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Court of Criminal Appeal 7 April 2004

REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 revised - 29

[2004] NSWCCA 74

Sexual offencesAssault & violence
CRIMINAL APPEAL SEPARATE TRIAL APPLICATIONS EVIDENCE OF PRIOR CONVICTIONS WHETHER GOOD CHARACTER HAD BEEN RAISED IDENTIFICATION EVIDENCE DIRECTIONS ON IDENTIFICATION

Citation: Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74
Court: New South Wales Court of Criminal Appeal
Date: 7 April 2004
Judge(s): Mason P, Wood CJ at CL, Sully J

Background

Three appellants were convicted following a joint trial in the District Court before Finnane DCJ on charges arising from events at Northcote Park, Greenacre, on the evening of 10 August 2000. The charges involved kidnapping and multiple counts of sexual assault committed upon two female Year 12 students, referred to as Ms F and Ms P. The complainants had been approached at Chatswood shopping centre by a group of males, one of whom offered marijuana and a lift home. They were transported to the park in a white van, with a second group following in a red car, and were there subjected to a series of forced sexual acts.

The first appellant was convicted of 14 counts involving both complainants. The second appellant was convicted of 10 counts involving both complainants. The third appellant was convicted of counts involving Ms P. All three appealed against their convictions on multiple grounds.

The appeals raised a broad range of issues concerning trial fairness, the admissibility of various categories of evidence, the adequacy of jury directions, and whether the conduct of one co-accused's counsel had caused a miscarriage of justice for another.

  • Whether evidence of the first appellant's prior criminal convictions was properly admitted, and whether the jury was properly directed as to its use
  • Whether a doctor's opinion that his medical findings were "consistent with" the histories given by the complainants was admissible under the Evidence Act 1995
  • Whether cross-examination of the first appellant by co-accused's counsel, and that counsel's closing address, caused a miscarriage of justice
  • Whether the trial judge erred in admitting photoboard identification evidence and in directing the jury about the reliability of such evidence
  • Whether the trial judge gave adequate directions regarding the failure of accused persons to testify, and whether those directions infringed s 20(2) of the Evidence Act 1995
  • Whether the verdicts were unreasonable or unsupported by the evidence

Decision

Prior convictions and character evidence (first appellant): The Court found no appellable error in the trial judge's rulings admitting evidence of the first appellant's criminal history, and in concluding that the probative value of that evidence outweighed the danger of unfair prejudice. The Court also found that, because the first appellant's counsel had effectively agreed to a proposed direction that the criminal history went to credit, the absence of any further redirection request meant no miscarriage occurred.

Medical opinion evidence: The Court confirmed that the doctor's evidence that his examination findings were "consistent with" the complainants' histories offended s 102 of the Evidence Act 1995 and should not have been led. Such evidence was entirely neutral in fact, yet had the effect of improperly bolstering the complainants' credibility. The Court noted that any Crown practice of routinely leading this kind of evidence, regardless of whether the defence objects, should cease. Despite this, the ground did not succeed: no objection had been taken at trial, and given the nature of the offences charged, the jury could not have placed meaningful weight on the medical evidence, which was not referenced in the summing-up.

Conduct of co-accused's counsel: The Court found that cross-examination of the first appellant by the second appellant's counsel, which raised the allegation of a threatening gesture, was relevant because it went to the first appellant's credibility, a matter of direct concern to the second appellant. The trial judge's refusal to discharge the jury following counsel's closing address was also upheld. The judge had identified the logical fallacy in the submissions and indicated he would address it in firm terms in his directions.

Identification evidence and other grounds: The Court rejected the arguments that the trial judge erred in admitting photoboard identification evidence or in his directions on identification. The challenges to directions on the failure to testify, the adequacy of unreliability warnings, and the reasonableness of the verdicts were all dismissed. In relation to the third appellant's convictions, the Court found the jury was well entitled to conclude beyond reasonable doubt that he knew the complainant was not consenting.

Orders Made

  • Each appeal against conviction dismissed.

Key Takeaways

  • Medical evidence that examination findings are "consistent with" a complainant's history of assault constitutes impermissible opinion evidence under s 102 of the Evidence Act 1995. Such evidence is neutral in substance yet carries a risk of improperly bolstering credibility, and the Court of Criminal Appeal stated plainly that any Crown practice of routinely adducing it should stop.

  • Failure to object at trial to inadmissible evidence remains a significant factor in any subsequent appeal. The Court applied the curative discretion and declined to uphold the medical evidence ground, noting that no objection had been taken and no miscarriage could be identified on the facts.

  • Where co-accused are tried jointly, cross-examination of one accused by another's counsel may properly traverse serious allegations of misconduct where those allegations bear directly on credibility, a matter that each accused has a legitimate interest in testing.

  • A trial judge's refusal to discharge a jury following prejudicial submissions by co-accused's counsel will not constitute appealable error where the judge identifies the problem and undertakes to address it firmly in directions to the jury.

  • Sufficient evidence existed to sustain convictions on the element of knowledge of non-consent where the complainant was isolated in unfamiliar surroundings, surrounded by a group of males demanding sexual acts, and was physically forced to comply after she refused and attempted to leave.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), 192(2)
- Justices Act 1902 (NSW), ss 75B, 100AB

Cases:
- R v RTB [2002] NSWCCA 104
- R v Dann [2000] NSWCCA 185
- Domican v The Queen (1992) 173 CLR 555
- Azzopardi v The Queen (2001) 205 CLR 50
- RPS v The Queen (2000) 199 CLR 620
- Weissensteiner v The Queen (1993) 178 CLR 217
- Papakosmas v The Queen (1999) 196 CLR 297
- Festa v The Queen (2001) 208 CLR 593
- Dyers v The Queen (2002) 210 CLR 285
- Dhanhoa v The Queen (2003) 77 ALJR 1433
- R v Bartle & Ors [2003] NSWCCA 329
- Osland v The Queen (1998) 197 CLR 316
- Webb v The Queen; Hay v The Queen (1994) 181 CLR 41
- Jones v Dunkel (1959) 101 CLR 298
- Doney v The Queen (1990) 171 CLR 207