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Court of Criminal Appeal 24 March 2025

Iskandar v R

[2025] NSWCCA 33

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION LENGTHY DELAY IN INSTITUTING APPEAL “HONOUR KILLING” RELIGIOUS AND CULTURAL STEREOTYPES CROSS

Citation: Iskandar v R [2025] NSWCCA 33
Court: Court of Criminal Appeal, New South Wales
Date: 24 March 2025
Judges: Hamill J (primary judgment), N Adams J (separate concurring judgment), Sweeney J (agreeing with Hamill J)

Background

The applicant was convicted in November 2011 of the murder of his mother's lover, committed in Leichhardt in February 2010. The prosecution alleged that the applicant and his father acted together in a joint criminal enterprise, killing the victim by bashing him with a hammer and stabbing him. The prosecution described the killing as motivated by the victim's affair with the applicant's mother, characterising it as an "honour killing."

At trial, the prosecutor used the "honour killing" label in her opening and closing addresses and cross-examined the applicant about his Islamic religious beliefs and Islam's approach to adultery. The applicant gave evidence admitting he was present at the scene but denied involvement in a joint enterprise, claiming he acted spontaneously in defence of his father or himself.

The applicant was convicted of murder and sentenced to 25 years' imprisonment with an 18-year non-parole period. He filed a notice of appeal in July 2024, more than 12 years after his conviction, and sought leave to appeal out of time. The respondent opposed the extension but acknowledged that prospects of success was a relevant consideration.

  • Whether the prosecutor's use of the "honour killing" characterisation and cross-examination on religious beliefs constituted improper conduct that caused a miscarriage of justice.
  • Whether the trial judge's directions on circumstantial evidence were inadequate for failing to give a specific Shepherd direction treating motive as a necessary link in the chain of reasoning to guilt.
  • Whether inhumane prison transport conditions and resulting sleep deprivation during the trial caused a miscarriage of justice.
  • Whether leave to appeal should be granted more than 12 years out of time.

Decision

Ground 1: Prosecutor's conduct and "honour killing" framing

The Court held that the prosecutor's characterisation of the murder as an "honour killing" connected to the applicant's religion, and the cross-examination on Islamic beliefs regarding adultery, was unnecessary and regrettable. Hamill J, with whom Sweeney J agreed, found the conduct was capable of amounting to a trial irregularity. However, it did not produce a miscarriage of justice because it had no meaningful or potential impact on the outcome. Three factors supported this conclusion: the evidence of motive would have been before the jury regardless, through the applicant's own admissions; the applicant denied knowing of the affair before the killing, which was the real motive issue; and defence counsel made a deliberate forensic choice not to object, instead using the "honour killing" narrative to argue that the motive applied to the father alone, thereby supporting the defence theory that the father acted alone.

N Adams J reached the same result by a different route, finding that the conduct did not amount to an irregularity at all. Her Honour identified four reasons: trial counsel embraced the motive framing rather than objecting; the trial judge expressed no concern; the applicant's admissions to a third party (Mr Lau) independently placed the motive before the jury; and the term "honour killing" was used only six times across a four-week trial. All three judges agreed that no expert evidence on cultural or religious tendency was needed, and that such evidence is generally inadmissible as problematic.

Even if the conduct had amounted to a miscarriage under s 6(1) of the Criminal Appeal Act 1912 (NSW), the proviso applied. The prosecution case was described as "strong to the point of being overwhelming," based on eyewitness testimony, forensic evidence, direct admissions, and evidence of consciousness of guilt including flight and fabrication of a false alibi.

Ground 2: Directions on circumstantial evidence

The Court refused leave to appeal on this ground. Hamill J found that on no sensible view of the evidence was the prosecution's motive case a necessary link in the chain of reasoning to guilt, such that a specific Shepherd direction was required. The directions actually given were orthodox, clear, and unimpeachable. Critically, no application for such a direction had been made at trial.

Ground 3: Prison conditions and sleep deprivation

The Court acknowledged that the transport arrangements from Parklea prison and their effect on the sleep of accused persons during trial raise genuine and serious fairness concerns. However, the appeal failed on the facts. The trial judge had approached the issue with sensitivity, and counsel raised it on several occasions, obtaining adjournments when requested. The evidence on appeal did not establish that the applicant's treatment caused a miscarriage of justice.

Orders Made

  • Time extended in which to bring the appeal.
  • Leave to appeal granted on grounds 1 and 3.
  • Leave to appeal refused on ground 2.
  • Appeal dismissed.

Key Takeaways

  • Framing a murder as an "honour killing" linked to an accused's religion in a prosecution opening, closing address, and cross-examination was found to be unnecessary and regrettable, but did not amount to a miscarriage of justice where the motive evidence was independently before the jury through the accused's own admissions and defence counsel chose to deploy the framing for forensic advantage.

  • Evidence of cultural or religious tendency is generally inadmissible in NSW criminal proceedings, and no expert evidence on such matters was needed to support a motive case of this kind.

  • A Shepherd direction (treating a particular factual finding as a necessary intermediate step in reasoning to guilt) is not required simply because the prosecution advanced a specific motive theory; the direction is only necessary where that fact truly forms an essential link in the chain of reasoning.

  • In dismissing the appeal, the Court applied the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) on the alternative basis that the prosecution case was so strong that no substantial miscarriage actually occurred, notwithstanding the procedural irregularity.

  • Difficult transport and prison conditions causing sleep deprivation during trial can in principle give rise to a miscarriage of justice, but the Court confirmed that where a trial judge responds with sensitivity and grants adjournments when the issue is raised, the threshold for establishing a miscarriage will not easily be met.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 41, 55, 137
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
- NSW Barristers Rules 2014 (NSW)
- Prosecution Guidelines (NSW)
- Racial Discrimination Act 1975 (Cth)
- International Convention on the Elimination of All Forms of Racial Discrimination, art 5

Cases
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- MDP v The King [2024] HCATrans 84 (High Court, reserved)
- Brawn v The King [2024] HCATrans 85 (High Court, reserved)
- R v Maglovski (No 2) [2013] NSWSC 16
- R v Kulwinder Singh (No 1) [2019] NSWSC 1000
- Andrew Iskandar v R [2013] NSWCCA 235
- R v Merritt [1999] NSWCCA 29
- Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20