Al-Salmani v R [2023] NSWCCA 83

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Al-Salmani v R [2023] NSWCCA 83 Hearing dates: 10 March 2023 Date of orders: 17 April 2023 Decision date: 17 April 2023 Before: Bell CJ at [1]; Walton J at [123]; Davies J at [124] Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIMINAL PROCEDURE – trial – jury – whether jury was free to deliberate without time pressure – whether denial of procedural fairness – whether trial judge ought to have ruled on application to discharge the jury or considered the possibility of adjourning the trial - where multiple jurors discharged – where length of trial prolonged – where trial took place in period leading up to Christmas – where sitting hours were extended - where trial judge directed jury that they should not feel pressured to reach a verdict – where verdict was returned in less than two hours EVIDENCE – witness evidence – cross-examination – whether failure to comply with the rule in Browne v Dunn (1893) 6 R 67 – whether breach of prosecutor's duty to present the whole case and call all relevant evidence – where evidence adduced that handbrake of vehicle was engaged following collision – where Crown's case was that handbrake was not engaged at the time of the collision – where first responders to collision were not questioned about whether they had applied the handbrake – where allegation that first responders might have applied handbrake arose in cross-examination of Crown's expert EVIDENCE – witness evidence – expert evidence – s 79(1), Evidence Act 1995 (NSW) – whether expert opinion was not wholly or substantially based on specialised knowledge based on training, study or experience – where opinions were not objected to at first instance EVIDENCE – witness evidence – cross-examination – s 103, Evidence Act 1995 (NSW) – whether cross-examination of expert as to their credibility without leave gave rise to a miscarriage of justice – where questions were objected to – where trial judge directed the jury to disregard the questions CRIMINAL PROCEDURE – trial – whether cumulative effect of multiple irregularities deprived the accused of a fair trial – where irregularities of a different character – where irregularities individually did not give rise to a miscarriage of justice Legislation Cited: Crimes Act 1900 (NSW) s 52A(2) Evidence Act 1995 (NSW) ss 79(1), 103 Cases Cited: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 Anderson v R (2010) 202 A Crim R 68; [2010] NSWCCA 130 Browne v Dunn (1893) 6 R 67 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 El Hassan v R [2007] NSWCCA 148 Fadel v R (2017) 94 NSWLR 670; [2017] NSWCCA 134 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 Hofer v The Queen (2021) 395 ALR 1; [2021] HCA 36 Issakidis v R (2019) 379 ALR 292; [2019] NSWCCA 302 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57 Miller v The Queen [2015] NSWCCA 206 Montgomery v The Queen [2013] NSWCCA 73 Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 R v Ahola (No 6) [2013] NSWSC 703 R v Black (1993) 179 CLR 44; [1993] HCA 71 R v Ireland (1970) 126 CLR 321 at 331; [1970] HCA 21 R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259 R v Tangye (1997) 92 A Crim R 545 Scaysbrook v R [2022] NSWCCA 6 Trieu v R [2012] NSWCCA 169 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: Mouhimen Al-Salmani (Applicant) The Crown (Respondent) Representation: Counsel: R Rodger (Applicant) S Traynor (Respondent)