CASE - R v Skaf

FACTS -

1)    Accused – Bilal Skaf

2)    Victim/s – Four young females

3)    Details of Offence/s – 3 in total occurring on different dates:-

(a)  Offences at Northcote Park Greenacre on 10 August 2000.

Two females aged 17 and 18 accepted a lift from Chatswood, lured by the offer of marijuana. They were taken to Northcote Park, Greenacre, where they were forced to perform oral sex on eight males.

(b)  Offences at Gosling Park Greenacre on 12 August 2000.

Another victim was raped at gunpoint by two males at Gosling Park, Greenacre, having been lured there by one of the rapists, who was an acquaintance. She escaped before she could be raped by another twelve males waiting their turn.

(c)  Offences at Bankstown and Chullora on 30 August 2000.

A woman, named C at the trial (she later revealed her identity on the 60 Minutes television program) was lured from a train at Bankstown by the promise of marijuana. She was then raped at three separate locations by 14 males over a period of six hours. As a final humiliation they hosed her down with water. Racist comments were also made to her.

JUDGMENT OF: Studdert J Bell J Latham J

JURISDICTION (APPELLANT): New South Wales Court of Criminal Appeal

LOWER COURT JURISDICTION (ORIGINAL): District Court

LOWER COURT FILE NUMBER(S): 01/11/0750, 01/11/1188

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:

R. Cogswell SC/D. Arnott (Crown)

J. Stratton SC (Applicant)

SOLICITORS:

S. Kavanagh (Crown)

S.E. O'Connor (Applicant)

grounds of appeal that were established: from the judgement date on the 16/09/2005

1. His Honour erred in imposing the maximum available statutory sentence in circumstances that did not constitute the worst class of case.

3. The disparity between the sentences imposed on the applicant and those imposed on his alleged co-offenders is such as to leave the applicant with a legitimate sense of grievance.

5. His Honour erred in not taking into account the fact that the applicant pleaded guilty to the two counts of attempt pervert the course of justice.

6. His Honour erred in not correctly applying the principles in Veen v The Queen (No. 2) (1987).

8. His Honour erred in finding the applicant had attempted to anally penetrate the complainant Miss C as the jury could not agree whether or not he was guilty of anally sexually assaulting Miss C and the applicant was not charged with or convicted of attempted sexual assault.

10. The sentences were individually and collectively manifestly excessive.”

“Grounds 1, 3, 5, 6, 8 and 10 have been established and the intervention of this Court is warranted. The sentences must be quashed and the applicant must be re-sentenced.”

Timeline of Court Cases and Appeals:

Between 19 November 2001 and 20 December 2001 the applicant stood trial before his Honour Judge Finnane QC and a jury, charged with two counts of detain for advantage, nine counts of aggravated sexual intercourse without consent (in company), and two counts of assault. On 20 December 2001 the applicant was found guilty on all counts.

Between 29 April 2002 and 7 June 2002 there was a second trial, again by judge and jury, in which the applicant stood trial charged with offences of detain for advantage, aggravated indecent assault in company, aggravated act of indecency in company, three counts of aggravated sexual intercourse without consent (in company) and two counts of perverting the course of justice. The jury disagreed in relation to one of the aggravated sexual intercourse counts, but the applicant was found guilty on all the remaining counts.

On 15 August 2002 and 10 October 2002, the judge sentenced the applicant in relation to all offences for which he had been found guilty. He was also sentenced in relation to two counts on an indictment from an unrelated trial. However, the convictions and sentences for these two counts were subsequently quashed by the Court of Criminal Appeal. The Court of Criminal Appeal adjusted the commencement dates of the sentences for the offences that were the subject of the second trial.

OUTCOME:

Sentence/s – Was sentenced to 55 years in gaol with 40 years non-parole in 2002. Sentence was then reduced in 2004 Court of Criminal Appeal to 46 years and then again in 2006 to 28 years and a parole period of 22 years.

COMMENTS:

"People talk about rape as a sexual crime, but in reality it's a crime of domination and contempt," "No human being should be treated in this terrible fashion, no-one."

Judge Michael Finnane

"Without minimising the gravity of the offences committed on 10 August, 2000, they cannot individually or collectively be regarded as in the worst case category of aggravated sexual assault ... ," Justices Timothy Studdert, Virginia Bell and Megan Latham said in their judgment.

LEGAL ISSUES RAISED:

1.    Jury Misconduct - Two jurors who disobeyed the judge’s directions caused the gang rape convictions of Bilal Skaf and his brother Mohammed Skaf to be overturned, and a retrial was ordered. The jurors in question miscarried the trial by conducting their own experiment at the crime scene while deliberations were taking place.

As identity was an issue in the trial, the judges found the experiment was a miscarriage of justice, saying that "in our view there must, regrettably, be a new trial because of this ground”. Because the judges decided that a retrial was appropriate in this situation, it showed not only that the judgement was fair, but was also free from bias to any side. This demonstrated the effective operation of the justice system.

·         Glanville Williams once commented on the significance of “reforms” that flow from sex cases, which have attracted the prurient interest of the press and general public. “These are notoriously the occasions on which the law tends to be bent to give expression to feelings of moral outrage” (Glanville Williams Criminal Law 3rd Edition p.182). When Bilal Skaf’s conviction was set aside by the Court of Criminal Appeal (R v Skaf [2004] NSWCCA) the court called for change to penalise recalcitrant jurors, which was approved. However, no real consideration was given to how effective the penalty provisions might be. The legal system has no idea whether the deterrent effect of penalties will prevent independent research, or merely make it harder to discover when it has occurred.
During the course of this trial, the question was raised: “Do we really need to punish members of the public who take their role as jurors too seriously?” There is a need to discourage independent research outside the evidence at trial. However, was the fact that one high profile trial had to be re-heard, sufficient justification for new criminal sanctions against jurors?

2.    Led to the passing of the Crimes Sexual Assault in Company Act - the public uproar caused by the gang rapes led to the passage of new legislation through the Parliament of New South Wales, dramatically increasing the sentences for gang rapists by creating a new category of crime known as Aggravated Sexual Assault In Company.

3.    Cross-examination of Witnesses By the Accused - During the course of one of the trials, the defendants refused counsel, claiming that all lawyers were against Muslims. Bilal and his brother insisted on a Muslim representative from Legal Aid, failing which, could have led to the contentious prospect of the defendants being able to cross examine the witnesses themselves. The situation was averted by further legislation being put through the New South Wales parliament.

·         Section 294 A Criminal Procedure Act 1986 -commenced 3.9.2003 (was not passed for R v Skaf case directly but was another case with similar issues at the time, therefore enhancing the need for the legislation)
The statutory limitation on the cross-examination of complainants by an unrepresented accused in sexual assault trials was confirmed by the Court of Criminal Appeal in R v MSK & MAK [2004] NSWCCA 308. Special Leave to appeal to the High Court was refused on 4 February 2005.

4.    Original sentence (55 years) was greater than some murder sentences – sentence was reduced as it was not the ‘worst category’. Public members asked why the legal system did not increase the murder sentencing rather than decreasing the rape sentencing.

5.    Victim impact statements – As the first trial was classified as a mistrial due to jury misconduct, a new trial was needed. However, the second trial would be traumatic for the victims, as they would have to face their attacker again. For that reason, the use of a victim impact statement was necessary, but questions were raised as to whether a court transcript would be as effective in trying to create emotions that were felt during the original trial.

·         Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 No 3- commenced 31.7.2004
The amendment to the Crimes (Sentencing Procedure) Act 1999 expands the category of offences in respect of which a Local Court may receive and consider victim impact statements to include some Table 1 offences (Table 1 of Schedule 1 to the Criminal Procedure Act 1986). Table 1 offences are indictable offences, which are dealt with summarily unless prosecutor or accused elects otherwise and which result in actual physical bodily harm to any person, or involve an act of actual or threatened violence or an act of sexual assault.

6.      Sperm Freezing for Serious Offenders - Another member of the gang rape had his sperm frozen at no expense so he could have a family after being released from goal (he was diagnosed with cancer and the treatment would leave him sterile). Mr Iemma was quoted as saying "I find the notion of serious criminal offenders being afforded this type of privilege totally repugnant and it will be stopped immediately." The commercial rate is about $250 a year and would now be set and the rapist be told to pay up.  NSW Premier Morris Iemma also said the Government would ban the collection and storage of the sperm of serious criminals.

7.     Cost Effective – the case was lengthy and the use of legal aid is costly to tax payers. By ordering a retrial more time and money where used, community members saw it as a waste of government funds

 Reasons for Punishing:

1.     When the case arose it was during the 2000 Olympic Games, some members of society felt that the government and legal system enforced a large sentence in order to show that Australia was a safe place to visit.

2.     The original sentence reflected the thoughts and ideas of the community towards gang rapists at the time of the court hearing. Community standards were upheld by Justice Finnane DCJ. At the time of the sentencing, society was strongly against gang rapes as there was considerably more media coverage of gang rapes than in previous times. When Justice Finnane sentenced Bilal Skaf to 55 years imprisonment he was upholding not only the facts of the case but the thoughts and feelings of the community towards the case. Community members see gang rape as a malicious and violent crime which affects the victim for the remainder of their life. As such, sentences should affect the criminal for the remainder of their life.

3.     The law system may have originally wanted to make an example out of the case to deter future criminals by imposing an excessive sentence. Therefore the question of whether the sentence was only excessive because the government wanted an example was raised?

4.     The excessive sentence heighteed tensions between Muslim and non-Muslim Australians and was seen by the Muslim community in Australia as racist. This may have been one of the reasons the sentence was reduced.

Justice Achieved:

1.    It was reported in the media that in July 2003 pictures were obtained from Skaf’s cell depicting pictures of women being sexually assaulted (including his ex-fiance) and that he also had not been showing any remorse for his actions. This raises issue of whether Bilal Skaf’s sentence should have been reduced, how can a man who shows no remorse and obviously has no respect for women be allowed back into the community in less than 25 years? In this aspect justice has not been achieved for women.

2.    Many believe that by reducing the sentence of Bilal Skaf shows that the legal system is weak and feel that although some murder sentences were less, why did the law not increase the murder penalty rather than decrease the gang rape penalty? In reducing the sentence it shows the law is inconsistent and that now, a criminal who should be in jail for life will walk out of jail, knowing that it is possible to escape the law. Again justice has not been achieved for the community as a whole as an obvious criminal will be allowed back into the community without serving what society sees as an appropriate sentence.

3.    The reduction of the sentence has deterred other victims of sexual assault from reporting the incident as the legal process for the R v Skaff case was lengthy and emtionally traumatic. Therefore by reducing the sentence victims may see it as a waste of time and emtions. In this aspect justice has not been achieved for other victims of sexual assault

4.    The fact that there was a jury misconduct and that there was a retrial displays the justice given to the accused. This aspect shows the fairness of an unbiased case or ‘natural justice’.

Quote from Sydney Morning Herald Article - ``How many times do women have to be constantly let down and disappointed by the legal system?'' Women's Health NSW executive officer, Denele Crozier, said.

The "extreme'' reduction in Skaf's sentence would confuse the community about the way rapists are dealt with by the law, she said.
"What message are we giving to other women to encourage them to come forward to find some measure of justice?'' she said.
"It's just shocking and we are outraged.''