Citation: Regina v Chami, M Skaf, Ghanem, B Skaf [2004] NSWCCA 36 revised 29/04/2004
Court: NSW Court of Criminal Appeal
Date: 7 April 2004
Judges: Mason P, Wood CJ at CL, Sully J
Background
Four appellants were tried jointly in the District Court before Judge Finnane QC and a jury on charges arising from a series of sexual assaults committed in south-western Sydney on the evening of 30 August 2000. The complainant, an 18-year-old woman, was approached on a train and subsequently assaulted at multiple locations, including a car park toilet block, the Bankstown Trotting Club car park, and an industrial estate at Chullora. The appellants were each aged between 17 and 18 at the time of the offences.
All four were convicted at trial on most of the counts they each faced. Each appealed to the Court of Criminal Appeal, raising a range of grounds relating to the conduct of the trial, the admission of evidence, and the adequacy of the trial judge's directions to the jury.
Legal Issues
- Whether telephone intercept evidence, in which one co-accused made self-incriminating statements while the other listened sympathetically, was admissible against the listening co-accused
- Whether the trial judge's directions to the jury about that intercept evidence were adequate and accurate
- Whether the trial judge's directions on standard of proof, consciousness of guilt, complainant reliability, lies, and identification were correct
- Whether the jury's verdicts against any of the appellants were unreasonable or inconsistent with the evidence
- Whether any appellant was entitled to a separate trial
Decision
The Court dismissed the appeals of three of the four appellants. For Mahmoud Chami, the eight grounds of appeal all failed. The Court found no error in the way the trial judge had conducted the trial. The appeals of Bilal Skaf and Mohammed Skaf similarly failed across their respective grounds, which included challenges to jury directions, alleged imbalance in the trial judge's conduct, and submissions that verdicts were unreasonable.
On the identification ground raised by Bilal Skaf, the Court distinguished the case from Pitkin v The Queen, where a conviction had rested solely on a witness saying an offender "looked like" the person in a photograph. Here, the complainant's evidence was stronger: she identified features such as distinctive eyebrows and explained her residual uncertainty by reference to the poor quality of the photograph. There was also additional corroborating evidence against Bilal Skaf.
Mohamed Ghanem's appeal succeeded on two linked grounds concerning telephone intercept evidence. While Chami was being interviewed by police, he made two intercepted phone calls to Ghanem in which he made self-incriminating statements about himself. The trial judge admitted that evidence as relevant to Chami's consciousness of guilt but then went further, suggesting it showed a "close association" or "deep interest" between the two men relevant to the case against Ghanem. The Court of Criminal Appeal held this was wrong. Ghanem had listened sympathetically to a friend in difficulty but had not adopted any of Chami's inculpatory statements or implicated himself. Inferring guilt from this association was tantamount to guilt by association.
The Court further found that the Crown had, in its address to the jury, misrepresented what was said in those telephone calls. That made it all the more important for the trial judge to direct the jury not to use the intercept evidence to infer consciousness of guilt on Ghanem's part. No such direction was given. The combination of wrongly admitted evidence and inadequate directions entitledGhanem to a new trial.
Orders Made
- Appeals against conviction of Mahmoud Chami, Bilal Skaf, and Mohammed Skaf: dismissed
- Mohamed Ghanem's appeal: allowed; conviction and sentence set aside; new trial ordered
Key Takeaways
- Intercepted telephone calls in which one co-accused makes self-incriminating statements do not become admissible against a second co-accused simply because that second person listened without objecting. The Court of Criminal Appeal held that a sympathetic ear, without adoption of or participation in the incriminating statements, does not constitute relevant evidence against the listener.
- Where evidence is admitted with a limiting instruction (here, consciousness of guilt against Chami only), a trial judge must not then reason in a way that effectively extends its use against another accused through concepts such as "close association."
- Insufficient or misdirected jury directions on how to use improperly admitted evidence can, particularly in combination with the admission error itself, constitute a miscarriage of justice sufficient to warrant a new trial.
- In dismissing the identification ground for Bilal Skaf, the Court confirmed that a qualified photo identification is not automatically insufficient to sustain a conviction; the strength of the overall evidence, including corroboration, must be assessed in context.
- A conviction based on a photo array identification requires careful analysis of the whole of the identification process. Where a witness explains residual uncertainty by reference to poor photograph quality rather than doubt about the person, that can remain probative when considered alongside other evidence.
Legislation and Cases Referenced
Legislation:
- Evidence Act, ss 20(2), 44, 135, 137
Cases:
- Pitkin v The Queen (1995) 69 ALJR 612
- Zoneff v The Queen (2000) 200 CLR 234
- Dhanhoa v The Queen (2003) 77 ALJR 1433
- Edwards v The Queen (1993) 178 CLR 193
- R v Markuleski (2001) 52 NSWLR 82
- R v Lucas [1981] QB 720
- Thomas v The Queen (1960) 102 CLR 581
- Green v The Queen (1971) 126 CLR 28
- R v Ho (2002) 130 A Crim R 545
- R v Li [2003] NSWCCA 386
- R v Burt [2003] NSWCCA 248
- R v Southammavong [2003] NSWCCA 312
- Bataillard v The King (1907) 4 CLR 1282
- R v Murray (1987) 11 NSWLR 12
- R v Reeves (1992) 29 NSWLR 109
- R v Sutton (1986) 5 NSWLR 697
- Peterson v The Queen (1979) 41 FLR 205