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Court of Criminal Appeal 6 May 2019

Kaddour v R

[2019] NSWCCA 90

Homicide
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION APPELLANT FOUND GUILTY OF MURDER SENTENCED TO 20 YEARS WITH A NON PAROLE PERIOD OF 15 YEARS

Citation: Kaddour v R [2019] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 6 May 2019
Judge(s): Bathurst CJ, Harrison and Davies JJ

Background

The appellant was convicted of the murder of a man at a Housing Department unit in Granville in August 2013. The victim died from extensive blunt force injuries, including skull fractures, brain damage, multiple rib fractures and a ruptured eyeball. A co-accused, Daniel Azar, had separately pleaded guilty to the manslaughter of the same victim.

The Crown case rested heavily on the testimony of Mohamed El-Chami, a mutual acquaintance who was present during events leading up to and following the assault. El-Chami's evidence placed the appellant at the scene. Forensic evidence, including bloodied palm prints left by the appellant on a metal pole and other surfaces in the unit, corroborated parts of that account. The appellant had also lied to police in his recorded interview, initially denying he had been at the unit.

The appellant was sentenced to 20 years' imprisonment with a non-parole period of 15 years. He appealed his conviction on four grounds, each focused on how El-Chami's evidence was handled at trial.

  • Whether the jury's verdict was unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW), given the reliance on a single witness whose evidence contained contradictions.
  • Whether the trial judge erred in failing to direct the jury that El-Chami's prior written statement, which recorded admissions purportedly made by the appellant, was inadmissible as proof of the truth of those admissions under s 60(3) of the Evidence Act 1995 (NSW).
  • Whether the trial judge erred in granting leave to cross-examine El-Chami as an unfavourable witness under s 38 of the Evidence Act 1995, in circumstances where the evidence could go only to the witness's credit rather than as substantive proof of the admissions.
  • Whether the trial judge erred in directing the jury that it could only consider El-Chami's evidence unreliable under s 165 of the Evidence Act 1995 if it first concluded he had been criminally involved in the offence.

Decision

Ground 1: Unreasonable verdict. The Court of Criminal Appeal granted leave to appeal on this ground but dismissed it. The court reviewed the whole of the evidence, including El-Chami's testimony, the forensic fingerprint and bloodstain evidence, CCTV footage, and the appellant's own admissions at trial that he had lied to police. The court found it could not have a reasonable doubt as to the appellant's guilt. The jury was entitled to accept those parts of El-Chami's evidence it found credible, and the evidence as a whole provided sufficient support for the verdict.

Grounds 2 and 3: Admissibility and use of El-Chami's prior statement. The appellant argued that the prior statement should not have been admitted as proof of the truth of the admissions it recorded, and that cross-examination of El-Chami under s 38 should not have been permitted. The court examined the operation of ss 59, 60, 81 and 82 of the Evidence Act 1995 and found no reversible error. El-Chami had in court confirmed the truth of the prior statement, which affected how s 60(3) operated. The court also found the trial judge had adequately considered the factors under s 192 when granting leave under s 38, even though s 192 was not explicitly named, because the relevant considerations were clearly addressed in argument during the trial.

Ground 4: The s 165 direction on witness reliability. The appellant contended the trial judge wrongly limited the s 165 unreliability direction to circumstances where the jury found El-Chami was criminally involved. The court observed that trial counsel for the appellant had himself accepted that El-Chami was not criminally concerned in the events and had sought to rely on parts of El-Chami's evidence favouring the defence. No alternative direction was proposed at trial or on appeal. In those circumstances, the court found no error in the direction as given.

Orders Made

  • Leave to appeal granted in respect of ground 1.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a verdict relying substantially on a single witness is not unreasonable merely because that witness's evidence contains contradictions. The question remains whether, on the whole of the evidence, the jury could rationally reach a verdict of guilty.
  • Under s 60 of the Evidence Act 1995, where a witness subsequently confirms in court the truth of a prior out-of-court statement, that confirmation affects the extent to which the hearsay rule in s 59 and the restrictions in s 60(3) limit the use of that statement as proof of the matters stated.
  • A trial judge granting leave to cross-examine an unfavourable witness under s 38 need not expressly refer to s 192 of the Evidence Act 1995, provided the relevant discretionary factors are genuinely considered during the course of argument and the ruling.
  • Where trial counsel accepted that the witness was not criminally involved and actively sought to rely on parts of that witness's evidence, the court found no error in a s 165 unreliability direction that did not extend beyond criminal involvement as a trigger for applying the warning.
  • No error was established where an appellant fails to propose an alternative jury direction at trial and also fails to do so on appeal, particularly where the trial position was strategically inconsistent with the broader complaint raised on appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), ss 38, 59, 60, 81, 82, 165, 192

Cases:
- Dunks v R [2014] NSWCCA 134
- Edwards v The Queen (1993) 178 CLR 193
- Greenhalgh v R [2017] NSWCCA 94
- Kanaan v R [2006] NSWCCA 109
- Lee v The Queen (1998) 195 CLR 594
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v El-Chami [2016] NSWSC 445
- R v MDB [2005] NSWCCA 354
- R v Reardon [2002] NSWCCA 203; (2002) 186 FLR 1
- R v RTB [2002] NSWCCA 104
- R v Selsby [2009] NSWCCA 381
- R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4