R v Mahmoud Dib [2002] NSWCCA 409

New South Wales Court of Criminal Appeal

CITATION : R v Mahmoud Dib [2002] NSWCCA 409 FILE NUMBER(S) : CCA 60448 of 2002 HEARING DATE(S) : 03/10/02 JUDGMENT DATE : 3 October 2002

Regina PARTIES : v Mahmoud Dib JUDGMENT OF : Meagher JA at 1; Sully J at 8; Sperling J at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/11/0542 LOWER COURT JUDICIAL Hock DCJ OFFICER :

COUNSEL : A: M J Doris & A Morrison R: W Dawe QC SOLICITORS : A: Galloways R: S E O'Connor CATCHWORDS : Application for leave under s 5F of the Crimes Act 1900 - whether the trial judge's discretion miscarried - appeal dismissed. LEGISLATION CITED : s 5F Crimes Act 1900 DECISION : Application dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA 60448 of 2002

MEAGHER JA SULLY J SPERLING J

Thursday, 3 October 2002 REGINA v MAHMOUD DIB Judgment 1 MEAGHER JA: This matter arises out of a joint trial of Mr Dib and a co-accused for robbery alleged to have taken place at an ATM machine. There is in existence a video photograph of the incident. 2 It soon became apparent that in the case of Mr Dib the only issue was whether a person photographed in the video was in fact Mr Dib, and nothing else. At an early stage this was alleged by counsel for Mr Dib and conceded by both the Crown Prosecutor and her Honour. The trial apparently has been going for three weeks and is still continuing. 3 This application is for an order for leave under s 5F of the Crimes Act against orders of her Honour refusing a discharge or a stay. 4 The first discharge application was because of an "in court" identification given by a witness, which was neither anticipated nor solicited, and the Crown concedes that this identification was impermissible. The application for discharge was refused as her Honour was of the view any prejudice could be dealt with by appropriate instruction to the jury. 5 The second discharge application was made after the Crown Prosecutor put to a witness the question, "Did you owe Mr Dib any money", a question which perhaps should never have been put as it pre-supposes knowledge of Mr Dib by the witness. However, again her Honour seemed to be of the view that any possible prejudice would be dissolved by appropriate instructions. 6 In my view this application should be dismissed. If the trial, which is now continuing, results in an acquittal of Mr Dib, the problem no longer exists. If it results in a conviction, the matters currently complained of may constitute grounds of appeal. In any event, it is impossible for us to say whether or not her Honour was correct in her view that any prejudice could be repaired by appropriate directions and, therefore, impossible for us to conclude that her Honour's discretion miscarried. 7 In my view the application should be dismissed. 8 SULLY J: I agree. 9 SPERLING J: I also agree.