Skondin v R [2005] NSWCCA 417

New South Wales Court of Criminal Appeal

CITATION: Skondin v R [2005] NSWCCA 417

HEARING DATE(S): 28 November 2005

JUDGMENT DATE: 8 December 2005

JUDGMENT OF: Studdert J at 1; Whealy J at 85; Howie J at 86

DECISION: Appeal allowed; the verdict of guilty is quashed absolutely; no new trial is ordered.

CATCHWORDS: Criminal law - failure to give notice of alibi in prescribed period - leave to introduce alibi evidence refused - whether trial miscarried - whether verdict of jury reasonable - whether trial miscarried through intervention of trial judge and restriction of cross examination.

LEGISLATION CITED: Criminal Procedure Act, s 150

The Queen v Apostilides (1984) 154 CLR 563 M v The Queen (1994) 181 CLR 487 CASES CITED: Jones v The Queen (1997) 191 CLR 439 R v Hasenkamp (unreported, NSWCCA, 24 February 1998)

PARTIES: Mark Shane Skondin v Regina

FILE NUMBER(S): CCA 2005/500

M. Ramage QC (Applicant) COUNSEL: D. Frearson SC (Crown)

C. Jeffreys (Applicant) SOLICITORS: S. Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0453

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/500

STUDDERT J WHEALY J HOWIE J

Thursday 8 December 2005 MARK SHANE SKONDIN v REGINA Judgment 1 STUDDERT J: The appellant, Mark Shane Skondin, appeals against his conviction for an offence of malicious wounding. Following conviction the appellant was sentenced to a fixed term of imprisonment of three years, which sentence has now been served. The appeal is an appeal against conviction only. 2 Denis Lovric (the victim) was stabbed and sustained multiple injuries involving his kidney, his spleen and his liver. The penetrating injury affected both sides of the victim's stomach, both sides of his colon and his diaphragm. The stabbing occurred in Arthur Park, Kings Cross on the night of 12 October 2002. 3 The real issue at the appellant's trial was whether or not he was the attacker. The victim identified the appellant as such and the Crown also relied upon a DVD surveillance recording movement at the doorway of a newsagency, in which recording the victim asserted, and the jury was invited to conclude, a person who appeared was the appellant. According to the victim, he entered that newsagency after meeting the appellant in the street and shortly before he was stabbed. 4 The appellant gave evidence at his trial to the effect that he knew the victim, but he did not stab him. He denied attending Arthur Park on the day in question. As to the DVD footage, he was unable to say whether he was shown in the footage or not. 5 Whilst the central issue at the trial was a narrow one, namely was the appellant the attacker, it is submitted that the trial miscarried for a number of reasons recorded in amended grounds of appeal.