SKAF, Mohammed - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 181

Supreme Court New South Wales

Medium Neutral Citation: SKAF, Mohammed - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 181 Hearing dates: On the papers Decision date: 12 March 2013 Before: Beech-Jones J Decision: Application refused. Catchwords: CRIMINAL LAW - Inquiry subsequent to conviction - applicant convicted of sexual assault offences - whether doubt or question as to guilt - reliability of evidence - where evidence based on dreams and flashbacks - whether breach of Prosecution's duty of disclosure - Crimes (Appeal and Review) Act 2001, s 78. Legislation Cited: Crimes (Appeal and Review) Act 2001 - s 78 Cases Cited: - R v Chami, M. Skaf, Ghanem, B. Skaf [2004] NSWCCA 36 - R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37; 60 NSWLR 86 - R v Bilal Skaf; R v Mohammed Skaf [2006] NSWSC 394 - R v Mohammed Skaf [2005] NSWCCA 298 - Skaf, Application of Bilal [2013] NSWSC 45 - Skaf, Bilal v R; Mohammed Skaf v R [2008] NSWCCA 303 Category: Principal judgment Parties: Mohammed Skaf (Applicant) File Number(s): n/a

Judgment

Introduction 1Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (the "Review Act"), Mr Mohammed Skaf seeks an inquiry into his convictions for offences he was found to have committed on 30 August 2000. He submits that the matter should be referred to the Court of Criminal Appeal, pursuant to s 79(1)(b) of the Review Act, to be dealt with as an appeal under the Criminal Appeal Act 1912. 2Mohammed Skaf was tried for those offences along with his brother Bilal Skaf and two others. Bilal Skaf was also convicted. He has also made an application under s 78 of the Review Act which was also referred to me. At the time of the publication of this decision I am also publishing my decision refusing Bilal Skaf's application (Application of Bilal Skaf [2013] NSWSC 45 (the "Bilal Skaf Application"). This decision should be read together with that decision. I use the same terminology in this decision as in that decision. 3Three matters are put forward by Mohammed Skaf in support of his application. First he contends that the reliability of the evidence of the complainant in his trial (Miss C) was compromised given her disclosure that her recollection was based on "dreams" and "flashbacks" that she stated that she had some weeks after she was sexually assaulted. Second, he contends that the reliability of Miss C's identification of him from a photoboard on 26 September 2000 was compromised for the same reason. I reject both of these contentions for the same reasons I rejected Bilal Skaf's application, namely that the relevant part of the Miss C's evidence was strongly corroborated by other independent evidence and they otherwise involve an unsafe assumption that her recollection was exclusively derived from her "dreams" and "nightmares". 4Third, Mohammed Skaf contends that there was a failure by the Crown to disclose to the defence prior to the 2002 trial that fingerprint evidence had been taken from the Marion Street carpark toilets. I have considered this complaint on the basis that the Crown obtained this evidence and should have but did not disclose it to the defence prior to its existence being revealed during the course of the 2002 trial. This does not, however, cause me to have a sense of unease or disquiet concerning Mohammed Skaf's guilt. Whatever the outcome of the analysis it could not have affected the jury's deliberations. 5Accordingly the application is refused.