Citation: SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45
Court: Supreme Court of New South Wales
Date: 12 March 2013
Judge: Beech-Jones J
Background
The applicant was convicted in June 2002 of serious sexual assault offences committed on 30 August 2000, following a joint trial in the District Court. He was tried alongside his brother and two others. The jury found him guilty on six counts, including aggravated sexual intercourse without consent in company and detention for sexual advantage, and he had previously pleaded guilty to two further counts. After multiple appeals, he was serving an aggregate sentence with an effective non-parole period of 14 years.
The applicant brought this application under section 78 of the Crimes (Appeal and Review) Act 2001, seeking a referral to the Court of Criminal Appeal for the matter to be dealt with as an appeal. The application was heard alongside a related (but separately decided) application by his co-accused brother.
The central controversy arose from evidence given by the complainant at the 2002 trial about how she came to recall the events. The applicant argued that she had described recovering her memories through dreams or nightmares, and that expert evidence from a subsequent retrial of a co-accused demonstrated that memories recalled in this way are unreliable.
Legal Issues
- Whether new expert evidence about the unreliability of dream-based memory recall raised a doubt or question as to the applicant's guilt, sufficient to warrant referral under section 79 of the Review Act
- Whether the trial judge was required to give a direction to the jury about the unreliability of evidence derived from dreams, and whether the failure to do so raised any doubt about the conviction
- Whether the prosecution breached its duty of disclosure by failing to inform the defence, before the 2002 trial, that the complainant had told police she recalled the relevant events in a dream
Decision
Expert evidence on dream-based recall: Beech-Jones J rejected the argument that the expert evidence raised the necessary doubt. The expert opinion had been given in a co-accused's retrial, in circumstances where that complainant's evidence was entirely uncorroborated. In the applicant's case, the position was materially different: the portions of the complainant's evidence implicating him were strongly corroborated by telephone records placing him at the scene and by his own admissions. Even if the complainant had initially recalled his presence through a process of dreaming, the accuracy of that recollection was substantially confirmed by independent evidence.
His Honour also rejected the factual premise underpinning the expert opinion. The assumption that the complainant's evidence was derived exclusively from dreams was based on an overly literal reading of her description of how she recalled the events. The court was not satisfied that she was merely reciting the contents of dreams rather than recounting genuine memory.
Direction on unreliability of dream-based evidence: No direction about the unreliability of dream-derived evidence had been sought at trial, and his Honour held that no such direction was required in the circumstances. This ground did not raise a doubt or question as to the applicant's guilt.
Prosecution disclosure: His Honour accepted that a police officer was aware before the 2002 trial that the complainant had said the events in her second statement came to her in a dream. However, it was not established that the officer knew, or ought to have known, that this was potentially exculpatory material. The significance of the information only became apparent with the later expert evidence, which itself rested on an overly literal interpretation of the complainant's account. Applying the test from R v Reardon (No 2), the court was not satisfied that the prosecution had failed to disclose material that could reasonably have been perceived to bear on the complainant's credibility. The failure to disclose did not create any sense of unease or disquiet about the applicant's guilt.
Orders Made
- The application was refused.
Key Takeaways
- Corroboration by independent evidence can be decisive in applications of this kind: where a complainant's recollections implicating the applicant were confirmed by telephone records and the applicant's own admissions, expert evidence about the general unreliability of dream-derived memories did not raise the doubt required under section 79 of the Review Act.
- A court applying section 78 of the Review Act will scrutinise the factual assumptions underlying expert opinion. Here, the premise that the complainant's evidence was wholly derived from dreams was rejected as an overly literal reading of her testimony.
- Under the prosecution's duty of disclosure, a failure to disclose information is only problematic if the material could reasonably have been perceived by the prosecution to bear on the witness's credibility. The test, drawn from R v Reardon (No 2), requires a "sensible appraisal" at the time, not hindsight informed by subsequently available expert opinion.
- No direction about the unreliability of evidence recalled through dreams was required in these circumstances, particularly where no such direction had been sought at trial.
- Referring to the companion decision (Application of Mohammed Skaf [2013] NSWSC 181), the Supreme Court's analysis confirms that where two applicants raise overlapping grounds, the strength of corroborating evidence specific to each applicant will be assessed individually.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), s 475
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 4(1)(c)
- Director of Public Prosecutions Act 1986 (NSW), s 15A
Cases:
- 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 Bilal Skaf [2005] NSWCCA 297
- Bilal Skaf v R; Mohammed Skaf v R [2008] NSWCCA 303
- R v G [2005] NSWCCA 291
- R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454
- Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116
- Eastman v Director of Public Prosecutions [2003] HCA 28; 214 CLR 318
- Mallard v R [2005] HCA 68; 224 CLR 125
- Grey v R [2001] HCA 65; 75 ALJR 1708
- Skaf v R; Hajeid v R; Ghanem v R [2005] HCATrans 744
- R v Bilal Skaf, R v Mohammed Skaf [2006] NSWSC 394
- Holland, Peter James, Application of [2008] NSWSC 251
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- R v Tillott (1995) 38 NSWLR 1
- R v Jenkyns (1993) 32 NSWLR 712
- R v Eishauer (1997) 96 A Crim R 489
- Rendell, Application of (1987) 32 A Crim R 243
- R v McFelin [1985] 2 NZLR 750