K C Fleming QC with P E Smith for the appellant (instructed by Terry Fisher & Co)
L J Clare with M J Copley for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ali v The Queen
Criminal law – Trial – Miscarriage of justice – Competence of counsel – Joint trial of accused – Whether counsel should have applied for a separate trial – Whether application would have succeeded – Whether accused disadvantaged by joint trial – Whether counsel failed to object to evidence of bad character – Whether counsel failed to advance alternative case – Whether accused deprived of a fair chance of acquittal.
Evidence – Criminal trial – Character of accused – Failure to object to evidence of bad character – Whether objection would have succeeded – Whether evidence admissible for other purpose.
Criminal Code (Q), ss 579B, 668E.
GLEESON CJ. The appellant and a co-accused, Amanda Blackwell, were charged with a number of offences following the death, dismemberment, and burial of an infant. The co-accused was the mother, and the appellant was shown by the evidence to be the father. Following a joint trial, before a jury, the appellant was convicted of murder. The co-accused was convicted of manslaughter. The appellant was also convicted of improperly interfering with a corpse, and concealing the birth of a child. The co-accused was also convicted of concealing the birth of a child
When first interviewed, and later before the trial, the co-accused provided the police with a number of inconsistent stories about the birth, death, and burial of the child, including accounts in which she accepted sole responsibility. However, in her evidence at the trial, the co-accused said that the appellant was the father of the child, that he was present at its birth, that he took the baby away after it was born, that she never saw the baby again, and that the appellant told her he had disposed of the body. The trial, and the appeals, were conducted on the basis that the only two people who could have been involved in killing the child and disposing of its body were the appellant and the co-accused. The acts were done by one or other or both of them.
The appellant, when interviewed by police, denied being present at the birth of the child, or having any connection with the birth or death of the child, or with the disposal of the body. He gave no evidence at the trial.
The cogency of the co-accused's testimony against the appellant was diminished by her previous inconsistent stories. Much was made of this,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ali v The Queen [2005] HCA 8
Case
[2005] HCA 8
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Ali, against his convictions for murder, improperly interfering with a corpse, and concealing the birth of an infant. Ali was jointly tried with his co-accused, Amanda Blackwell, who had given birth to the infant. The prosecution's case was that Ali either killed the infant himself or procured Blackwell to do so. The sole ground of appeal argued was that Ali's trial counsel had been flagrantly incompetent, leading to a miscarriage of justice.
The central legal issues before the High Court were whether Ali's trial counsel had been incompetent and, if so, whether this incompetence had deprived him of a fair chance of acquittal. Specifically, the court examined whether counsel should have applied for a separate trial, whether such an application would have succeeded, and whether Ali was disadvantaged by the joint trial. The court also considered whether counsel had failed to object to evidence of bad character and whether an alternative case should have been advanced.
The High Court dismissed the appeal. The court found that the decision not to apply for a separate trial was a strategic one, made in the context of the evidence and the prosecution's case. It was not established that an application for a separate trial would have succeeded, nor that the joint trial inherently disadvantaged the appellant. Furthermore, the court determined that any failure to object to evidence of bad character was not demonstrably prejudicial, particularly as some of the evidence might have been admissible for other purposes. The court concluded that the appellant had not been deprived of a fair chance of acquittal due to the conduct of his counsel.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The only ground of appeal in this case is that, during his trial, which was a joint trial, for murder, of improperly interfering with the corpse of a female infant, and of concealing her birth, of all of which he was found guilty, the appellant's counsel was flagrantly incompetent. The facts The appellant, his wife, their young child and Amanda Blackwell, a young woman of about 20 years of age, (the "co-accused") lived in the same household at Logan Village near Brisbane for about two years. The appellant and the co-accused frequently engaged in clandestine sexual intercourse during this period. The appellant raised and slaughtered goats, poultry and pigeons on the property where they lived. He is a Muslim butcher, experienced in the dismemberment of the corpses of animals and the removal of their sexual organs. He sold the meat from the animals that he butchered as Halal meat to other Muslims. He also worked on occasions as a taxi-driver. On or about 7 or 8 September 1998, the co-accused gave birth to a female infant. Testing of samples of DNA pointed to the appellant as the father. Minutes after her birth the infant died from multiple injuries to her body and head of an extremely violent kind. Her umbilical cord was also torn soon after her birth. Not long after the termination of her short life, the child's body was dismembered by a person experienced in the dismemberment and dissection of bodies. Severed organs including part of the reproductive organs were discovered near the appellant's house. The upper section of her torso was found in a shallow grave on an adjoining property. The dismemberment had been done by a sharp instrument or instruments. The torso was severed just above the umbilicus, and the right leg just above the knee. A forensic pathologist gave evidence at the trial that the removal of the reproductive organs was most unusual. His opinion was that their precise severance implied the purposeful use of a sharp instrument, and a degree of anatomical knowledge. He described the severance as "remarkably neat". The appellant was adept at doing this to female goats to misrepresent their sex in order to achieve higher prices from potential purchasers of the meat. No preparations had been made in the household for the birth and rearing of a baby. The case against the appellant was that he personally killed the baby, or aided or counselled or procured[11] the co-accused, with whom he was jointly tried, to do so. [11]Section 7 of the Criminal Code (Q) relevantly provides:"(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say - ...(d) any person who counsels or procures any other person to commit the offence." During the investigation of the crimes the appellant told many lies to the police officers and others: that he had not known that the co-accused was pregnant; that he had not been in a sexual relationship with her; that he possessed no particular ability to remove the sexual organs of animals; and that he had not slaughtered goats. He also lied about his presence on 8 September 1998 on his neighbour's property where the torso of the child had been buried in a shallow grave.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
HUGH J
HAYNE J
CALLINAN AND HEYDON JJ
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Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HUGH J,
HAYNE J,
CALLINAN AND HEYDON JJ