New South Wales Court of Criminal Appeal CITATION: Skaf, Bilal v R Skaf, Mohammed v R [2008] NSWCCA 303 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 20 June 2008 JUDGMENT DATE: 17 December 2008 JUDGMENT OF: McClellan CJ at CL; Hidden J; Howie J 1.Both appeals against conviction are dismissed 2.In relation to Bilal Skaf: (a) Leave to appeal against sentence is granted, the appeal is allowed, and the sentences passed by Mathews AJ are quashed. In lieu, the appellant is sentenced as follows: · On the second count, imprisonment for 15 years, commencing on 12 February 2021 and expiring on 11 February 2036, with a non-parole period of 9 years, expiring on 11 February 2030 DECISION: · On the third count imprisonment for 12 years, commencing on 12 February 2025 and expiring on 11 February 2037, with a non-parole period of 6 years, expiring on 11 February 2031 Thus, the appellant's total sentence will expire on 11 February 2037, and he will be eligible for release on parole on 11 February 2031 3. In relation to Mohammed Skaf: (a) Leave to appeal against sentence is granted and the appeal is allowed (b) The sentence passed by Mathews AJ is quashed and, in lieu, the appellant is sentenced to imprisonment for 12 years, commencing on 2 January 2012 and expiring on 1 January 2024, with a non-parole period of 6 years, expiring on 1 January 2018. Thus, the appellant's total sentence will expire on 1 January 2024, and he will be eligible for release on parole on 1 January 2018. CATCHWORDS: CRIMINAL LAW - jurisdiction, practice and procedure - adjournment, stay of proceedings or order restraining proceedings - stay of proceedings - pre-trial publicity and publicity during trial - whether proceedings should be permanently stayed - whether appellants received a fair trial - CRIMINAL LAW - evidence - evidentiary matters relating to witnesses and accused persons - identification evidence - direction to jury - adequacy of warning - whether trial judge erred in directing jury that they could use other evidence in Crown case to bolster identification evidence - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applications to reduce sentence - when granted Criminal Procedure Amendment (Evidence) Bill 2005 Criminal Procedure Act 1986 LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Domican v The Queen [1992] HCA 13; (1991-1992) 173 CLR 555 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Jago v District Court of New South Wales (1989) 168 CLR 23 R v Bilal Skaf [2005] NSWCCA 297 R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 R v Chami; R v Sheikh [2002] NSWCCA 136; (2002) 128 A Crim R 428 R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 CASES CITED : R v Ferguson; Ex parte A-G (Qld) [2008] QCA 227 R v Gilmore (1979) 1 A Crim R 416 R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 R v Razzak [2004] NSWCCA 62 R v Turner [2000] SASC 27; (2000) 76 SASR 163 Tarrant v R [2007] NSWCCA 124, (2007) 171 A Crim R 425 The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 Tuckiar v The King (1934) 52 CLR 335 Bilal Skaf (Appellant) PARTIES: Mohammed Skaf (Appellant) The Crown FILE NUMBER(S): CCA 2005/3067; 2005/3068 A Haesler SC/S Beckett (Bilal Skaf - appellant) COUNSEL: H Dhanji (Mohammed Skaf - appellant) D Arnott SC (Crown) Legal Aid Commission of NSW (Bilal Skaf) SOLICITORS: William O'Brien (Mohammed Skaf) Director of Public Prosecutions LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2005/1401 2005/1402 LOWER COURT JUDICIAL OFFICER: Mathews AJ LOWER COURT DATE OF DECISION: 28 July 2006 LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 394 IN THE COURT OF CRIMINAL APPEAL 2005/3067 2005/3068 McCLELLAN CJ at CL HIDDEN J HOWIE J WEDNESDAY 17 DECEMBER 2008 SKAF, Bilal v R SKAF, Mohammed v R Judgment 1 THE COURT: Bilal Skaf and Mohammed Skaf are brothers. They were convicted following trial on an indictment containing three counts. 2 Count 1 was in the following terms; Mohammed Skaf, [for that] whereas Bilal Skaf on 12 August 2000 at Greenacre in the State of New South Wales, in circumstances of aggravation, namely being in company with a number of other male persons, had sexual intercourse with MW without her consent, knowing she was not consenting thereto, [and] before that serious indictable offence was committed, namely, on 12 August 2000, at Greenacre in the State of New South Wales, did incite, move, procure, aid, counsel, hire and command Bilal Skaf to commit that serious indictable offence. 3 Counts 2 and 3 were in the following terms: Count 2: Bilal Skaf, on 12 August 2000 at Greenacre in the State of New South Wales, in circumstances of aggravation, namely, being in company with a number of other male persons, had sexual intercourse with MW without her consent, knowing she was not consenting thereto [in the first degree]; and Count 3: Bilal Skaf, on 12 August 2000 at Greenacre in the State of New South Wales, in circumstances of aggravation, namely, being in company with a number of other male persons, did have sexual intercourse with MW without her consent and knowing she was not consenting thereto [in the second degree]. 4 This was their second trial for these offences. 5 Count 2 related to the first offence against Bilal Skaf outlined above in respect of which Mohammed was charged as an accessory before the fact. In relation to count 3, Bilal Skaf was convicted of the offence in the second degree, for aiding and abetting the commission of an act of sexual intercourse with the complainant by another, unknown, offender. 6 Both appellants appeal against their conviction. They submitted that the trial judge erred in refusing a permanent stay of proceedings. A second ground, in which it was submitted that the trial judge erred in refusing a temporary stay, was not ultimately pursued. Counsel for the appellant Bilal Skaf accepted during the hearing of the appeal that, based on their submissions in relation to the first ground of appeal, no period of delay in the trial could have adequately resolved the problem. It was submitted that the extent of publicity was such that the appellants would never receive a fair trial. In addition Bilal Skaf submitted that the trial judge erred "in directing the jury that they could use other evidence in the Crown case to bolster the identification evidence" (ground 3). During the appeal a further ground of appeal was filed, being "that there was a miscarriage of justice because the pre-trial publicity and publicity during the trial meant that the appellants did not receive a fair trial" (ground 4). Both appellants also seek leave to appeal their sentences. 7 With respect to grounds 1 and 2 the carriage of the appeal was undertaken by counsel for Bilal Skaf. Mohammed Skaf submitted that, because before he could be found guilty of being an accessory, it was necessary for the jury to determine whether Bilal Skaf was guilty of count 2 on the indictment, the prejudice relied on by Bilal Skaf to found his submission that the proceedings should have been stayed applied equally to himself as to Bilal Skaf. It was submitted that because of the publicity given to these matters, and, in particular, the publicity to the effect that Mohammed Skaf and Bilal Skaf were members of a gang which participated together in rapes, the jury could not bring an unprejudiced mind to the question of Mohammed Skaf's guilt. The essential chronology 8 The alleged offences the subject of this appeal were committed on 12 August 2000. On 20 December 2001 Bilal Skaf was convicted in respect of offences of sexual assault relating to Ms A and Ms B which took place on 10 August 2000 at Greenacre. Between 29 April 2002 and 7 June 2002 Bilal Skaf stood trial in respect of offences relating to Ms C at Bankstown on 30 August 2000. 9 On 11 July 2002 Bilal Skaf and Mohammed Skaf were convicted in respect of offences concerning the present complainant. Bilal Skaf was sentenced to a total term of 55 years imprisonment with a non-parole period of 39 years. In respect of the offences the subject of the present appeal Bilal Skaf was sentenced to concurrent sentences of 20 years with a non-parole period of 9 years. 10 Subsquently, Finanne DCJ lifted suppression orders which allowed the media to identify Bilal Skaf and Mohammed Skaf by name. 11 Thereafter there was an appeal to the Court of Criminal Appeal which, inter alia, was concerned with irregularities which were said to have occurred at the trial for the offences the subject of the present appeal (R v Bilal Skaf, R v Mohammed [2004] NSWCCA 37; (2004) 60 NSWLR 86). The appeal was successful and the convictions of both appellants in relation to the sexual assault upon MW were quashed. Although the matters were listed for retrial on 3 February 2005, the Crown announced that there would be no further proceedings because the complainant had declined to give evidence. 12 In May 2005 the New South Wales Parliament enacted the Criminal Procedure Amendment (Evidence) Bill 2005 incorporating s 306A – s 306G to the Criminal Procedure Act 1986. This amendment allowed the evidence of a complainant in a sexual assault proceeding where a retrial had been ordered to be read to the jury as a record of the original evidence of the complainant. On 29 June 2005 the Director of Public Prosecutions determined that the trial should proceed utilising the amendments to the Criminal Procedure Act 1986. 13 In September 2005 an application for special leave was refused in the High Court. That application related to the offence on 10 August 2000. In that same month the Court of Criminal Appeal granted Bilal Skaf leave to appeal against the sentences imposed for the offences on 10 and 30 August 2000 and upheld the appeal (R v Bilal Skaf [2005] NSWCCA 297). 14 In December 2005 there was a violent altercation at Cronulla, a beachside suburb of the Sydney metropolitan area. In March 2006 those events were discussed in a television program in which Bilal Skaf was mentioned by name. 15 On 27 March 2006 the retrial of the appellants commenced. Application was made by counsel for a pseudonym to be used for the appellants' real names in an attempt to avoid the impact of the publicity which had preceded the trial and which would accompany it. This application was refused. 16 On 29 March 2006 a jury was empanelled and addressed by the trial judge. The judge gave a strongly worded warning that the jurors were not to take into account anything seen in the media or on the internet. Shortly thereafter a juror sent a note to the judge saying "How can I be reassured that there will not be later repercussions to my safety … like getting beaten up." Her Honour concluded that this juror could not approach the task with an open mind and proceeded to discharge the entire jury. 17 On 10 April 2006 the application for a stay was renewed following the publication in the Sydney Morning Herald of an article written by Mr Paul Sheehan. The article was entitled "Rough, slow justice for rape victims" and referred to several gang rape trials between 2001 and 2006 and recounted some of the publicity which had attended the trials. That application was refused. The facts in relation to the publicity 18 There is no doubt that the alleged offences and the appellants' trials have attracted very considerable publicity. All of the publicity was unfavourable to the appellants. Five volumes of documentary material were tendered before the trial court. Apart from the sensational nature of the allegations and their reporting, considerable publicity was given to the fact that some of the jurors at the first trial had misconducted themselves by carrying out their own examination of the scene of the crime. Further publicity attended the quashing of those convictions and the consequences for the complainant who declined to give evidence at a further trial. Publicity was then associated with the legislative amendment which provided for a retrial without the necessity for the complainant to give evidence in person. 19 During the course of the publicity the name of Bilal Skaf and photographs of him appeared on commercial television stations and on the front page of Sydney newspapers. On one occasion a newspaper displayed a photograph of Bilal Skaf on the front page with the caption "Unmasked: Exclusive pictures of gang rape leader". The editorial on the following pages read "[L]et those four names be etched in infamy" and referred to Bilal Skaf. Other articles depicted the appellants as "Australia's most infamous gang rapists", the "notorious Skaf brothers", "the odious Bilal Skaf", "two of the nation's most notorious gang rapists" and the "EVIL brothers Bilal and Mohammed Skaf". One article referred to "Sydney's notorious Lebanese gang rape case" and another described the appellant Bilal Skaf and other offenders as "they hunted as a pack, forced teenage girls to perform gross sex acts and taunted their victims with vile insults and threats as they raped them …" In particular, Bilal Skaf was referred to on numerous occasions as a "convicted serial rapist", and the "gang rape ringleader." 20 The reporting of the various events was accompanied by a discussion of the process required to try allegations of sexual assault. The theme of the articles, particularly those written by Mr Sheehan, was that the justice system did not treat complainants fairly. 21 I have reviewed all of the publicity. It was extensive, prominent and continued for a significant period of time. I accept the appellants' submissions that it came to be associated with a discussion of issues relating to the behaviour of Lebanese Muslim males towards Anglo-Australian females. 22 The discussion of these matters occurred primarily in newspapers but is to be found in books, in television and radio programs and in material published on the internet. The trial judge's decision 23 The trial judge considered the application for a permanent stay which was refused. She delivered her reasons after the jury's verdict had been returned. Her Honour records the submission that it was because of the intense and sustained publicity that the appellants contended they had become so notorious that they would be unable to receive a fair trial. Her Honour described the evidence in the following terms: "Hard copies of most of the media publicity was tendered in support of both applications. The material adduced by Bilal Skaf was extremely voluminous, extending to five large folders. Various forms of media coverage are reproduced in these volumes: newspaper articles, transcripts of television programs and talkback radio, extracts from books, and a very significant number of reports and postings obtained through internet searches." 24 Her Honour concluded: "There is no doubt that the two accused, Bilal and Mohammed Skaf, have been the subject of a huge amount of publicity [through] various forms of media. They have regularly been described as pack rapists and worse. For example, the front page of the Daily Telegraph on February 4 2005 had a very large headline 'No justice' above the photographs of both Bilal and Mohammed Skaf with the following caption in large letters 'Gang rapist brothers escape new trial after accuser says she is too traumatised to relive her ordeal again'." 25 However, her Honour noted that apart from the Four Corners program, the last publication at least in the print media was in September 2005, approximately 6 months before the trial. In this respect her Honour was inaccurate. There were further publications on 18 October 2005 and 3 and 4 February 2006, which are outlined later in these reasons at [41]. Her Honour accepted that much of the published material could be retrieved from the internet by anyone who sought it out. 26 Her Honour reviewed the relevant authorities and concluded: "I do not see that the pre-trial publicity in the present case, prejudicial and extensive as it was puts this case into a different category from those other notorious cases. It must be remembered that the last significant publications relating to the accused were in September last year, more than six months before the trial was due to start. The Four Corners television program on 13 March this year certainly referred to Bilal Skaf as the 'ringleader' of a pack rape case about four years ago. However this was a very small portion of a program relating to the Cronulla riots in December of last year. In my view it does not take the applicants' case any further." The relevant principles 27 The problem of publicity given to an alleged offence and the offender has been considered by the courts on many occasions. Sometimes the publicity has caused a court to defer a trial for a period. The assumption which the law makes is that the public's memory of publicity will fade with time and accordingly after sufficient time, jurors will have no difficulty in confining their deliberations to the evidence. It is of course inevitable that there will be cases where, either because of the extent of the publicity, or, because of the peculiar or sensational nature of the facts, even if the public memory has subsided, when the evidence is tendered at a trial recollections of previous publicity will return. The internet has given a new dimension to these problems. Newspaper articles which provide an account of various events including allegations of criminal activity or a report of the evidence and verdict in criminal trials can now be retrieved, effectively forever. The law must accommodate these issues whilst ensuring a process which is fair both to the accused and the prosecution. 28 Apart from occasions when a trial is delayed to distance it from publicity, trial judges always tell jurors to confine their consideration to the evidence in the proceedings. If a trial has previously attracted or is likely to attract publicity, judges are careful to remind jurors that they are to ignore any publicity. The contemporary view is that it is not necessary for the jury to be sequestered with exposure to the media thereby eliminated. We accept that jurors will be faithful to the directions given by the trial judge and, if they happen upon a media discussion of the events, will be able to discriminate between the evidence and media reporting of the events. In Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 McHugh J said at [31]-[32]: "The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one -- accused, trial judge or member of the public -- could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although "[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong.' In my respectful opinion, the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge's directions and that they would have done so even if manslaughter had been left as an issue, as it should have been left. In Spratt, Pidgeon J said, correctly in my opinion, "that an appellate court must proceed on the basis that the jury have understood and applied the law in reaching a true verdict" (Footnotes omitted). 29 The obligation which the law accepts is that an accused person's trial must be fair. A balance must be struck between the interests of the accused and the community expectation that persons charged with criminal offences will be brought to trial. In Jago v District Court of New South Wales (1989) 168 CLR 23, Mason CJ stated at 33-34: "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton, at 102, 106; Sang at 437; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24, at 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo (1972) 407 US 514; Bell v Director of Public Prosecutions [1985] AC 937, as explained, as explained in Watson , and Gorman v Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at 263-264." 30 The relevant issues but in the context of pre-trial publicity of previous convictions were considered by the High Court in The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592. In that case a majority of the Court of Criminal Appeal in Victoria held that, by reason of publicity given to the accused by a radio broadcaster before trial, he could not receive a fair trial. The Crown appealed. The High Court divided with three judges deciding that special leave should be refused. However, the majority granted special leave and upheld the Crown appeal. The test provided by Mason CJ and Toohey J in their joint judgment was expressed in the following terms at page 604-5: "Knowledge of an admissible prior conviction for a similar offence stands in a different position from other prejudicial information. Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law. And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial. But it is important to distinguish between cases in which the jury are made aware of a prior conviction during the course of a trial and cases in which such awareness is not established. As McGarvie J acknowledged, "[t]here is not an absolute insistence by the law that a jury have no knowledge of a prior conviction of an accused on trial". His Honour went on to conclude that this case was exceptional because the prior conviction was for an offence of the same nature as the offences charged. However, this conclusion is not to the point in the absence of a legitimate finding that there was a likelihood of awareness of the conviction or at least a substantial risk of awareness. In our view, the approach adopted by the majority in the Court of Criminal Appeal, in finding that there was a substantial risk that the jury were aware of the applicant's prior conviction and that the verdict was unsafe and unsatisfactory on that score, disregarded the principled decision of Crockett J. The majority's reasoning was also based on materials which could not support the inferences drawn, took little, if any, account of the effect of the trial judge's instructions and disregarded the community's right to expect that a person accused of a serious criminal offence will be brought to trial. The last-mentioned consideration requires that a conviction be quashed as unsafe and unsatisfactory only where the materials justify a conclusion that there was a likelihood or substantial risk of prejudice arising from pre-trial publication where the conviction is challenged on that ground." 31 Brennan J (Dawson J agreeing) in Glennon emphasised that even when jurors have knowledge of the accused and his or her alleged crime before trial there may not be a miscarriage of justice. Some degree of prior knowledge is tolerated provided the trial is "as fair as the Court could make it" (at page 614-616). 32 In the dissenting joint judgment, Deane, Gaudron and McHugh JJ stated at 623-624: "The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary. Nonetheless, one cannot exclude, as a matter of law, the possibility that an 'extreme' or 'singular' case might arise in which the effect of a sustained media campaign of vilification and prejudgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and prejudgment. In such a case, a permanent stay may be granted. If it is not, a subsequent conviction will necessarily constitute a miscarriage of justice. Accordingly, it must be set aside on appeal, and, if there is no other power to bring the proceedings to finality, a verdict of acquittal must be entered. The judgments of the majority of the Court of Criminal Appeal make clear that their Honours concluded, as a matter of fact, that this was such an extraordinary, extreme or singular case with the consequences indicated." 33 It is apparent that when considering an application for a permanent stay a number of considerations justifying or militating against a stay must be examined. An accused person has a right to a fair trial for which an impartial jury is essential. The court must consider whether in all the circumstances, including the directions which can be given by a trial judge, a jury will bring an impartial mind to the issues to be decided. A fundamental assumption of our criminal justice system is that the jury will understand and abide the directions of the trial judge. Whether directions of law or a direction that the jury exclude matters from their consideration are given, unless it can be concluded that the directions could not be effective, this assumption will be maintained. Spigelman CJ expressed these principles in R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 where his Honour said at [19] and [21]: "Issues of this character have arisen on many occasions in which extensive publicity had been given to particular cases involving clear implications of guilt. Glennon involved a Roman Catholic priest who was convicted of sexual offences against a girl. Murphy involved the Anita Cobby murderers. Other cases include the case of Ivan Milat (see R v Milat, NSWCCA, 26 February 1998, (unreported)), the "Mr Bubbles" child sexual abuse case (see R v VPH , NSWCCA, 4 March 1994 (unreported)), the paedophile Phillip Bell (see R v Bell , NSWCCA, 8 October 1998 (unreported)), the child sexual assaults committed by a former member of the Queensland parliament (see R v D'Arcy [2001] QCA 325) and the Childers backpacker fire (see Long v R [2002] QSC 54). None of these cases satisfied the test of exceptionality, despite the intensity of the media publicity involved. … The authorities to which I have referred establish that even in circumstances of a crime of a high level of notoriety, where it would probably not be possible to select a jury panel who had not heard about the case and indeed who may have a tentative opinion, the trial must still proceed. Jurors who may have formed an opinion are not necessarily biased in the relevant sense. There is now a substantial body of judicial statements of the opinion that jurors accept their responsibility to perform their duties by differentiating between the evidence and what they may have heard before the trial." 34 Although many applications for permanent stay have been made we are aware of only one that has ultimately been successful. In Tuckiar v The King (1934) 52 CLR 335 the accused successfully appealed against his conviction because of the trial judge's inappropriate comments on the failure of the accused to give evidence. The court did not order a retrial because defence counsel had made public statements following conviction to the effect that the accused had admitted to him the correctness of the confession evidence. Except in this limited manner the case was not concerned with pre-trial publicity. 35 The most recent consideration of the relevant principles occurred in R v Ferguson; Ex parte A-G (Qld) [2008] QCA 227. In that case the accused had been granted a permanent stay by a trial judge by reason of pre-trial publicity which his Honour concluded had the consequence that he could never receive a fair trial. His Honour concluded that: "In the circumstances of [the] case, [it was] impossible to conceive that a jury could be empanelled, all of whose members would be able to bring the dispassionate judgment which the law requires to a consideration of the evidence" (para 11). 36 When setting aside this decision, the Court of Appeal summarised the relevant principles including the discussion in Glennon (at [23]-[55]). I need not repeat them. Their Honours contemplated that it was conceivable that media comment adverse to an accused could be so prejudicial as to lead a trial judge to conclude that proceedings should be permanently stayed. 37 However, their Honours concluded that: "An order for a permanent stay of proceedings is nothing less than an acknowledgment that the judicial system cannot deal with the charge. It can be justified only on the basis of a conclusion that a fair trial will not be possible within any reasonable time frame or in any venue within the court's jurisdiction" (para 58). Consideration of the issues 38 The appellants argued that the level and nature of the publicity in the present matters was such that this matter fell into "the exceptional class" referred to in Jago v District Court of NSW (1989) 168 CLR 23 at 31. The submission was advanced for the following reasons: 1. The amount of publicity surrounding the first trial, in conjunction with the other trials, and the ensuing publicity surrounding the sentences; 2. The vast range of print (both newspaper and other literature), radio (reportage, commentary and talk-back), and television coverage disseminated prior to trial referring to the appellant, Bilal Skaf, as a "pack rapist" and to both appellants as "convicted rapists" and the appellant, Bilal Skaf as the "ring leader"; 3. The spread and availability of the coverage across all spectrums of society and the community; 4. The greater access to such material given an ever increasing availability of internet access; 5. The timing of the trial in combination with media focus on accused persons of Muslim backgrounds, as well as Lebanese Muslim males and rape trials; 6. The timing of the trial in combination with a focus on radical elements of the Muslim community following the September 11, 2001 attacks; 7. The media attention given to the length of the appellants' sentences following the original trial; 8. The media attention given to the activities of the errant jurors necessitating a new trial; 9. The increased publicity that surrounded this trial in particular given the introduction of new legislation, namely s 306B of the Criminal Procedure Act 1986 following a strong media response when the complainant in this trial refused to give evidence on a retrial; 10. The timing of the trial following shortly after the Cronulla riots re-agitating a wave of negative commentary about Muslims in general and the appellant in particular; 11. The timing of the trial in conjunction with a television program aired on Four Corners shortly before the trial; and 12. The release of the names of both brothers (despite the juvenile status of Mohammed Skaf) following the first trial. 39 The appellants emphasised that the principal issue at their trial was identification and the nature of the publicity concerning their reputations and character was especially damaging. It was submitted that the directions and warnings given by the trial judge were not capable of curing the prejudice occasioned by the nature and extent of the publicity. 40 There is no doubt that some of the media reporting was excessive. In her reasons for rejecting the application the trial judge referred to a number of these. The article in the Daily Telegraph on 11 October 2002 featured a photograph of Mohammed Skaf with the words "wild animal" and another on 4 February 2005 featured a photograph of both appellants with the caption "gang rapist brothers escape new trial after accuser says she is too traumatised to relive her ordeal again." However, these articles were published well before the trial and with limited exceptions there was little media reference to the Skaf brothers in the six months prior to the trial. As we have indicated, courts act upon the assumption that publicity, even intense publicity, fades in the public memory over a relatively short period. Although we accept that in many people's minds some generalised recollection of the publicity would have continued at the time of the trial, we do not believe it was such to divert a juror from a proper consideration of the evidence. 41 The exception to which we referred included two articles which appeared in the Daily Telegraph on the same day – 6 August 2005. The first, a short article on page 22 referred to the appellant only by initials as "MS". The other on page 3 referred accurately to the "alleged gang rapist bilal Skaf" and his "accomplice who can only be known as MS" and that there was to be a retrial "for that alleged rape." An article was also published in the Queensland Courier Mail on that day. A month later, there were articles on 10, 16, 17/18 September 2005 in the Courier Mail, the Daily Telegraph, the Cairns Post, the Australian Broadcasting Corporation, the Australian and the Sydney Morning Herald relating to Bilal Skaf, his having been convicted of a series of gang rapes and a decision of this Court at the time having reduced his overall sentence. Two of those articles referred to Mohammed Skaf (SMH Weekend Edition 17/18 September and the Australian, 17 September 2005). On 19 September 2005 the Daily Telegraph published an article relating to Bilal Skaf's sentence reduction and asked readers the following question, "The Court of Criminal Appeal has slashed the jail sentence of rapist Bilal Skaf. Does this make a joke of the law?" Readers could vote by telephoning the numbers provided. Two articles appear in the Canterbury Bankstown Express on 18 October 2005 and 20 September 2005 related to Bilal Skaf's sentence reduction and his appeal to the High Court. A similar report was published by the Australian Broadcasting Corporation on 18 October 2005. A month before the trial, six articles were published by the Australian Broadcasting Corporation, the Daily Telegraph, the Sydney Morning Herald and the Australian on 3 and 4 February 2006. These articles related to the High Court's refusal to grant special leave to the Crown to appeal against the reduction in sentence for the "notorious gang rapist, Bilal Skaf." Prior to these newspaper articles one had to go back to March 2005 to find reporting in the print media. 42 There was a suppression order made pursuant to s 11 of the Children (Criminal Proceedings) Act 1987 prohibiting from publication the name of Mohammed Skaf or anything which may identify him in force from 5 August 2005. The order remained in force from that time until the date of sentence on 28 July 2006. There was also a previous suppression order during the first trial before Finnane DCJ between 1 July 2002 and 11 July 2002 for both appellants; in respect of Mohammed Skaf, the suppression order was lifted after he was sentenced on 10 October 2002; in respect of Bilal Skaf the suppression order was lifted on 6 September 2002, after he had been sentenced on 15 August 2002. 43 There was a radio news item on 3 February 2006 reporting Bilal Skaf's failed appeal to the High Court, however, any radio news item prior to that was on 4 November 2005. 44 The compilation DVD of the television coverage of relevant events is undated. However, the year in which each segment was televised can be worked out. Over half the segments were televised in 2002. Until Finnane DCJ lifted the suppression order in September 2002 no one was named except Belal Hajeid and Mahmoud Chami. Reference is then made to Bilal Skaf, his having been sentenced to 55 years and being the leader of a group who terrorised women in August 2000. Four segments in 2002 also refer to Mohammed Skaf. There are a few segments referring to Bilal. Skaf and a threatening letter sent to the Corrective Services Commissioner as well as a caller threatening to shoot court staff if Bilal Skaf, serving 55 years was not released. There are two segments in 2003 which refer to Bilal Skaf and MG (by his full name) wanting to overturn their convictions and two segments in 2004 referring to the fact that a new trial had been ordered. There are two segments recorded in 2004 and there appears to be no segment beyond that year. 45 This Court ordered a retrial of this matter in R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86. A similar ground of appeal ie that the appellants did not receive a fair trial due to media publicity failed. 46 As indicated above the internet is an ongoing problem for the criminal justice system. The law has developed some strategies intended to deal with the situation. Model directions have been formulated following the decisions in R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431 and R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 and s 68C Jury Act 1977 came into operation on 15 December 2004 prior to this trial. In her opening remarks to the jury the judge gave these directions. In his submissions to the trial judge on the stay application, counsel for Mohammed Skaf conceded "The concern is not publicity or what is is (sic) available on the Internet today because your Honour will give directions in relation to that. It is the publicity which is already out there and whether a direction at the start of the trial can remove that from the psyche of the jury as of today." 47 While there were spikes in media intensity refuelled by events such as Bilal Skaf receiving a sentence of 55 years in August 2002, errant jurors necessitating a new trial ordered in May 2004 and provisions introduced into the Criminal Procedure Act 1986 in May 2005, jurors would have been astute to have discerned, let alone remembered, that either appellant had been tried for more than one incident. The present offence occurred in August 2000. It was inevitable that the jury would hear, and did hear, that there had been a previous trial. As earlier mentioned the evidence in the previous trial of the complainant and in addition, Ali Skaf, who was unable to attend due to illness, was read to the jury. Appropriate directions were given during the trial to the jury. 48 When the jury were empanelled on Monday 3 April 2006 the judge took special precautionary steps. The jury was selected from a panel of 31 jurors. The number of challenges allowed to each appellant was increased by agreement from three to five. After each appellant was arraigned before the jury panel - the wording of the indictment detailing to the jury the names of the accused, the nature of the offences and where and when they were allegedly committed - and a list of witnesses to be called for the prosecution read out to them, the panel was addressed by the judge who then adjourned the matter for about half an hour. In her address, the judge told the jury in no uncertain terms that it was "absolutely essential" those jurors who eventually tried the matter should be "utterly impartial". After informing them of considerable pre-trial media publicity, she emphasised several times that if they had "the slightest doubt at all as to [their] capacity to give entirely open and impartial consideration to this case", they should tell the sheriff's officer and they would be automatically removed from the panel with no questions being asked. Her Honour's complete address was as follows: "Members of the jury panel, the reason for giving you this information is simply this, to alert all of you before the empanelling process commences to the nature of the case and the identity of the principal participants. It is absolutely essential that the jurors who are empanelled to hear this case are utterly impartial. That means that they must not be personally acquainted with anyone involved in the trial, hence giving you the list of the prospective witnesses. It also means, and this is particularly important in the circumstances of this trial, that the jurors who eventually try this matter should have no preconceived notions whatsoever about the matter, whether arising from the nature of the charges themselves or from the identity of the two accused. This trial has had something of a lengthy history, and it has attracted quite considerable media publicity over the last few years. Now it is likely that many of you will have seen this, or at least some of it. It is also likely that a number of you who have seen this publicity might find it very difficult to put it out of your minds and be completely impartial in your assessment of this case. There might be others of you who will find it distressing to hear evidence relating to multiple sexual assaults. If you think you fall into either of these categories, indeed if you have the slightest doubt at all as to your capacity to give entirely open and impartial consideration to this case, given the people involved, the nature of the charges, and any publicity that you might have seen over the years, then you will have the opportunity very shortly to be excused from the panel that will be hearing this trial. I urge you, that if you have any reservations at all as to your capacity to put media publicity behind you, and to deal with the case on its own merits, then please seek to be excused from dealing with this trial. It is absolutely essential that we have an impartial jury for this trial who can deal with the evidence in an entirely objective manner. If you do seek to be excused you will not be seen as evading your responsibility as potential jurors. To the contrary you will be seen to be responsible and honest members of the community who take seriously your obligation of jury impartiality. Now in a minute I am going to adjourn the Court, and for about half an hour or so. You will be provided, I am told, with a cup of tea, and this will give you an opportunity to think about it. Remembering that it is essential that the panel which remains from which the jury will be selected for this trial be impartial and objective to the issues and the people involved in the case. If you have the slightest doubt about your own capacity to be impartial and objective, then all you would have to do is tell the Sheriff's Officer at some stage during the course of that adjournment before we come back into court and you will automatically be removed from the panel to deal with this case. No questions at all will be asked of you. Please, however, if you think you might have difficulty with being impartial, do not share your views with other members of the panel. This can only make matters significantly worse. I urge of you, do not mention any difficulties that you have to any other panel members." 49 Following the empanelment of the jury, her Honour gave a further direction in these terms: "The evidence, as I have already told you, consists of the oral evidence of the various witnesses, the documentary exhibits. In other words the material that is put before you here in this courtroom. And it is absolutely essential that your deliberations be based only – only on that material. Now as we went through before the actual impanelment of you, the jury, the fact that there has been considerable amount of media publicity relating to these accused and the history of this trial, it is very likely that a number of you have seen it. But as I said to you earlier, you are here to be impartial and objective. To the extent that you have read anything whatsoever outside this Court, it is absolutely essential that you put it out of your minds completely when you are looking at the issues raised during the course of this trial, and that you determine the issues in this trial on the material put before you in this Court, and only on that material. There are very good reasons of fairness for this. In a trial setting the evidence that it put forward by one party or the other is available for scrutiny, contradiction, and explanation by the other party. Fairness dictates that this be so. But if you were to somehow base your determination on material that was not part of the evidence in this trial, then you would be depriving the opposing party of explaining, contradicting, giving another version of whatever you had in your head. You would be doing a serious injustice to one party or the other, and you would be untrue to your oath which was to try this case according to the evidence. Now for these reasons it is absolutely essential that none of you take any steps whatsoever, or ask anyone else to take any steps whatsoever to make inquiries about this case outside the courtroom, either by the Internet, by any other electronic means, or indeed by any means whatsoever. You must not consider making any private visit to any scene, or making any outside court attempt to investigate the background of this matter." 50 During her summing up the trial judge gave the following further direction on issues relating to publicity: "Now I emphasised to you right at the beginning of this trial even before you were empanelled, the necessity to put completely to one side anything that you might have read or heard about this trial or about these accused outside this courtroom. Even during the course of the trial there has been a bit of publicity, over the last week or so, about sexual assaults generally, and how victims are treated within the justice system, victims of sexual assault. I do not know whether any of you have seen this, but if you have, yet again, you must put it completely out of your minds. You must determine this case solely on the evidence that is given in this courtroom, plus of course the evidence of the view that we all went upon last Wednesday evening." 51 The appellants asserted that these warnings were incapable of curing the prejudice created by previous media publicity. The appellants emphasised that notwithstanding the trial judge's warnings on 29 March 2006 one juror who had been empanelled sent a note to the trial judge expressing concern for his or her safety. That jury was then discharged. 52 The appellants submitted that it should be inferred that this juror, and accordingly, that jury, had not effectively responded to the trial judge's warning and only after empanelment expressed the view that he or she could not be an effective juror. 53 We do not accept that argument. It must be remembered that the juror did not disclose his or her concerns until after the Crown Prosecutor's opening address in which the nature of the crimes and the violent circumstances in which they were committed, including the use of a weapon, had been discussed by the Crown Prosecutor. The Crown Prosecutor's address would have made it apparent to the jury that the violent aspects of the case were not disputed. In those circumstances it was understandable that a juror may have come to have concerns about his or her future safety. 54 On the first occasion the judge instructed the jury that if they had any doubt as to their capacity to give an impartial consideration to the case, "now is your opportunity to say so. All you need to do is simply put up your hands." However, on the second occasion, her Honour did not require an immediate response by a public show of the hand but instructed the panel to tell the sheriff's officer during the half hour adjournment which then occurred. The impact of this change of procedure in encouraging any concerned juror to come forward cannot be underestimated. 55 The initial experience of a jury of the courtroom is likely to be stressful, inhibiting a person from expressing their concerns about becoming a member of the jury. With time for reflection, if the juror has concerns, they are more likely to express them once they have become reasonably familiar with their surroundings. 56 The written submissions on behalf of Bilal Skaf refer to passages in R v Chami; R v Sheikh [2002] NSWCCA 136; (2002) 128 A Crim R 428 at [19] - [20]; 431 (Ipp AJA) which conclude with the remarks at [20] that despite directions "it may be difficult for a jury, with the best will in the world, to remain entirely objective." It was submitted that these remarks are apposite to the present case. In our judgment reliance on Ipp AJA's remarks is misplaced. His Honour was considering an application for a separate trial by one accused who was allegedly involved in only one of a series of events where the same complainant had been sexually assaulted. His Honour was not writing with respect to publicity associated with the events of concern to the trial. 57 The appellants complain that the judge should have required pseudonyms to be used for the names of both appellants. However, although the idea was floated no application was actually made. Senior counsel for Bilal Skaf conceded that the situation could become worse if the jury realised this device was being used to conceal the identity of the appellant. 58 We are satisfied that her Honour, with respect, correctly assessed the Four Corners television program on 13 March 2006. Only a very careful combing of this transcript turns up a fleeting reference to Bilal Skaf. The interviewer also refers to a "wrong and confused" view about this pack-rape case (itself a confusing comment). In submissions to the trial judge, senior counsel for Bilal Skaf conceded that this television program was "on its own it's relatively minor". 59 We have reviewed the seven folders of material and relevant cases provided by counsel in depth. Notwithstanding the extensive media coverage of the "Sydney Gang Rape Cases", and in particular the focus on the appellant Bilal Skaf, we are of the opinion that the jury having been properly instructed on the issue, the pre-trial publicity was not such as to distract the jury from its proper function. As counsel for the appellant Bilal Skaf conceded, the "high point" of the media coverage was in September 2002, some three and a half years before the commencement of this trial. We are satisfied that the material would have faded in the memories of the jury over the intervening period and would no longer have had the prominence it might have had at the time it was published. The directions given by the trial judge were extensive and repeated to the jury throughout the trial. For these reasons we consider that this case does not fall into the category of the "most exceptional circumstances" referred to in Jago and other decisions of the High Court. 60 We reject this ground of appeal. Ground 4 61 During the hearing of the appeal, counsel added a further ground of appeal, being that "there was a miscarriage of justice because the pre-trial publicity and publicity during the trial meant that the appellant did not receive a fair trial." It became ground 4 in the appeal. The ground related to the article in the Sydney Morning Herald on 10 April 2006 by Mr Paul Sheehan. 62 The article focused on the rape of Tegan Wagner by two Pakistani brothers and the asserted failure of the legal system, reference being made to other examples of rape victims being let down by the legal system. Other than one example referring to the "K brothers", none of the examples named either the accused or any other victims. The example which related to the appellants was referred to as a case in 2004 and stated: "... The victim was too traumatised to endure another trial. So the two men escaped punishment... ". As the judge observed it was unlikely the jury would link that case, which did not proceed, to this trial which was proceeding. 63 Trial counsel referred to a "chain of other articles in the past [week] arising out of the case that [was] at the forefront of [that] article." Her Honour responded that although the article dealt with the issue of rape victims and court proceedings, they did not relate to the present case. Her Honour said: "We have to assume that this jury is able to put media matters out of its mind. As you have put before me, there has been much worse media coverage relating to these two accused, that clearly relates to them than anything that has come out in the last week … … this jury, after the strongest possible admonitions, said that they were confident of their ability to put much more adverse media publicity behind them. So I think we have to assume that they are going to be able to do the same with this." 64 Her Honour declined the application. In her reasons for refusing the permanent stay application on 27 March 2006, delivered on 28 July 2006, her Honour noted that "although there were two separate applications which were separately argued before me, the issues are identical in each case and these reasons therefore relate to both of them." 65 We have considered the pre-trial publicity and publicity throughout the trial. The publicity during the trial did not specifically refer to the appellants and we are satisfied that her Honour's warnings to the jury were adequate to deal with both the pre-trial publicity and publicity during the trial. We reject ground 4 of the appeal. Ground 3 66 In order to appreciate this ground of appeal it is necessary to understand the factual elements of the Crown case. They may be conveniently taken from the Crown's summary: "The appellant Mohammed Skaf had known the complainant for some time, although he had never told her his correct name: she knew him as 'Sam'. On the night of 12 August 2000 he rang her and asked if she would like to come for a drive to the city. She accepted. He arrived at her house unexpectedly with two other males. They drove to a carpark at Gosling Park, Greenacre, after Mohammed Skaf told her he had to stop off to collect some money owed to him. Throughout the trip Mohammed Skaf and the others were frequently talking on their mobile phones in a foreign language. Count 1 related to Mohammed Skaf's role in enticing the complainant to the park and leaving her there intending that his brother Bilal would have non-consenting intercourse with her in the company of others. Sometime after their arrival at the park a white van and a blue car arrived, carrying eleven males. The driver of the white van, Bilal Skaf, dragged [the complainant] by the hair to another part of the park near a pump shed where he had vaginal intercourse with her (Count 2) while surrounded by the other males. The complainant described him [as] having a scar above his left eyebrow. A second male then also had vaginal intercourse with her (Count 3) assisted by others who pinned her down. This took place in the presence of Bilal Skaf, who was doing up his pants nearby. When the second male got off [the complainant], he pushed her causing her to hit her head on a cement cylinder. Another male then held a gun to her head and threatened her not to tell anyone what had happened otherwise she would be killed. She was then kicked in the stomach. She stood up, ran for her life and [was able to alert a passer-by who came to her assistance]. There is a light near the cement cylinders where this took place. In November 2000 the complainant identified both appellants from photo boards, although in Bilal Skaf's case she was not 100% positive. Bilal Skaf declined to participate in an identification parade. On 15 February 2001 the complainant identified Bilal Skaf in a crowd at Burwood Local Court as Sam's brother. Arrangements [had been] made by the police for the complainant to go there on an occasion when Bilal Skaf would be there. She immediately identified him without doubt as her assailant. On 3 April 2001 Bilal Skaf requested an interview with [the] police. The police had by then obtained records of mobile telephones used on the evening of the offence, which showed a number of calls between the mobile phones belonging to Bilal and Mohammed Skaf within the period leading up to the sexual assaults. He told police in an ERISP that he was at home on the night of the offence and remained there. To explain at least some of these phone calls he claimed his cousin Ali Skaf had used [his phone] to talk to Mohammed. He claimed his cousin Ali Skaf and a friend named Andre came to his house that night in Ali's white van. He said Ali did not have a phone and he received a phone call from his brother Mohammed wanting to speak to Ali. He claimed the next day Ali told him that after leaving Bilal's house, he had gone to Gosling Park in his van and had sex there with a girl in the company of friends. He relied on this alibi at trial. Detective Walsh gave evidence that Ali Skaf was 180 cm tall, quite different from [the height] of Bilal Skaf, and did not have a scar above his left eyebrow. Due to Ali Skaf's unavailability to attend trial due to illness, his evidence in a previous trial was also read out to the jury. He denied having gone to Gosling Park on the night in question or having sexually assaulted a young woman there. [He said that] he had not been at Bilal Skaf's home that night, nor did he ever tell Bilal Skaf that he had had sex with a girl at Gosling Park. He was tall and of stocky build. The Crown called Andre Saadi. He also denied having gone to Gosling Park on the night in question or having sexually assaulted a young woman there. He had not been at Bilal Skaf's home that night, nor did he ever tell Bilal Skaf that he had had sex with a girl at Gosling Park. He denied ever having been in a white van with Ali Skaf. He did not know Bilal Skaf. On 7 December 2000 the complainant was shown a photo board which contained a photo of Ali Skaf. She did not identify anyone from that photo board. Bilal Skaf's case was that he had been wrongly identified by the complainant. He [said that he] was at home at the time. [He suggested that] the man identified by the complainant could have been his cousin Ali Skaf. Mohammed Skaf disputed that his brother Bilal committed the sexual assault. He also disputed that his action in taking the complainant to the park and leaving her there (temporarily) was in the belief that she would ever be sexually assaulted. Neither accused gave evidence. At trial Mohammed Skaf's identification was not in issue, but Bilal Skaf's was in issue. Called in the case for Bilal Skaf (but relevant also to his brother's case) was a psychologist, Dr Richard Kemp, who had researched the topic of human face perception and recognition. He gave evidence of the 'displacement effect' – having seen the photograph of Bilal Skaf on a photo board there was an increased risk of mistaken identification of him as an offender because his face had become familiar to the complainant. The evidence identifying Bilal Skaf included: (a) Mobile phone records showed mobile phone calls between Mohammed Skaf and his brother throughout the evening; (b) Bilal Skaf's phone calls were originally from his home in Valencia Street, Greenacre, but later they originated at Gosling Park. This was inconsistent with his claim to have been home at the time; (c) When he initially came over to the car in which the complainant sat, he identified himself by saying: 'How are you, I'm Sam's older brother. My name is Sam. How do you know Sam?' There was no evidence that Mohammed had any older brother apart from Bilal. There was also evidence (from Snr Constable Dan Davie) that Bilal Skaf had used the name 'Sam' on a previous occasion; (d) The complainant gave a physical description to the police resembling Bilal Skaf including the scar on his left eyebrow; (e) The complainant selected Bilal Skaf as 'Sam's older brother Sam' from a photo board in November 2000 although she was not 100% positive; (f) On 15 February 2001, she identified Bilal Skaf without doubt as her assailant from a crowd at Burwood Local Court; (g) His alibi was quite inconsistent with the evidence of Ali Skaf and Andre Saadi. Bilal Skaf told police he did not speak to his brother that night at all except to hand over the phone to Ali. Yet telephone records indicated five calls by Bilal Skaf to Mohammed Skaf that night. There was also evidence, contrary to what Bilal Skaf told police, that Ali Skaf did have a mobile phone and that each of them had their respective numbers stored in each others phones. Furthermore, the complainant's description of the offender did not match Ali Skaf." 67 It is apparent from this summary that the identification by the complainant of Bilal Skaf as one of the persons who sexually assaulted her was an essential element of the Crown case. She gave police a description of him. She subsequently identified him from the police photo board display and during a surveillance exercise at Burwood Local Court. 68 The trial judge was conscious of the potential unreliability of identification evidence and the need to caution the jury about its use. During the course of her summing up her Honour reminded the jury that the real issue in relation to Bilal Skaf was whether he was at the scene at all. Her Honour said that "the case against him is completely dependent upon [the complainant's] identification of Bilal Skaf as her assailant …. At the end of the day if you have a reasonable doubt on that issue then you will be obliged to acquit him." 69 Her Honour gave the jury a number of general warnings in familiar terms about the reliability of identification evidence. Her Honour said: "I have to tell you this, members of the jury, that evidence of identification, if it is disputed, must be approached with extreme caution before you accept it as reliable. It is the reliability of the evidence which you must put under great scrutiny. Nobody doubts the honesty of [the complainant's] belief that the man that she saw at Burwood Court on 15 February was in fact her assailant. There is no question of the honesty of her belief. The real question is the reliability of her conclusion that that was the man who assaulted her on 12 August. Identification is a particularly fraught area of the law, because it is so easy to make mistakes in identifying someone, particularly in any identifying somebody who was not previously known to the witness. I have to tell you this, that the common experience of the criminal courts over the years has demonstrated that identification evidence, no matter how honestly given, can turn out to be unreliable. And indeed there have been a number of notorious cases over the years in which obviously honest evidence of identification has later been shown to be wrong, and innocent people have been convicted." 70 Her Honour then took the jury to the relevant evidence. Because this was a retrial the jury had a transcript of the evidence available to it. Her Honour then repeated her warning and said to the jury: "40. … And on 15 February 2001 she identified Bilal Skaf at Burwood Court. As I understand it there is no issue that the person whom she did identify on that occasion was in fact Bilal Skaf. At the time she simply said, as I just mentioned, that he was one of the men there that night, but later said that it was Sam's brother Sam. And she said in evidence that she knew immediately that that is who it was. 41 Now having gone through the evidence of what [the complainant] said, very briefly indeed of course, and through the sequence of events, I go back to my original direction that you must treat evidence of identification with particular caution, because of the real dangers of even the most honest witness who is firmly convinced of the correctness of her identification being mistaken. You need to look at a number of matters. You need to look at any matters which might support or detract from the reliability of the identification by [the complainant]. 42 I will go through a few of these. First of all her familiarity with Bilal Skaf before the events in question. And of course there was none. She did not know him at all. And that is a significant matter because it is always much more difficult to get a reliable identification of a stranger than of somebody who you previously know. That is a matter of common sense you may think. And another matter to be considered is whether there were any characteristics of the subject of the identification which would tend to support the identification. Here of course there is the matter of the scar over the left eyebrow. Although you will remember what Mr Zahra said, taking you to [the complainant's] evidence about the scar, that there are different descriptions of it, and certainly there is no doubt that the photograph shows there is a scar 2 centimetres above the eyebrow. But was this the scar that she was describing? That is all a matter for you. 43 More importantly there is the self-description of this man as Sam's brother Sam. And I will be returning to that in just a couple of minutes. You also have to look at the circumstances of the witness' observation at the time of the event. How long did she have him in her view? That is up to you. It had to be more than a fleeting view of him. And obviously when you are looking at the distance, it had to be a close-up view. After all he raped her. You have to look at the lighting; and that is entirely a matter for you. And that is why we all went there last Wednesday, essentially to give you a view of the lighting. And of course also the circumstances involved a situation of great stress for [the complainant], and as Dr Kemp said yesterday, that can be a negative factor affecting the reliability of identification. 44 You look at the nature of the description which she gave initially. And of course the description which she gave on 22 September you have heard it, it is in her evidence, page 11 as I recall, and Mr Zahra has taken you to that. There are some aspects in which you may think that it may or may not, (it's a matter for you), look like the person we know to be Bilal Skaf. The fact that she made no positive identification of Bilal Skaf when she was shown the photoboard on 8 November, which included his photo, is clearly a significant matter you must take into account. Although you are entitled also to take into account, when looking at that photo, that there was no scar visible in that photo. You are entitled to look at the computer generated photos. It is up to you whether you consider that there is any real resemblance with Bilal Skaf. You may not think that there is a great deal. The Crown says that this is a difficult area. Mr Zahra says well they managed to do a reasonable job of Mohammed Skaf. It is up to you whether you agree with that. These are all issues of fact. All I am doing is just pointing you to the matters you will need to take into account. 45 You must also look at the length of time between the events of 12 August and her ultimate identification of Bilal Skaf as her assailant that night. And it was just about exactly six months, quite a long time; and also at the circumstances of that identification, where she was probably expecting to see somebody connected with the night of 12 August. You also need to take into account what has been described as 'the displacement effect' – and of course Dr Kemp gave evidence of this – that having seen the photograph of Bilal Skaf and others on the photoboard there is an increased risk of mistaken identification of him as an offender because his face has become familiar to her. As assumed familiarity from seeing it on the photoboard. That is what the displacement effect is. And of course that is a matter which you must take into account. Dr Kemp said that it adds to the possibility of a mistaken identification, because the face has assumed familiarity. 46 Finally you need to consider any other evidence which tends to either support or detract from the reliability of the identification, and probably the most significant piece of evidence which the Crown relies upon here is the fact that the driver of the white van, who was later, according to [the complainant], the first man to assault her, introduced himself as 'Sam's brother Sam'; later saying he was Sam's older brother. 47 Well we know in fact that Bilal Skaf is Mohammed Skaf's older brother. So if you do accept this evidence of [the complainant] – and as far as I can see it has never been disputed from a factual matter, that this first man who came up to her from the white van introduced himself immediately as Sam's brother Sam – you are entitled to regard it, (it's a matter for you), as a significant piece of the evidence in relation to her identification of Bilal Skaf. Certainly it wasn't until almost precisely six months later that she first identified Bilal Skaf. But as it turned out, the very person whom she identified from the various people at Burwood Court on 14 February 2001 happened to be Mohammed Skaf's older brother Bill, who had previously, at least once, adopted the name Sam, as we know from the evidence of [Mr] Davie. So you are entitled to take that evidence into account as powerful material supporting [the complainant's] identification of Bilal Skaf as her first assailant." 71 The essence of the appellant's complaints is found in [46] where her Honour refers to the "need to consider any other evidence which tends to either support or detract from the reliability of the identification." It was submitted by the appellant that her Honour erred in directing the jury that they may consider evidence that the driver of the white van and the first of the persons to assault her referred to himself as "Sam's brother Sam" and that they were entitled to regard it as "a significant piece of evidence in relation to her identification of Bilal Skaf." It was submitted that the probative value of identification evidence is not capable of being bolstered or supported by other evidence. Identification evidence stands or falls according to its own qualities. 72 The appellant referred to Domican v The Queen [1992] HCA 13; (1991-1992) 173 CLR 555 at 565 where the court in a joint judgment confirmed that the "adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case." The court confirmed that "the judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence." 73 It is important to appreciate that the High Court was concerned with the adequacy of the warning required to be given in relation to identification evidence. It was not at that point in the judgment concerned with the more general issue of the directions to be given in relation to the strength of the entire Crown case. The court was emphasising that the adequacy of the warning required in relation to identification evidence had to be assessed having regard to the evidence as to the knowledge of the witness of the person identified, their opportunity to observe that person, the passage of time since the incident and the identification and the circumstances in which the identification occurred. Merely because there is other evidence which may implicate an accused, the trial judge is not absolved from giving appropriate warnings. Because the jury may decide to convict solely on the basis of the identification evidence, even if the Crown case is otherwise strong, the warnings must be given. 74 The appellant also referred to the judgment of Levine J in R v Razzak [2004] NSWCCA 62. In that case this Court confirmed that "poor quality identification evidence of itself cannot be improved by any other evidence. It stands or falls according to its own quality. What other evidence can do is bolster the Crown case, which includes the flawed evidence that the accused was the person who committed the offence of malicious wounding (that being the only issue here)" at ([26]). There are passages to similar effect in R v Turner [2000] SASC 27; (2000) 76 SASR 163 where Mullighan J said at [102] that the jury could not be instructed that "they could use the circumstantial evidence to see if it enabled them to decide that [the victim] was selecting the robber at the identification parade." 75 In the present case her Honour was careful to direct the jury in relation to the problems with identification evidence. The directions which her Honour gave which we have included at [68]-[70] above were appropriate. Before giving those directions her Honour had told the jury: "Then between pages 23 and 25 she described going to Burwood Local Court, being asked to indicate if she recognised anyone as being there on the night of the assault, and she saw this man when he was walking up the stairs and says she identified him immediately as Sam's brother Sam. She said: 'I had no doubt I had the right person.' She said at the time she immediately identified him as one of the men, and it was a few days later that she said it was Sam's brother Sam. On page 25 she described what it was about him that made her certain that this was the man whom she had seen." 76 It is correct, as the appellant asserts, that poor quality identification evidence of itself cannot be improved by other evidence. However, even if of poor quality, evidence of identification may together with other evidence assist the Crown case. Problems may arise when the identification evidence is weak and the Crown seeks to establish the accused as the offender by inviting consideration of the surrounding circumstances which suggest that it was the accused who committed the crime. 77 There was no issue in the case that the complainant had been assaulted, the only question being whether the appellant had been involved. The complainant was confident and definite about her identification of Bilal Skaf in the crowded Burwood Local Court as "Sam's brother Sam." The complainant said she recognised him as the person who was introduced to her as "Sam's brother Sam" and later identified himself as Sam's older brother who, of course, is Bilal Skaf. The substance of her evidence was that she recognised the man at the court as the same person to whom she was introduced. This was not circumstantial evidence with a tendency to bolster confidence in her identification. Rather it formed part of the process of identification. 78 This case can be distinguished from Razzak where the identification evidence was appropriately described as "weak resemblance evidence." In that case this Court was concerned that the trial judge by his directions may have diverted the jury from a proper evaluation of the probative value of that weak evidence by asking them to consider whether it could be supported or bolstered by other evidence. The other evidence was of a circumstantial nature. A similar position existed in Turner. 79 As the trial judge pointed out there was no issue in this case that Bilal Skaf is Mohammed's older brother. In these circumstances the directions given by the trial judge did not diminish the strength of the warnings she gave and did not impermissibly invite the jury to weigh in the balance, on the identification issue, evidence which was not relevant to that issue. 80 We reject ground 3. Applications for leave to appeal against sentence 81 Both appellants seek leave to appeal against the sentences imposed upon them. As noted at the outset of this judgment, the first count in the indictment charged Mohammed Skaf as an accessory before the fact to the offence of Bilal Skaf the subject of the second count. The second count charged Bilal Skaf with aggravated sexual assault, based upon his own act of intercourse with the complainant. The third count charged Bilal Skaf with aiding and abetting the aggravated sexual assault of the complainant by another man. By s 61J of the Crimes Act, the aggravated sexual assault charged carries a maximum sentence of 20 years imprisonment. Mohammed Skaf, as an accessory before the fact, was liable to the same maximum sentence: s 346 of the Crimes Act. It is best to set out the sentences which Mathews AJ passed later, as they must be understood as part of a complex of sentences for these offences and other offences in which each applicant was involved. 82 For the purpose of these applications, the brief summary of the facts set out earlier in this judgment (at [66]) needs to be expanded. In her remarks on sentence, her Honour recorded the facts as she found them as follows: "2 The events giving rise to these charges occurred on 12 August 2000. The complainant, a sixteen year old school student, had previously been a friend of Mohammed Skaf, although he had never told her his correct name: she knew him as Sam. Early on the evening of Saturday, 12 August, Mohammed Skaf telephoned the complainant at her home at Glenwood Park, and suggested that she accompany him on a drive to the city. She agreed to do so, after getting her mother's permission, and he arranged to collect her in his car. He told her that he was on his own. However, when he arrived at her house there were two other men in the car. The complainant had met one of them, the driver, once before. The other man, "Ibrahim", was unknown to her. The complainant got into the back seat beside Mohammed Skaf. The car was then driven to Gosling Park in Greenacre. Mohammed Skaf told the complainant that they were going there so that he could collect a $600 debt, and he said that they would then continue their drive into the city. During the course of this journey the men were frequently talking on their telephones in a language, presumably Arabic, which the complainant could not understand. 3 In due course the car parked in a parking area beside Gosling Park. The two men in the front seat got out, leaving Mohammed Skaf alone with the complainant. He commenced making sexual advances towards her, but she rebuffed him and he desisted. He then left, and Ibrahim got into the car and also started making sexual advances towards her. She again resisted, and eventually she got out of the car. While she was out of the car, a white van pulled into in the carpark, followed shortly behind by a blue car. Eight men got out of the white van and three more from the blue car. They were obviously known to Ibrahim, who went over and talked to them. The driver of the white van was Bilal Skaf. He came over to the complainant and introduced himself as "Sam's brother Sam". He asked her if she would like to go for a walk. She declined, saying that she was waiting for Sam. He insisted, and after a little while he grabbed her beneath her hair and called out "Allah, boys Allah." At that point some of the other men came over and assisted Bilal Skaf dragging the complainant across the park. They reached a point near a pump shed, where she was placed on the ground. There she was held down by several of the men and part of her clothing was removed. The complainant was crying and screaming and trying to escape. Bilal Skaf said "this one is a feisty one", and then proceeded to have sexual intercourse with her whilst she was being held down. This constituted the first charge of aggravated sexual assault. 4 After Bilal Skaf had finished, another man came over saying "it's my turn now", and proceeded also to have sexual intercourse with the complainant. This constitutes the second offence charged against Bilal Skaf, he being there as an aider and abettor. 5 During all this time, according to the complainant, the men were standing around laughing and talking in their own language. After the second act of sexual intercourse, one of the men placed a handgun against her head. The same man kicked her in the stomach. At that stage she was in grave fear for her life. She got up and ran extremely fast across the park and through the parking area where the three vehicles had been left.. She could hear the men running after her. One of them, a man with a ponytail, tried to lure her into the white van. She kept on running and finally reached a phone box on the corner diagonally opposite the car park. She picked up the telephone but she did not know who to ring, as she did not want her mother to see her in that state. At this point the man with the pony tail approached in the white van. He had a gun underneath his jacket and he commanded that she get into the van. The complainant refused. She was screaming throughout this time. Fortunately for her another man, a stranger, came up to her at that point, and the man with the pony tail left. The newcomer, Mr Anderson, took the complainant to his nearby apartment where the complainant telephoned her then boyfriend who later came and collected her. Whilst she was at Mr Anderson's apartment, she received a call on her mobile phone. It was from Mohammed Skaf, who asked where she was and told her that he would come and pick her up and take her home. The complainant forcefully declined. Shortly afterwards her boyfriend arrived and took her back to her home. The next day she told her mother that she had been sexually assaulted and two days later she went to the police. In the meantime she received an SMS message from Mohammed Skaf saying that he had got into a "punch-up" because of what had happened to her." Bilal Skaf 83 As noted earlier (at [8]), Bilal Skaf had earlier been found guilty of two sets of offences, unrelated to the present offences, also committed in August 2000. It is necessary to trace the history of the sentences passed upon him in relation to all three sets of offences to understand the place which the sentences passed by Mathews AJ take in a wider sentencing spectrum. Those sets of offences are as follows: · The Northcote Park offences of 10 August 2000; · The Gosling Park offences of 12 August 2000 (the subject of the present appeal); · The Bankstown offences of 30 August 2000. It is not necessary to detail the Northcote Park and the Bankstown offences; it is sufficient to refer to them globally. 84 In 2002 Finnane DCJ sentenced him for all three sets of offences, as follows: · For the Northcote Park offences, an aggregate sentence of imprisonment of 30 years, with an effective non-parole period of 20 years, to date from 12 February 2001; · For each of the offences at Gosling Park, concurrent terms of 20 years, with a non-parole period of 9 years, to date from 12 February 2021; · For the Bankstown offences an aggregate term of 26 years, with an effective non-parole period of 10 years, to date from 12 February 2030. It will be seen that the overall sentence for each of the second and third sets of offences was directed to be served cumulatively upon the overall sentence for the set of offences which preceded it, that is, at the expiration of the effective non-parole period fixed in respect of that set of offences. It was in this way that the aggregate sentence for all three sets of offences of 55 years, with an effective non-parole period of 39 years, was arrived at. 85 On 6 May 2004,when this Court set aside the convictions for the Gosling Park offences at the first trial, it was necessary to adjust the commencement date of the sentences for the Bankstown offences, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999. Those sentences were directed to commence 9 years earlier, so that the aggregate sentence of 26 years with a non-parole period of 10 years was to date from 12 February 2021. The appellant then became eligible for release on parole on 11 February 2031. 86 On 12 August 2005, he was sentenced by Hulme DCJ for an unrelated offence of stealing a motor vehicle to imprisonment for a fixed term of 9 months, to expire on 11 May 2031. It is apparent that his Honour intended that he should serve an additional period of 3 months for that offence. 87 On 16 September 2005, this Court allowed appeals by the applicant against the sentences for the Northcote Park and Bankstown offences: R v Bilal Skaf [2005] NSWCCA 297.He was re-sentenced as follows: · For the Northcote Park offences, terms aggregating 18 years, with an effective non-parole period of 14 years and 3 months, dating from 12 February 2001; · For the Bankstown offences, sentences aggregating 20 years with an effective non-parole period of 14 years, dating from 12 February 2009. The overall sentence for the two sets of offences was imprisonment for 28 years, expiring on 11 February 2029, with an effective non-parole period of 22 years, expiring on 11 February 2023. No adjustment was made to the commencement date of Hulme DCJ's sentence. 88 This is how things stood at the time that the appellant came to be sentenced by Mathews AJ. (Because the offences were committed in 2000, he was sentenced in accordance with the procedure set out in s44 of the Crimes (Sentencing Procedure) Act before its amendment in 2002.) Her Honour sentenced him as follows: · On the second count, imprisonment for 17 years with a non-parole period of 11 years, commencing on 12 February 2021; · On the third count, imprisonment for 14 years with a non-parole period of 8 years, commencing on 12 February 2025. Thus, the sentence on the third count was accumulated upon the sentence for the second count by 4 years. The aggregate sentence was imprisonment for 18 years, commencing on 12 February 2021 and expiring on 11 February 2039, with an effective non-parole period of 12 years, expiring on 11 February 2033. 89 As noted, the overall sentence passed by the Court of Criminal Appeal for the Northcote Park and Bankstown offences was 28 years, expiring on 11 February 2029, with an effective non-parole period of 22 years, expiring on 11 February 2023. Accordingly, the aggregate sentence passed by Mathews AJ commenced 2 years prior to the expiry of that effective non-parole period, and had the effect of extending both the overall sentence and the effective non-parole period fixed by the Court of Criminal Appeal by 10 years. 90 Her Honour referred to the sentence passed by Hulme DCJ, noting that its effect had been to defer the applicant's opportunity for release on parole for a further 3 months. However, she thought it appropriate to disregard that sentence which, she observed, would be "entirely subsumed" within the sentences she was to pass. 91 At the time of all these offences (including the subject offences) the appellant was not quite 19 years old. He had a minor criminal history, which her Honour appears to have treated as of no consequence. He is of Lebanese origin, and a psychological report disclosed some behavioural problems during his school years but, apparently, nothing of any particular significance for the purpose of sentence. 92 For the whole of his period in custody to the time he was sentenced by her Honour, he had been on protection because of the nature of his offences and had been classified as "an extremely high risk inmate." He had spent most of his time in segregation and had been deprived of educational opportunities. He had had a number of health problems since going into custody, including respiratory difficulties and bouts of depression. 93 Her Honour concluded that, although it was Mohammed Skaf who had lured the complainant to the park, it was this appellant who was "the orchestrator and organiser of the events of that night." She described his offences as "extremely serious", although falling short of the worst category. As is reflected in the sentences passed, she found the offence the subject of the second count, in which he was the "principal assailant", the more serious of the two. 94 Mr Haesler SC, for the appellant, argued that her Honour had failed properly to apply the principle of totality and that, in any event, the sentence for the second count is manifestly excessive. In the context of the totality ground, he submitted that in relative terms the appellant's position after her Honour's sentences is worse than it had been when he was sentenced by Finnane DCJ after the first trial. Her Honour's overall sentence of 18 years is less than the 20 years passed by Finnane DCJ but, whereas his Honour specified a non- parole period of 9 years, her Honour's effective non-parole period is 12 years. That said, unlike Finnane DCJ's sentences, her Honour's overall sentence was partly concurrent with the existing sentences to the extent of 2 years. Moreover, as Mr Haesler acknowledged, allowance has to be made for the partly concurrent sentence passed by Hulme DCJ. In the result, given that Hulme DCJ intended that the appellant should serve a further 3 months for the car stealing offence, her Honour's effective non-parole period might be seen as 9 years and 9 months. 95 Mr Haesler also pointed to a difference between the structure of what might be described as the global sentence for all three sets of offences. In the global sentence passed by Finnane DCJ, 55 years with a non-parole period of 39 years, the non-parole period was, in round figures, 71% of the total sentence. The effect of the sentences passed by her Honour was to produce a global term of 38 years with a non-parole period of 32 years, that proportion being 84%. 96 The argument was developed by reference to the line of authority that ordinarily an accused person after a re-trial should not face a longer sentence than that imposed at the first trial. The development of that approach through the cases, beginning with R v Gilmore (1979) 1 A Crim R 416, was traced in Tarrant v R [2007] NSWCCA 124, (2007) 171 A Crim R 425. It is not suggested that the evidence against the applicant at his re-trial was different from that at the first trial, or that there is any basis upon which a more adverse view might have been taken of his criminality: cf Tarrant. 97 However, it is not always easy to maintain this approach when, as here, the sentences under consideration are part of a complex web of sentencing orders. That was the case when Finnane DCJ originally sentenced the applicant for the Gosling park offences, and it remained so when Mathews AJ came to sentence him after his re-trial. Not only did her Honour have to accommodate those sentences within the spectrum of the sentences for the Northcote Park and Bankstown offences, she had to do so at a time when the sentences for those offences imposed by Finnane DCJ had been reduced and restructured by this Court. 98 In the event, it is not necessary to express any concluded view about this argument because we are persuaded that her Honour's sentences failed to afford adequate weight to the principle of totality. The ground that the sentence for the second count is manifestly excessive was developed in written submissions by reference to a schedule of cases dealt with in this Court which involved very serious sexual assaults. Certainly, the sentence of 17 years, against a statutory maximum of 20 years, is heavy. However, whether it is manifestly excessive is also a matter which we do not need to determine. 99 In oral argument Mr Haesler linked the two grounds, saying that "in a sense they're two sides of the one coin." It is apparent from her Honour's remarks that she was conscious that totality was an issue which loomed large in her sentencing exercise. Having referred to the fact that there was general agreement that the sentences she passed upon the appellant should be partly cumulative upon his existing sentences, her Honour added at [35]: "A tension exists between the principle of totality on the one hand, and, on the other, the need to ensure that a person who deliberately commits a series of unrelated criminal offences receives adequate punishment for each of them. This tension is particularly evident in Bilal Skaf's case, given the very lengthy sentences which he is presently serving, on the one hand, and the extreme seriousness of these offences, on the other. The first factor would tend to support a lesser accumulation of the sentences for these offences, while the second would favour a much greater accumulation of sentences." 100 Her Honour decided that she should be guided by the manner in which this Court dealt with the Northcote Park and Bankstown offences. She noted that the aggregate sentence for the Bankstown sentences was cumulative upon the aggregate sentence for the Northcote Park offences to the extent of 10 years. As we have said, that is the figure by which her Honour's sentences extended the global sentence and non-parole period imposed by this Court (leaving out of account the 9 month sentence passed by Hulme DCJ). 101 Her Honour faced a most difficult sentencing task, highlighted by the passage from her remarks quoted above. The appellant was to be sentenced for very serious offences, committed only days after another grave criminal episode of a similar kind. To balance the demand for retribution and deterrence and the principle of totality was a challenging undertaking indeed. Nevertheless, we are persuaded that the sentences fail to afford adequate weight to the consideration of totality. This Court, in dealing with the Northcote Park and Bankstown offences, structured the sentences for those offences with an eye to totality. That principle had to be applied afresh when sentencing for the present offences, in the light of the aggregate sentence this Court had imposed. 102 By the time he came to be sentenced by her Honour, the appellant was a young man already facing very long sentences for those other two criminal episodes. As Mr Haesler put it in oral argument, the objects of deterrence and denunciation had already been met "to a considerable degree" by the sentences aggregating 28 years with a non-parole period of 22 years already in place. An increase of that aggregate term by 10 years for the present offences was more than was reasonably required to achieve those objects. 103 In the event of re-sentence, we received a body of additional material in an affidavit by the appellant and two affidavits by his solicitor, to which were annexed a psychiatric report and copies of a number of Department of Corrective Services documents. This was supplemented by two brief affidavits by a senior officer at Goulburn Correctional Centre, where the appellant has been held, relied upon by the Crown. It is unnecessary to recite that material in any detail. It is sufficient to say that it discloses that the appellant remains on protection and continues to be classified as an extremely high-risk inmate. That is likely to remain the case in the short to medium term. His conditions of custody are attended by a high level of security, and they limit or impose restrictions upon his access to work, education, welfare facilities, visits, sport and fitness training, and religious observance. It is appropriate to have regard to this material in determining the sentences this Court should impose. 104 We would reduce each of the sentences passed by her Honour, while maintaining the accumulation of the second sentence upon the first by 4 years. The effect would be to reduce the aggregate sentence and the effective non-parole period each by 2 years, producing an aggregate term of 16 years with a non-parole period of 10 years. The global sentence for all the appellant's offences would be reduced to the same extent. 105 Accordingly, leave to appeal against sentence is granted, the appeal is allowed, and the sentences passed by Mathews AJ are quashed. In lieu, the appellant is sentenced as follows: · On the second count, imprisonment for 15 years, commencing on 12 February 2021 and expiring on 11 February 2036, with a non-parole period of 9 years, expiring on 11 February 2030. · On the third count imprisonment for 12 years, commencing on 12 February 2025 and expiring on 11 February 2037, with a non-parole period of 6 years, expiring on 11 February 2031. Thus, the appellant's total sentence will expire on 11 February 2037, and he will be eligible for release on parole on 11 February 2031. Mohammed Skaf 106 Mohammed Skaf had not been involved in the Northcote Park offences but was a participant in the Bankstown incident. He also was sentenced by Finnane DCJ for a series of offences arising from that incident. On 16 September 2005, this Court allowed his appeal against those sentences and substituted terms aggregating (in round figures) 19 years, with an effective non-parole period of 11 years, dating from 3 January 2001: R v Mohammed Skaf [2005] NSWCCA 298. 107 Mathews AJ sentenced him to imprisonment for 15 years with a non-parole period of 7½ years, commencing on 2 January 2012. That is the date of expiry of the effective non-parole period set by the Court of Criminal Appeal. The effect of her Honour's sentence was to extend the aggregate sentence for the Bankstown offences (again in round figures) by 7 years, and the effective non-parole period by 7½ years. Thus, his global sentence for all offences is 26 years with an effective non-parole period of 18½ years, that period expiring on 1 July 2019. 108 Her Honour found that his role in the events of Gosling Park, although pivotal, was less than that of his brother. As he had left the scene before Bilal Skaf arrived, aggravating features of the principal offence, such as "the actual and threatened violence to the complainant," could not be attributed to him. She added, however, that she was not " belittling" his role, and said at [43]: "In fact his involvement in the evening's activities was an absolutely crucial one. Without him, the principal offence would not have been committed at all." 109 At the time of these offences and of the Bankstown offences, this appellant was only 17 years old. It seems that his only other offences were unrelated matters of a different nature, taken into account when he was sentenced for the Bankstown offences. He also had exhibited behavioural difficulties in his school years and, indeed, was expelled from high school. Her Honour accepted that he had always been strongly influenced by his brother, Bilal. 110 A matter which her Honour considered to be of great significance was that, after going into custody, he was diagnosed with a very serious illness, Hodgkin's disease. This is a lymphoid malignancy which was once fatal, but is now amenable to treatment by chemotherapy and radiotherapy. The appellant was treated by both those means. His chemotherapy was generally well tolerated, but he developed two significant complications, shingles and a venous thrombosis. Throughout his treatment he was kept in a secure unit at the Prince of Wales hospital where, her Honour noted, "he was deprived of most facilities and all educational services, and was allowed only infrequent visits from his family." He became very anxious and depressed, and it seems that the shingles were the result of his anxiety. 111 His treatment, which had ceased three years before, appeared to have been effective. He had been in remission and his prognosis was favourable. Nevertheless, he still felt unwell and would continue to undergo symptoms arising either from the disease or the treatment for it. Because of his condition, her Honour found, his imprisonment had involved "much greater hardship for him than it would for other inmates." 112 His counsel, Mr Dhanji, argued that the sentence is manifestly excessive and that her Honour's approach to sentence disclosed three specific errors: an inadequate application of the principle of totality, failure to have proper regard to the appellant's youth, and an inadequate measure of distinction between the appellant's sentence and those passed upon his brother. It becomes unnecessary to determine any of these grounds because, as Bilal Skaf's sentences have been reduced, it is inevitable that this appellant's sentence be also adjusted. That adjustment must reflect his lesser role in the principal offence perpetrated by his brother, his youth and the influence of his brother, together with the state of his health and its effect on his experience of incarceration. Totality, of course, remains an important factor. His youth and his health were taken into account by this Court when sentencing him for the Bankstown offences. 113 In his case also, leave to appeal against sentence is granted and the appeal is allowed. The sentence passed by Mathews AJ is quashed and, in lieu, the appellant is sentenced to imprisonment for 12 years, commencing on 2 January 2012 and expiring on 1 January 2024, with a non-parole period of 6 years, expiring on 1 January 2018. Thus, the appellant's total sentence will expire on 1 January 2024, and he will be eligible for release on parole on 1 January 2018. Orders 1. Both appeals against conviction are dismissed. 2. In relation to Bilal Skaf: (a) Leave to appeal against sentence is granted, the appeal is allowed, and the sentences passed by Mathews AJ are quashed. In lieu, the appellant is sentenced as follows: · On the second count, imprisonment for 15 years, commencing on 12 February 2021 and expiring on 11 February 2036, with a non-parole period of 9 years, expiring on 11 February 2030. · On the third count imprisonment for 12 years, commencing on 12 February 2025 and expiring on 11 February 2037, with a non-parole period of 6 years, expiring on 11 February 2031. Thus, the appellant's total sentence will expire on 11 February 2037, and he will be eligible for release on parole on 11 February 2031. 3. In relation to Mohammed Skaf: (a) leave to appeal against sentence is granted and the appeal is allowed. (b) The sentence passed by Mathews AJ is quashed and, in lieu, the appellant is sentenced to imprisonment for 12 years, commencing on 2 January 2012 and expiring on 1 January 2024, with a non-parole period of 6 years, expiring on 1 January 2018. Thus, the appellant's total sentence will expire on 1 January 2024, and he will be eligible for release on parole on 1 January 2018. ********** 19/12/2008 - The initial of Mohammed Skaf's counsel should have been "H' not "A" - Paragraph(s) cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.