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[2013] NSWSC 181
Supreme Court of NSW
2013-03-12
Beech-Jones J
Original judgment source is linked above.
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.
Convictions and Sentences 6An overview of the course of the trial and the appeals is set out in the Bilal Skaf Application at [9] to [16]. Mohammed Skaf was arrested and charged on 7 October 2000. He faced 4 counts on a 17 count indictment presented at the 2002 trial, namely:
The Crown Case against Mohammed Skaf 11In Bilal Skaf's application at [25] I extracted the description of the Crown case set out in the 2004 Conviction Appeal in so far as it was based on the evidence given by Miss C at the 2002 trial. It was the Crown case that Mohammed Skaf was the "male in the yellow jumper". Counts 1 and 2 against Mohammed Skaf concern events in the toilet block at the Marion Street carpark (2004 Conviction Appeal at [12] and [14]) and counts 14 and 15 concern events at the "industrial estate" (2004 Conviction Appeal at [41] to [42]). This was subsequently identified by Miss C as an industrial estate in Chullora (Bilal Skaf Application at [38]). 12Mohammed Skaf did not give evidence at the 2002 trial. The Court of Criminal Appeal described his defence as involving an assertion that he had consensual intercourse with Miss C in the Marion Street carpark toilets and a denial that he was the "male in the yellow jumper" who sexually assaulted her at the industrial estate (2004 Conviction Appeal at [55]). 13I have described the evidence surrounding the provision of Miss C's first and second statements on 1 September 2000 and 21 September 2000 respectively and the differences between them in the Bilal Skaf application at [36] to [45]. In light of that it is necessary to outline the course of the investigation and the material relied on by the Crown in its case against Mohammed Skaf in addition to the evidence of Miss C. 14On 26 September 2000 Miss C identified Mohammed Skaf from a photoboard as the "man in the yellow jumper" (2004 Conviction Appeal at [62]). This was after she had provided the second statement. (In support of this application Mohammed Skaf refers to an occasion on 2 September 2000 when Miss C failed to identify him from a photoboard. I address this below.) 15On 8 October 2000 the police searched the home of Bilal and Mohammed Skaf. They located a yellow long sleeved jumper with a "Champion" logo at the bottom of the wardrobe in their bedroom (2004 Conviction Appeal at [64]). 16Mohammed Skaf was interviewed on four occasions, twice in the early hours of 2 September 2000, once on 7 October 2000 and again on 13 November 2000. In the first and third interviews he denied, inter alia, being the male in the yellow jumper and having any knowledge of Miss C (2004 Conviction Appeal at [68] to [70]). He maintained that on 30 August 2000 he had attended a go-cart racetrack in Canberra (which was later shown not to have been open to the public on that day), and claimed to have stayed at a particular motel in Canberra (that police inquiries revealed did not exist). In the second interview he stated that he did not wish to participate in a line up. 17In his fourth interview Mohammed Skaf admitted that he had lied about travelling to Canberra on 30 August 2000. He admitted that he was the male person in a yellow jumper depicted in video footage from Bankstown railway station. He claimed that he had consensual sex with Miss C in the toilet block near the Marion Street carpark. He claimed that after he had finished and left the block, another male travelling with him went inside and that after that he and that male left and caught a bus. He denied having anything further to do with Miss C. He denied that he used or took her phone. He stated that she gave him her number which he saved (2004 Conviction Appeal at [71]). 18The Court of Criminal Appeal identified a number of pieces of evidence confirmatory of Miss C's evidence in so far as they implicated Mohammed Skaf (2004 Conviction Appeal at [102] to [117]). They are to be considered bearing in mind his admission in his fourth interview that he lied in the first and third interviews and his concession that he was present at the toilet block near the Marion Street carpark wearing a yellow jumper and had sex with Miss C. 19First, there was the evidence of Miss C's friend ("Leah") referred to in the 2004 Conviction Appeal at [8] to [9]. Miss C stated that at Bankstown police station she texted Leah and asked her to phone back and that she (Miss C) told Leah about her concerns. Miss C said that the "male in the yellow jumper" took the phone from her. Leah confirmed the evidence about the disguised phone call and the complainant's nervous or panicky state. She stated that she was told by the male speaker who grabbed the telephone "[l]isten bitch, your sister will be home in ten to twenty minutes". Leah said that she rang back and the telephone was switched off (2004 Conviction Appeal at [8] to [9]). This evidence was said by the Crown to strongly support its case that sexual intercourse at the toilet block was not consensual. 20Second, the Crown relied on a consciousness of guilt on Mohammed Skaf's part by reason of the lies he told in his first and third interview and his putting forward a false alibi (2004 Conviction Appeal at [102]). 21Third, there was a significant body of evidence corroborative of Miss C's testimony concerning the use of Mohammed Skaf's mobile phone and Miss C's mobile phone with Mohammed Skaf's SIM card. 22Miss C claimed that the male in the yellow jumper took her telephone from her shortly after their arrival at Bankstown train station (2004 Conviction Appeal at [8]). She said that soon after she entered the black car after being assaulted at the toilet block she saw "H" leave that car and retrieve her SIM card from Mohammed Skaf (2004 Conviction Appeal at [20] and [111]. Later while she was being transported (and assaulted) in the red car she said that she saw a black car arrive with three occupants along with the male in the yellow jumper and she heard her phone ring as it had a distinctive ring tone (2004 Conviction Appeal at [39]). She said that after she was sexually assaulted at the industrial estate she was told to get in the black car (2004 Conviction Appeal at [45]). The male in the yellow jumper came up to the driver's side of the window and passed her telephone to one of the males in the car who had assaulted her. That male handed Miss C her telephone, told her to place the SIM card inside and demanded her telephone number. He rang her phone (2004 Conviction Appeal at [45]). 23Mohammed Skaf's telephone was found to contain Miss C's number under the name "Amanda" which was the name she gave on the train (2004 Conviction Appeal at [45]). The evidence from various witnesses employed by Vodafone concerning Mohammed Skaf's calls was particularly telling. It was described in the Crown case statement and extracted in the 2004 Conviction Appeal at [117] as follows: "In respect of 0415 681 064 (the mobile of Mohammed Skaf) · Calls were made from within the 21163 sector at 7:23pm (to Vodafone), 7:24pm and 7:44pm (to Bilal Skaf on 0414 076 468) and at 8:28pm (to Ali Skaf on 0415 889 122). · Calls were made from within the 21168 sector at 8:34pm (to Bilal Skaf on 0414 076 468), at 8:39pm and 8:40pm (to Vodafone) and at 9:03pm (to "H" on 0404 227 642). · Calls were made from within the 21163 sector at 10:04pm (to Ali Skaf on 0415 889 122), 11:06pm (to 0404 155 188) and at 11:11pm (to Tayyab Sheikh on 0415 681 052). The evidence of Justin Stark was that there had been a change in the IMEI identification number for Mohammed Skaf's SIM card from 7:23pm to 9:03pm on 30 August 2000 (exhibit C31). The IMEI number during this time (and only in this period) matched the number of the complainant's mobile phone handset. This indicated that the SIM card from Mohammed Skaf's mobile phone was placed into the complainant's mobile phone handset for that period of time. Afterwards the IMEI number reverted to Mohammed Skaf's mobile phone handset. The Crown relied on this evidence to show that Mohammed Skaf had not left after the incident in the toilet block in the Marion Street carpark, as he had claimed to police in his final interview on 13 November 2000." Sector 21168 served calls made to or from the Chullora industrial complex. Sector 21163 served calls made to or from an area that included Valentia Street, which was the location of the home of Bilal and Mohammed Skaf (2004 Conviction Appeal at [115] to [116]). 24This material strongly confirms the account of Miss C as to what occurred in relation to the removal of her mobile phone and the SIM card and their staggered return to her during the night. It is also completely consistent with her evidence as to the ongoing role of the male in the yellow jumper after he sexually assaulted her in the toilet at the Marion Street carpark. It is inconsistent with Mohammed Skaf's assertion in his fourth interview that he had nothing further to do with Miss C after he left that location. It also points strongly to the presence of Mohammed Skaf at the Chullora industrial complex that night. 25In the Bilal Skaf Application at [36] to [41] I described some of the changes in the sequence of events as well as to the identity and number of offenders between the first and second statements. In both statements Miss C described an offender who was wearing a yellow jumper. However in the first statement this offender's involvement ceased after she was sexually assaulted in the toilet at the Marion Street carpark. In the second statement (and her evidence) Miss C stated that this offender sexually assaulted her at the industrial estate. 26In the first statement Miss C stated that the male in the yellow jumper took her phone from her while she was on the train. She did not state when she retrieved it although it appears to be sometime just prior to being dropped at Lidcombe train station when the ordeal was almost over. Miss C's first statement does not refer to the return to her of her SIM card without the phone, the use of her phone with another SIM card or her providing her telephone number. However, in her second statement Miss C described receiving her SIM card without the phone and providing her telephone number. These matters were repeated by her in her evidence at the 2002 trial. In addition in her evidence she recounted hearing her phone being used after her SIM card had been returned to her. As I have stated that evidence was supported by the evidence from the Vodafone employees. 27Thus, in a number of important respects, the independent evidence adduced at the 2002 trial strongly confirmed a number of events that were recounted in Miss C's second statement that were not contained in her first statement. The evidence of Mohammed Skaf's mobile phone usage powerfully supports her evidence as to the retrieval of the SIM card and his use of her phone with his SIM card. More broadly it strongly demonstrates his ongoing involvement in the assaults committed upon her. The mobile phone records also point to Mohammed Skaf's presence at the Chullora industrial estate. It was only in the second statement that Miss C stated that she was sexually assaulted at an industrial estate.
First basis for the application: Miss C's dreams 28I set out the relevant provisions of the Review Act and some of the principles governing their application in the Bilal Skaf Application at [17] to [24]. 29The first basis for Mohammed Skaf's application is that the reliability of Miss C's evidence was "severely compromised by a series of 'dreams' and 'flashbacks' that [she] had immediately following the events on 30 August 2000" prior to the preparation of the second statement and that this information was known to investigators prior to the 2002 trial, but was not disclosed to the defence. 30The same submission was made in support of the application of Bilal Skaf. I addressed and rejected that contention (Bilal Skaf Application at [36] to [87]). The reasons I gave are equally applicable to Mohammed Skaf's application. In summary the expert psychiatric evidence from the re-trial of Mohamed Ghanem upon which Mohammed Skaf relies and which is said to demonstrate the unreliability of Miss C's evidence is subject to the important caveat that there was no independent corroboration of that part of Miss C's evidence which it is claimed she recalled from her dreams (ie those parts of her evidence which first appeared in her second statement). There is, however, a large body of evidentiary material supporting that part of her evidence, namely the evidentiary material pointing to the sexual assault of her by Bilal Skaf at the Chullora industrial estate (see Bilal Skaf Application at [31] to [35]) and the material concerning Mohammed Skaf which I have referred to above at [26] to [27]). 31Further the expert evidence upon which this submission is based assumes that that part of Miss C's evidence which first emerged in her second statement was exclusively derived from Miss C's dreams or nightmares. For the reasons stated in the Bilal Skaf Application at [67] to [68] I do not consider that assumption is soundly based. It rests upon an overly literal reading of Miss C's evidence. 32Otherwise, for the reasons set out in Bilal Skaf's Application at [78] to [87], I do not accept that the failure of the investigating police to disclose what was stated to them about the process by which Miss C recalled the events described in her second statement involved a breach of the prosecutorial duty of disclosure or casts any doubt upon Mohammed Skaf's guilt.
Second basis for the application: Miss C's identification of Mohammed Skaf 33The second basis for the application is that Miss C's identification of Mohammed Skaf on a police photoboard on 26 September 2000 was severely compromised by the "dreams" and "flashbacks" that Miss C experienced and that this was known to the investigators but not disclosed prior to the 2002 trial. This complaint fails for the reasons I have already given, but it is necessary to note the following concerning Miss C's photoboard identification of Mohammed Skaf. 34As I have stated, in her first statement Miss C described one of the offenders as the male in the yellow jumper. She also stated that he had "short, curly dark brown hair that was gelled or waxed" as well as thick eyebrows, acne and spoke with a slight accent. This description was said not to match Mohammed Skaf. The submissions of Mohammed Skaf refer to an occasion on 2 September 2000 when Miss C was shown a photo-board that included Mohammed Skaf, but she failed to identify him. The Crown case statement described what occurred in the following terms: "On 26 September 2000 the complainant identified Mohammed Skaf from a series of fifteen photos on a photo board. He was the male in the yellow jumper. In cross-examination she said that she [had] been first shown the photo board on 2 September 2000 and had told police that the male in photo 9 looked more like the male than the male in photo 14 because the nose of the male in the latter photo was too big. The complainant explained that she had been confused. She agreed that in a subsequent viewing of the photo board on 21 September 2000 she identified the male as the male depicted in photo 14, this time because of his big nose." (references omitted) The reference to 21 September 2000 in this extract appears to be mistaken. It is common ground between the parties that Miss C's second viewing of the photoboard took place on 26 September 2000. 35The matters pointed to by Mohammed Skaf concerning his identification on 26 September 2000 by Miss C only reinforce the reasons I gave for rejecting the first basis for his application. As I have said it was not in dispute at the 2002 trial that Mohammed Skaf was the male in the yellow jumper who was present on the train and took Miss C to the toilet block at the Marion street carpark where they had sex (either forced or consensual). Miss C's failure to identify him on the photoboard on 2 September 2000 confirms the fragility of her recollection at that point in time. In contrast she correctly identified him on 26 September 2000 as one of the persons present on 30 August 2000. This was after she had the "dreams" and "flashbacks" and only serves to confirm that by that time her recollection was more accurate and reliable than it had been on 2 September 2000. Even if her recollection as at 26 September 2000 was exclusively based on her dreams and flashbacks then they were accurate because they apparently enabled her to identify a person, namely Mohammed Skaf, who admitted meeting her on the train and taking her to the toilet block at the Marion Street carpark. 36As part of his appeal against his conviction Mohammed Skaf complained about the directions given by the trial judge concerning his identification by Miss C. The Court of Criminal Appeal rejected this ground stating (2004 Conviction Appeal at [302]: "But as regards Mohammed Skaf there is a further air of unreality about this present complaint [about the directions concerning identification]. The real issue touching his guilt in relation to the sexual assault at the industrial complex turned upon the cogency of the evidence that the man who undisputedly was on the train and the first to go into the toilet cubicle at Marion Street was the same as the man in the yellow jumper who turned up at the industrial complex. The complainant gave firm and compelling evidence that he was, and this evidence drew considerable support from the independent material about the mobile phone and the SIM card in it." 37This passage confirms that the only real issue of identification concerning Mohammed Skaf was whether the male in the yellow jumper that she met on the train was also present at the industrial estate. The evidence concerning his mobile phone usage and Miss C's SIM card strongly supports her evidence that he was.
Third basis for the application: Non disclosure of the finger- printing of the toilets. 38The third basis of Mohammed Skaf's application is that there was a failure on the part of the Crown to disclose to the defence that fingerprint evidence was taken from the toilets at the Marion street carpark. 39The Crown case statement records that the following evidence was led at the trial concerning the state of the toilet block: "There were three toilets in the Marion Street car park: a male toilet on the left, a female toilet in the middle and a disabled toilet on the right. The middle toilet was clean and tidy, but the door was broken off the top hinge. The complainant told Constable Norris that she had been sexually assaulted in there. The toilet was cleaned early in the morning on 31 August 2000 by Wayne Jaubert, from Bankstown Council, and his co-worker. Jaubert gave evidence of having seen damage in the men's toilet, including a broken lock on the door, a broken paper holder and a broken seat. The door to the ladies toilet was broken, and the latch for the bolt on the locking mechanism was missing, suggesting that the door had been forced off. The toilet seat was also broken off." (Reference omitted) 40The Crown case statement also states that the first time Miss C approached the police was at 1.30pm on 31 August 2000. Thus the earliest time the police could have inspected the toilets was after they had been cleaned. 41At some point during the 2002 trial and after the Crown had closed its case Sergeant Michael Porta gave evidence on a voir dire. On this application, it was not made clear what the voir dire related to but the transcript suggests that it concerned the contents of a statement of a co offender, "H", that was served on the defence. In any event on the voir dire Detective Porta gave the following evidence about his attempts to identify the woman who spoke to Miss C when she emerged from the toilets: "In relation to - I'm not sure if it was Mrs Langley or Ms Francis [Counsel for the defence] asked (sic) about the black junkie - those enquiries, the only person that came to light there was a woman called Genevieve Strickland, whose palm print was found in the toilets and she was in custody as at 30 August, so that enquiry led to nothing and she was a person who did in fact have some darkened skin." (emphasis added). 42The submissions of Mohammed Skaf point to this as evidence that the toilet block was fingerprinted. They also rely on an entry in Senior Constable Brazel's duty book dated 19 September 2000 which is said to read: "then to fingerprints major crime Ferguson Centre Parramatta re [Miss C's surname] elimination prints". 43The submissions on behalf of Mohammed Skaf contend that the finding of a print in the toilets suggests that the toilets had not been washed or cleaned prior to the police fingerprinting them and that that fact should have been disclosed to the defence. The relevance of this is said to relate to the accuracy of Miss C's description of how she was sexually assaulted in the toilet block in the Marion Street carpark. In her evidence she described being sexually assaulted from behind while pinned against a wall by the male in the yellow jumper. In her first statement she described having her hands placed on the wall during the assault that occurred immediately after the assault by the male in the yellow jumper. It was submitted that Mohammed Skaf was "severely prejudiced" by the failure to disclose this material (and denied the benefit of) any "implications consistent with innocence that might have been disclosed by the finger print evidence". 44The Attorney General's submissions note that the entry in Senior Constable Brazel's duty book does not indicate what locations, vehicles or objects the elimination prints were obtained from. Otherwise they point to the cleaner's evidence and note that at the trial Mohammed Skaf's counsel did not ask any question about the fingerprinting of the toilets. The Crown submits that, as it was common ground that Mohammed Skaf was in the toilet block, it is "not surprising" that his Counsel did not take the matter further at the 2002 trial. I understand this to mean that his Counsel accepted that the result of any such fingerprinting could not have assisted his client's case. 45It is regrettable that the Crown has not supplied a full explanation of what fingerprinting or palm printing was undertaken, when it was undertaken and why it was that this material was not disclosed prior to the 2002 trial. In the absence of such an explanation I must approach the matter on the basis that fingerprinting of the toilets was undertaken and was not but should have been disclosed prior to the 2002 trial (see the discussion in the Bilal Skaf Application at [85] to [86]). Mohammed Skaf's submissions in reply go further and assert that what occurred was a "deliberate withholding" of the fingerprints. This suggestion is difficult to reconcile with the fact that Sergeant Porta freely disclosed the obtaining of a palm print in the course of giving a long explanation in his evidence in chief. If there was a deliberate decision to suppress the fingerprinting or palm printing of the toilets then he would not have disclosed the information in that manner. 46In any event the failure to disclose the fingerprinting does not cause me to have any sense of unease or disquiet concerning Mohammed Skaf's convictions on the counts relating to the sexual assault of Miss C in the toilet block. It follows from the Crown case statement, which was in turn taken from the evidence led at the trial, that the fingerprinting could have only been undertaken after the toilets were cleaned. It is quite conceivable that the cleaning process could have removed some, but not all, of the prints. Hence a palm print of "Genevieve Strickland" was obtained. If Miss C's prints were not found in the location that she indicated by her evidence that would be consistent with them being washed away. If her prints were found in other parts of the toilet then that would not be inconsistent with her version either. It was common ground at the 2002 trial that Mohammed Skaf was in the toilet block so the presence or absence of his prints would be neutral. Thus the presence or absence of Miss C's fingerprints or Mohammed Skaf's fingerprints was irrelevant to the issues at the 2002 trial. 47The conclusion that the outcome of any fingerprint analysis of the toilet block would not have been of any assistance to Mohammed Skaf's defence is reinforced by the complete absence of any protest or even query at the 2002 trial when Sergeant Porta volunteered that a palm print had been obtained from the toilet block. 48I have referred above to the evidence of Miss C's friend Leah confirming that Miss C texted her and that she attempted to contact Miss C only to be told "[l]isten bitch, your sister will be home in ten to twenty minutes" with the phone later being switched off (see above at [19]). This evidence is completely inconsistent with any suggestion that at that point Miss C was willingly accompanying Mohammed Skaf for consensual sex in the toilet block near the Marion Street carpark. Mohammed Skaf's assertion that he had consensual sex with Miss C in the toilet block after having met her on the train was specious. 49It follows that this matter does not cause me to have a sense of unease or disquiet concerning Mohammed Skaf's guilt. It does not raise a doubt or question as to his guilt or as to any part of the evidence in the case against him.
Further Matter: Medical Evidence 50In Mohammed Skaf's submissions in reply it was contended that the evidence given by Dr Marie Anne Nittis was "inconsistent" with Miss C's account. Accompanying the submission was an unsigned expert certificate said to be from Dr Nittis and bearing the date 15 April 2007. In that certificate, Dr Nittis does not specify the question she was asked to address beyond stating that she was asked to comment on the findings of Dr Edwards concerning the injuries suffered by Miss C. Contrary to what was submitted, Dr Nittis' report is not "inconsistent" with Miss C's account. Dr Nittis stated that it is "not unusual to conduct a genital examination, after an assault, and find absolutely no genital injuries at all". The most favourable part of her report for Mohammed Skaf is her statement that she was "surprised" that Miss C could have been sexually assaulted as she stated and emerge "essentially unscathed". However, nothing in her report suggests that that was either impossible or even unlikely. 51This aspect of Mohammed Skaf's application does not raise a doubt or question as to his guilt.
Conclusion 52None of the matters relied on raise a doubt or a question as to Mohammed Skaf's guilt nor do they give rise to a doubt or question about the evidence demonstrating his guilt. 53I refuse the application.
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. Decision last updated: 15 March 2013
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