Introduction

Under the rule of law, trials must be fair and timely; every person accused of a crime is entitled to the presumption of innocence, and the law must be applied equally to all (no matter the crime) because no one is above the law and no one is outside its protection.

This resource examines the Skaf cases, which are widely regarded as involving the most serious criminal conduct. It shows how the rule of law continues to operate in such matters, guiding the investigative process, the conduct of the trial, and the sentencing of offenders.

The resource focuses on sentencing and proportionality, parole, and the effect of jury misconduct on procedural fairness.

Facts of the Case

Bilal and Mohammed Skaf were involved in a series of sexual offences committed in Sydney during August 2000. At the time, Bilal was 18 years old and Mohammed was 17. The offences occurred across three separate dates and locations, resulting in multiple trials, appeals, and resentencing over several years.

Bilal faced charges arising from three separate incidents:

• 10 August 2000: Northcote Park, Greenacre

• 12 August 2000: Gosling Park, Greenacre

• 30 August 2000: Bankstown/Chullora

Mohammed faced charges arising from two incidents:

• 12 August 2000 – Gosling Park, Greenacre

• 30 August 2000 – Bankstown/Chullora

Procedural History

Bilal Skaf, together with several co‑offenders, faced three major trials in the District Court of New South Wales before Judge Michael Finnane. Mohammed Skaf was a co‑accused in two of those trials.

The Three Trials

• First trial: Commenced 13 December 2001, concerning offences committed on 10 August 2000. The jury returned guilty verdicts on 20 December 2001. Judge Finnane deferred sentencing until all trials were completed.

• Second trial: Concerned offences committed on 12 August 2000. The jury returned guilty verdicts on 11 July 2002.

• Third trial: Commenced 29 April 2002, concerning offences committed on 30 August 2000. The jury returned guilty verdicts on 7 June 2002.

Initial Sentences

In August and October 2002, Judge Finnane sentenced the brothers for all convictions across the trials:

• Bilal Skaf: 55 years imprisonment, with a 40‑year non‑parole period.

• Mohammed Skaf: 32 years imprisonment, with a 20‑year non‑parole period.

At the time, Bilal’s sentence was the longest non‑life term imposed in Australia.

Appeals and Retrial

The Skaf brothers lodged six appeals.

2004 Appeals:

• Their appeals against the 10 August and 30 August convictions were dismissed.

• Their appeal relating to the 12 August conviction was successful. The NSW Court of Criminal Appeal found juror misconduct. The convictions were quashed and a retrial was ordered. The DPP initially declined to proceed because the victim did not wish to give evidence again. As a result, the brothers’ sentences were reduced: Bilal by nine years, Mohammed by eight years.

2005 sentence appeal:

• The brothers successfully appealed their sentences on the basis that they were manifestly excessive.

  • Bilal was resentenced to 28 years.

  • Mohammed was resentenced to 19 years.

Law reform and retrial (2006):

• Subsequent legislative changes permitted evidence from the original trial to be admitted in a retrial. The DPP proceeded, and a retrial commenced on 3 April 2006 in the Supreme Court before Acting Justice Matthews. The jury returned guilty verdicts on 18 April 2006.

  • Bilal was resentenced to 38 years.

  • Mohammed was resentenced to 26 years.

2008 appeal:

• Their attempt to overturn the 2006 retrial conviction for the 12 August offence was unsuccessful. However, they succeeded in appealing their sentences.

Aggregate Sentences

Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), Judge Finnane imposed single aggregate sentences on each offender after the conclusion of the trials.

Although the brothers were convicted of different combinations of offences across the three trials, each ultimately received one aggregate (total) sentence, reflecting the totality of their convictions.

When the 12 August convictions were quashed, the aggregate sentences no longer aligned with the remaining valid convictions. The sentences were recalculated, reducing Bilal’s term by nine years and Mohammed’s by eight years.

Following the 2006 retrial and the 2008 sentence appeal, the aggregate sentences had to be revised again.

Current Sentences

• Bilal Skaf is now serving 31 years, with a 28‑year non‑parole period.

• Mohammed Skaf’s sentence was reduced to 23 years, with an 18‑year non‑parole period. He was released on parole in October 2021.

In June 2026, Mohammed Skaf was arrested and charged with drug‑related offences and offences involving the proceeds of crime. He was refused police bail and did not apply for bail in the Local Court.

Legal Issues in the Skaf Trials

Jury Misconduct

At the beginning of every criminal trial, the judge provides directions to the jury. These directions explain the relevant law and outline how jurors must approach the evidence so they can reach a verdict based solely on what is presented in court. In the Skaf trials, Judge Finnane instructed the jury that they were “not to go and do your own research.”

In the second trial, a central issue was whether the complainant had correctly identified Bilal Skaf as the offender. Given the incident occurred at night, much of the evidence concerned visibility in the park, including the adequacy of the lighting.

The jury returned guilty verdicts at the conclusion of the second trial. After the verdict, however, a solicitor unconnected with the case informed the court that the jury foreman and another juror had visited the park the night before the verdict. They inspected the lighting and conducted their own observations to assess whether a person could be recognised at night from particular distances.

The solicitor believed that the jurors had relied on information obtained during this visit, which had not been presented as evidence.

The foreman later admitted that he went to the park to “clarify something for my own mind. I felt I had a duty to the court to be right. I wanted to be sure my decision was not in any doubt before the verdict. I did not tell anyone else in the jury about this visit. The only juror who knew about the visit was the one who was with me.”

The Skaf brothers therefore lodged an appeal to overturn the conviction on the basis that the trial miscarried by reason of juror misconduct (REGINA v Bilal SKAF, REGINA v Mohammed SKAF [2004] NSWCCA 37).

Counsel for Mohammed Skaf argued that the jurors’ observations about lighting and weather conditions amounted to obtaining information that was not admissible evidence. The NSW Court of Criminal Appeal agreed, finding that the “park experiment” could not form part of the jury’s deliberations. The Court stated:

The Court emphasised that it needed to consider the potential prejudicial impact of the information on the deliberations of at least the two jurors involved. The information was not evidence presented at trial, was not subject to judicial directions, and could not be tested by the parties. The circumstances amounted to procedural unfairness, as the accused had no opportunity to challenge or contextualise the material.

The Application of the Rule of Law

Two key rule‑of‑law principles are relevant here: equality before the law and open justice. The rules of evidence ensure that all accused persons are subject to the same restrictions on what information can be considered. Both the prosecution and defence must have a fair opportunity to address all material relied upon by the jury. Open justice requires that the defendant (and the public) know what evidence is being considered. The prosecution must prove guilt beyond reasonable doubt using only admissible evidence.

When jurors rely on external information, these principles are compromised. In this case, the jurors’ independent observations could not be scrutinised through cross‑examination. Questions such as whether the lighting conditions were the same as at the time of the offence, or whether the park had changed since 2000, could not be explored.

Given the jurors relied on information obtained outside the trial, the Skaf brothers were not afforded a fair trial, and the principles of open justice and equality before the law were infringed. The NSW Court of Criminal Appeal therefore ordered a retrial.

Law Reform

The jury misconduct identified in the Skaf proceedings contributed to legislative reform in New South Wales. In 2004, the Jury Amendment Act 2004 (NSW) amended the Jury Act 1977 to expressly prohibit jurors from making inquiries for the purpose of obtaining information about the accused or any issue in the trial, except when performing their proper functions as jurors. The amendments make it an offence for jurors to conduct independent investigations, including searching the internet or carrying out experiments to test evidence. The offence carries a maximum penalty of two years imprisonment.

The case also influenced the way jury directions are delivered. Judges now provide explicit instructions that jurors must not undertake outside investigations or experiments, and that doing so is unlawful. Written directions given at the start of a criminal trial now include guidance on these matters. A sample of these directions can be viewed here.

The laws of evidence were also reformed in response to the mistrial. Although the court ordered a retrial to ensure justice was done, one of the victims declined to give evidence again due to the significant emotional trauma it caused her. Without her evidence, the prosecution could not proceed. To address this problem, the government introduced amendments to the Evidence Act allowing evidence given in an earlier trial to be admitted in a subsequent retrial. This reform meant that the transcript of the victim’s original evidence could be relied upon, ensuring the retrial could continue without requiring her to re‑testify.

Sentencing

The Principle of Totality

The principle of totality helps guide courts when sentencing an offender for multiple offences. It means that the overall sentence must reflect the totality of the criminal behaviour and be “just and appropriate” in light of the offender’s combined wrongdoing.

Following the successful conviction appeal in 2004, Bilal’s original sentence was reduced by nine years and Mohammed's by eight years, pending the retrial.

In 2005, Bilal and Mohammed successfully appealed their sentences. The Court accepted that the offences were extremely serious, however, it held that they could not be placed in the “worst category” of offending for that crime. In other words, the sentences infringed the principle of totality. Bilal’s sentence was therefore further reduced to 28 years imprisonment and Mohammed’s was reduced to 19 years imprisonment.

Following the 2006 retrial, Acting Justice Matthews resentenced Bilal to 38 years and Mohammed to 26 years.

The brothers appealed these new sentences. Their appeal was heard by McClellan CJ at CL, Hidden J and Howie J. Their lawyers argued that the sentences should be reduced due to the intense publicity surrounding the trials, the timing of the proceedings, and the heightened focus on radical elements of the Muslim community following the September 11 attacks. Although the appeal against conviction was rejected, leave to appeal against sentence was granted.

The Court considered Bilal’s status as a high‑risk inmate held in protective custody, which limited his access to education, work, and exercise. Ultimately, the court found that Matthews AJ had not given adequate weight to the principle of totality. Her Honour’s sentences were quashed. Bilal’s sentence now expires on 11 February 2037, with parole eligibility on 11 February 2031, a reduction of two years from both the total sentence and the non‑parole period. Mohammed’s minimum sentence was cut by 18 months.

How is the sentence determined

When determining an appropriate sentence, a judge must apply the requirements of the Crimes (Sentencing Procedure) Act 1999 (NSW). The process involves weighing several categories of factors:

• Objective seriousness of the offence

• Aggravating factors, such as:

  • offending in company

  • violence

  • planned or organised criminal activity

  • substantial emotional harm to victims

• Mitigating factors, such as:

  • remorse

  • low likelihood of reoffending

• Subjective factors, which relate to the offender personally

  • For Mohammed Skaf, this included his youth at the time of offending

• Guilty plea

  • An early guilty plea can reduce a sentence by up to 25%

  • This recognises the benefit to victims who are spared the stress and trauma of giving evidence

  • Both Mohammed and Bilal Skaf pleaded not guilty.

Sentencing is inherently difficult because judges must balance competing considerations. As Premier Morris Iemma observed when the Court reduced the brothers’ sentences in 2005, “It’s always a balance… sometimes they don’t get that balance right, other times they do.” Judges must assess uncertain matters such as the likelihood of reoffending and prospects of rehabilitation, both of which require predicting future behaviour.

After considering all relevant factors, a judge applies instinctive synthesis, a process of weighing everything together to arrive at a single, appropriate sentence. An offender may appeal if the sentence is manifestly excessive or if the judge has applied the law incorrectly.

Australia’s sentencing system is grounded in the rule of law and requires that sentences be just and appropriate in light of the totality of the offending. A just sentence does not mean universal agreement; it means a sentence imposed according to law and the purposes of sentencing.

The Skaf cases illustrate several key principles of sentencing:

• Parity: Similar offences committed in similar circumstances should attract similar sentences. This promotes consistency, predictability, and public understanding of sentencing outcomes.

• Proportionality: The punishment must be proportionate to the gravity of the offence. Bilal Skaf’s longer sentence reflected the greater seriousness and higher objective gravity of his conduct compared with Mohammed’s.

Post‑Sentencing Considerations: Parole

Mohammed Skaf’s release on parole in October 2021 reignited public debate about the parole system. He first became eligible for parole in 2018 but was refused three times. In both 2017 and 2019, the State Parole Authority (SPA) noted concerns that he appeared to blame the victim, lacked empathy, and refused to accept responsibility. This absence of remorse contributed to his assessment as a medium‑to‑high risk of reoffending within five years.

In 2021, the SPA granted parole for the final two years of his sentence. SPA Chairman David Frearson SC explained that supervised release was “the safest pathway for his reintegration into society,” emphasising that parole was the only opportunity to manage his transition back into the community within the limited time remaining on his sentence.

The SPA cannot alter or extend a court‑imposed sentence. As an executive body, it operates separately from the judiciary and legislature. Once Skaf’s 23‑year sentence expired, the SPA had no power to continue detaining him. Its role is limited to determining whether an offender can be safely released on parole and, if so, under what conditions.

Before granting parole, the SPA undertakes a rigorous assessment process focused on community safety. It considers expert advice, the offender’s behaviour and attitude in custody, their completion of rehabilitation programs, and statutory requirements. The SPA must also consider recommendations from the Serious Offenders Review Council (SORC).

A “serious offender” includes:

• (a) someone serving a sentence for murder or a life sentence

• (b) someone with a non‑parole period exceeding 12 years

• (c) someone declared a serious offender by the sentencing court

SORC recommended that Mohammed Skaf be released on parole. He was released subject to strict conditions, including:

• 24‑hour electronic monitoring with daily reporting

• Mandatory psychological intervention

• No contact with victims

• No contact with co‑offenders

• Exclusion zones covering the Liverpool, Fairfield, Blacktown and Parramatta LGAs

Does the parole of Skaf achieve justice?

Mohammed Skaf’s release prompted significant public backlash. However, assessing whether his parole achieves justice requires returning to the principles underpinning the criminal justice system and the rule of law.

The offences were unquestionably horrific. Yet even in cases involving “the worst of the worst,” the integrity of criminal procedure must be upheld. As legal scholars note, the most heinous cases are often those in which fair and just procedure comes under pressure. The rule of law requires that processes remain balanced, consistent, and lawful, regardless of public sentiment.

Margaret Cunneen SC, the former Deputy Crown Prosecutor in the Skaf trials, has stated that parole in this case does achieve justice: “He is now 38… he has arguably learnt his lesson” and “done his time.” The SPA echoed this reasoning, noting that Skaf could not be kept in prison beyond his sentence and that supervised release was essential for community safety. Releasing him at the very end of his sentence without monitoring would pose a greater risk.

Parole exists to balance the rights of the individual with the safety of the community. It provides structure, supervision, and accountability during reintegration. In doing so, it upholds the rule of law and ensures that even in the most confronting cases, justice is administered according to lawful process, not public outrage.

Skaf’s 2026 arrest demonstrates that parole did not place him beyond accountability; justice is maintained precisely because new alleged crimes trigger new legal consequences, reinforcing the system’s commitment to equal and consistent application of the law.