his convictions under s 78 of the Crimes (Appeal and Review) Act 2001, asking the Supreme Court to refer the matter to the Court of Criminal Appeal to be dealt with as an appeal. Three distinct grounds were advanced in support of the application.
This decision was published concurrently with a related judgment refusing an identical style of application brought by the applicant's co-convicted brother (Application of Bilal Skaf [2013] NSWSC 45). Beech-Jones J directed that the two decisions be read together.
Legal Issues
- Whether the reliability of Miss C's evidence was compromised by her disclosure that her recollection derived from dreams and flashbacks experienced after the assault
- Whether Miss C's identification of the applicant from a photoboard was unreliable for the same reason
- Whether the Crown's failure to disclose, prior to trial, that fingerprint evidence had been obtained from the scene raised a doubt or question as to the applicant's guilt
- Whether medical evidence regarding Miss C's injuries was inconsistent with her account in a way that raised doubt about the convictions
Decision
On the first two grounds, Beech-Jones J rejected the contention that Miss C's recollection was unreliable because it was based on dreams and flashbacks. The relevant parts of her evidence were strongly corroborated by independent evidence, and the argument rested on an unsafe assumption that her entire recollection was exclusively derived from those dreams and nightmares. These grounds were refused for the same reasons given in the concurrent Bilal Skaf application.
On the non-disclosure ground, the court accepted for the purposes of the application that fingerprint evidence taken from the Marion Street carpark toilet block should have been disclosed to the defence before trial, but was only revealed when a police officer volunteered its existence during the 2002 trial itself. However, the court found this did not produce any sense of unease or disquiet about the applicant's guilt. Whatever the outcome of any fingerprint analysis, it could not have affected the jury's deliberations. The court noted that the complete absence of any protest or even query from the defence when the evidence was raised at trial reinforced this conclusion.
On the medical evidence ground, raised in the applicant's reply submissions, the court considered an unsigned expert certificate from Dr Nittis commenting on an earlier medical report about Miss C's injuries. The court found the report was not inconsistent with Miss C's account. The most favourable aspect of the report for the applicant was Dr Nittis's statement that she was "surprised" the complainant could have been assaulted as described and emerge essentially unscathed. The court held that nothing in the report suggested the described assault was impossible or even unlikely.
Across all grounds, the court found that none of the matters raised a doubt or question as to the applicant's guilt within the meaning of the Review Act, and the application was refused.
Orders Made
- The application under s 78 of the Crimes (Appeal and Review) Act 2001 was refused.
Key Takeaways
- An application for a post-conviction inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 requires the court to identify a doubt or question as to the applicant's guilt; strong independent corroboration of a complainant's evidence can defeat a challenge to that evidence's reliability even where its source is said to be dreams or flashbacks.
- The assumption that a complainant's recollection derived exclusively from dreams or flashbacks, rather than from the underlying events, was characterised as unsafe where corroborating evidence independently established the relevant facts.
- A Crown failure to disclose fingerprint evidence prior to trial did not automatically raise doubt about a conviction. The court examined whether the undisclosed material could have affected the jury's deliberations, and found it could not have in the circumstances.
- Medical evidence that a complainant sustained minimal or no physical injury does not, without more, raise a doubt about guilt where the medical expert acknowledges that absence of injury following sexual assault is not unusual.
- In dismissing the application, the court treated the concurrent Bilal Skaf decision as directly applicable to overlapping grounds, illustrating that post-conviction inquiry applications involving co-accused raising substantially identical arguments may be resolved by reference to each other.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(1)(b)
- Criminal Appeal Act 1912 (NSW)
Cases
- Application of Bilal Skaf [2013] NSWSC 45
- R v Chami, M. Skaf, Ghanem, B. Skaf [2004] NSWCCA 36
- R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; 60 NSWLR 86
- R v Mohammed Skaf [2005] NSWCCA 298
- R v Bilal Skaf; R v Mohammed Skaf [2006] NSWSC 394
- Bilal Skaf v R; Mohammed Skaf v R [2008] NSWCCA 303