Alikhani v The Queen
[2001] WASCA 55
•7 MARCH 2001
ALIKHANI -v- THE QUEEN [2001] WASCA 55
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 55 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:12/1998 | 9 NOVEMBER 2000 | |
| Coram: | KENNEDY J IPP J OWEN J | 7/03/01 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Applications for leave to appeal against conviction and sentence dismissed | ||
| PDF Version |
| Parties: | MOJTABI ALIKHANI THE QUEEN |
Catchwords: | Criminal law and procedure Wilful murder Whether verdict unsafe and unsatisfactory Claim of jury bias on ground of religion Criminal law and procedure Sentencing Wilful murder Whether strict security life imprisonment justified |
Legislation: | Nil |
Case References: | R v Ford [1989] QB 868 Garrett v The Queen [1999] WASCA 169 Salehi v The Queen [1999] WASCA 279 Williams v The Queen, unreported; CCA SCt of WA; Library No 960674; 26 November 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ALIKHANI -v- THE QUEEN [2001] WASCA 55 CORAM : KENNEDY J
- IPP J
OWEN J
- CCA 13 of 1998
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Wilful murder - Whether verdict unsafe and unsatisfactory - Claim of jury bias on ground of religion
Criminal law and procedure - Sentencing - Wilful murder - Whether strict security life imprisonment justified
Legislation:
Nil
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Result:
Applications for leave to appeal against conviction and sentence dismissed
Representation:
Counsel:
Applicant : In person
Respondent : Mr S P Pallaras QC
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Ford [1989] QB 868
Case(s) also cited:
Garrett v The Queen [1999] WASCA 169
Salehi v The Queen [1999] WASCA 279
Williams v The Queen, unreported; CCA SCt of WA; Library No 960674; 26 November 1996
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1 KENNEDY J : The applicant was charged in the Supreme Court with aggravated burglary, contrary to s 401 of the Criminal Code, and with the wilful murder of Tatiana Semenovna Reynolds, contrary to s 278 of the Code. On 29 January 1998, the applicant was convicted by a jury on both counts. He was sentenced to 5 years' imprisonment for the offence of aggravated burglary and to strict security life imprisonment for the offence of wilful murder, with respect to which the learned trial Judge set a minimum period of 20 years which the applicant must serve before becoming eligible for parole.
2 The applicant now seeks leave to appeal against his conviction for wilful murder and against his sentence for that offence.
3 The proposed grounds of appeal in relation to the applicant's conviction for wilful murder are to be extracted from a number of documents. They are:
(i) The conviction was contrary to the evidence and to the weight of the evidence.
(ii) At the time of his trial he was on strong medication, which caused him to answer questions wrongly.
(iii) He was not allowed to use an interpreter in the court. English is not his first language and he was not able fully to understand the questions that were being put to him.
(iv) During the trial, a number of police officers, Mrs Smith, Mr Scott and Mr Hancock, did not seem to have a strong understanding of the truth.
(v) The trial Judge misled the jury during his summing up of the case.
(vi) The jury were swayed in their decision due to a number of them having different religious beliefs from his own. He is a Muslim and the hatred towards his people, he claimed, is widely known.
(vii) The jury's decision was unreasonable.
4 The evidence was that the deceased met Martin Reynolds while he was working in Kazakhstan. They became engaged, and the deceased came to Australia accompanied by her young daughter from a previous marriage. The deceased and Mr Reynolds later married.
5 The applicant met the deceased early in 1996 when each of them was attending an English language course at the Balga TAFE. Kamal Ali Salehi, who was jointly charged with the applicant and convicted of the offences of aggravated burglary and wilful murder, was a
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- close friend of the applicant and he was also a participant in the same language course. The applicant and Salehi had both come to Australia from Iran in 1995.
6 The applicant and the deceased commenced a sexual relationship very soon after they met. It lasted for some time before the deceased brought it to an end. The applicant was unable to accept the severing of their relationship and from about the middle of 1996 until August 1996, when Mr Reynolds changed his home telephone to a silent line, he harassed the Reynolds family by making numerous nuisance calls both to the deceased and to Mr Reynolds. He tried to confront Mr Reynolds on one occasion as he was waiting to pick up his wife from an aerobics class. On another occasion, he sent an anonymous letter to Mr Reynolds, enclosing a photograph of himself and the deceased sitting on a park bench.
7 In order to avoid his continuing attentions, the deceased transferred to an English language course in Perth. The applicant later transferred to that class. On or about 17 December 1996, the deceased applied for a restraining order against the applicant. Ten days later, the laundry of the Reynolds' townhouse was set on fire and the passports of the deceased and Mr Reynolds were found to be missing from their house. In March 1997, the passports, together with a key to the Reynolds' principal bedroom, were found buried in the grounds of the block of flats where the applicant was living. The Crown did not suggest that the applicant was responsible for the fire.
8 On 29 December 1996, the applicant was stopped by a police officer while he was driving his car on the road in which the Reynolds' townhouse was situated. Salehi was a passenger in the car. Mr Reynolds had seen the applicant driving past his house on a number of occasions on that day and he had summoned the police. The applicant was found to have only a learner's permit and the police officer, knowing of the restraining order and also knowing that it had not been served, took the applicant back to the police station where service of the order was effected on him. The order was explained to him and he appeared to understand the position, but he continued thereafter to make nuisance calls to Mr Reynolds.
9 On 31 December 1996, another police officer saw the applicant driving his car into the driveway of the Reynolds' house. The officer accosted the applicant and seized from his car a large kitchen knife, which was approximately 30 centimetres in length, and a pair of gloves. He then
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- arrested the applicant and took him to the police station, where he was charged with breaching the restraining order and with possessing an offensive weapon.
10 The telephone calls from the applicant ceased for a while, but they later resumed. In about mid January, in the course of one of numerous telephone calls, the applicant told Mr Reynolds: "I am a dangerous man. You watch out for Tania and Sasha." Tania was the abbreviated first name of the deceased and Sasha was the name adopted by her daughter.
11 On 26 January 1997, Mr Reynolds observed that the applicant was following his car. He contacted the police and, as a result, the applicant was arrested in the vicinity of the Reynolds' house and charged with a further breach of the restraining order.
12 In February 1997, Mr Reynolds took out restraining orders against the applicant on behalf of himself and his step-daughter. These orders were served on the applicant on 19 February 1997 at his flat. The terms of the restraining orders were read out to him and the police officer serving the orders was satisfied that he understood them. At some stage, the deceased withdrew her restraining order against the applicant, but she applied for, and was granted, another order in April 1997. This order was never served.
13 The deceased was killed in her house on the morning of 2 May 1997. Later that morning, at about 11.30 am, the applicant came into the City Police Station. He told Constable D A Mulhall, who was on duty: "I've killed someone". He was cautioned, but he then went on to say: "I want to tell, I have murdered my girlfriend. Arrest me." The applicant was then interviewed by Sergeant T E Browne and Constable Mulhall. He told them he had killed Tatiana Reynolds, his girlfriend, at her house. He added: "I stabbed her with a knife". Asked whether he was sure she was dead, he replied that he was sure. Constable Mulhall noted that the applicant "had a very severe looking full bandage on his thumb". Asked what had happened to his thumb, he replied: "I cut it while stabbing Tatiana". According to Constable Mulhall, the applicant appeared to be understanding what was being said to him in English, and there was no problem in communicating with him.
14 A videotaped interview of the applicant was then conducted by Detective G J Savage and Detective V C Smith. An interpreter was present and was apparently used throughout the interview. During the course of this interview, the applicant made a number of significant
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- admissions regarding the death of the deceased. He confirmed that he had told the police officer at the City Police Station that he had killed his girlfriend, Tatiana Reynolds, in her house. He claimed to have had a dream on the previous night about "exactly the same thing which I have done today". He went on to describe the dream.
15 The applicant then told the detectives that, earlier that morning, he had been driving around the city until 5.00 am, at which time he went to a friend's house. He declined to identify this friend, but it became abundantly clear that it was his co-accused, Salehi. The applicant said that, on the previous night, they had gone to the Reynolds' house to find out whether Mr Reynolds was at home. He had been at home and, as it was not easy to enter the house, they planned to seek him out at his office. The applicant continued: "We were not attempting to kill him but just stab him and just take away the keys. But then I said: 'No, I'm not doing this. I have no problem with her husband so I don't do anything that harm the husband.' " It is apparent that the applicant's plan was to get into the house at a time when only the deceased was at home.
16 The applicant went on to say that he and Salehi had driven by Mr Reynolds' office at about 7.00 am on 2 May. At 6.00 am they had been near the Reynolds' house and had seen Mr Reynolds' car parked outside the house. Although the applicant had originally planned to obtain the keys to the house from Mr Reynolds, he now changed his mind.
17 The applicant said that his friend (Salehi) had with him a small knife, which was not as big as the one that he had. His was a kitchen knife. Asked to describe that knife, he replied that it was a knife for killing people. He said he had bought it some two to three weeks previously for another purpose, but that he had taken it with him because he wanted to kill the deceased. He had it in his car for about a week.
18 The applicant told the police that he and Salehi had talked to each other and had agreed: "Once we enter into this house, if nobody is in the house, because we are entering without permission, so we will not use - - if nobody is in the house, we will not use the knife. But if somebody is in the house, because we have entered into this house without permission, we will use our knives." Asked what he meant by using their knives, he replied: "To kill Tatiana".
19 Salehi, the applicant said, was dropped off by him to see whether anyone was in the house. He reported: "Everything is fine, but we cannot enter from the front door because everywhere is locked. We have to go
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- from the back door." The applicant parked away from the house and walked back to it, taking his knife, a wheelbrace and a chain with him. He claimed that Salehi had agreed to help him, but not to kill the deceased.
20 The applicant's description of how they entered the house was somewhat confused. It appears that a door from the street into the back garden was unlocked and that they had entered the garden through that door. The applicant broke the lock of the rear door of the house with the wheelbrace. He said that he disconnected the telephone, although it is not entirely clear that what he cut was in fact the telephone line. He said he disconnected the telephone so that, if the deceased had been home, she would not have been able to call the police. He entered the house and went upstairs. He observed the deceased looking out of Mr Reynolds' office. The deceased screamed and wanted to close the door of the office, but the applicant said that he grabbed her and told her to be quiet. He claimed that she said to him: "Either you have to go to prison or you have to die. Because I saw you yesterday and I told you, you have to kill Martin [her husband]." He said: "I became very nervous and I was - - I had put my hand over her mouth because she was - - she was screaming, so I said 'You have to be quiet and don't shout'. And as soon as I would take away my hand then she would start to scream and shout, and she had bitten my hand around here too. Then my - - my friend came and just took her leg, but he didn't use his knife or stab or do anything." He continued: "I only stab her once and I told my friend, 'Go away' ". He thought Salehi held the deceased for what might have been 10 seconds, but it might have been less. He then said it was only for a second.
21 Asked how his friend had held the deceased, he replied: "Because I threw Tatiana on the floor and then she was kicking and using her legs. She was - - she was protecting herself - not let me stab her - and so my friend just hold the leg and I stabbed her." He then said that Salehi was holding both her feet, he thought, on the ankles.
22 The applicant claimed he could not remember how many times he stabbed the deceased after the first occasion, but said it might have been 8 to 10 times. When he stopped stabbing her, he said, she was dead because she was not breathing. He left the knife in the doona with which he covered the body of the deceased. He took some of Mr Reynolds' clothes from a cupboard and changed into them, because his own clothes were blood-stained. He went downstairs and found that Salehi had left the house. He then went back to his car and drove away.
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23 The applicant told the police he wanted to kill the deceased because she would make lots of noises and he could not control her. Later in the interview, the applicant said that, at the beginning, he did not want to kill the deceased but just wanted to find out "what she wants of me and leave me, why - - why she's after me, what she's want of me". Asked whether, when he went to the deceased's house, it was his intention to kill the deceased, he replied: "That was not my intention. No. I only went into her house because I was very angry and really nervous and anxious because there was no way I could talk to her." It was then put to him that he had said earlier in the interview that he was going to kill her. He responded: "My intention was not 100 per cent to kill her but I can say inside me that it was my intention. I can say 50 per cent that was my intention to kill her." Asked how long he had been thinking about doing this to the deceased, he said: "From last week". He then agreed that he had stabbed the deceased to make her die. Later, asked again about his reason for killing her, he replied: "The reason why - - I was thinking about this about a week and the reason I wanted to do this - - it was because from the beginning, when I knew her, after two weeks, then being with her for two months or three months, she had asked me to kill her husband. I mean, I had a tape from her because she was begging me to do this and - - and nagging and wanted me to kill her husband - - -.. But then she knew I had the tape so she asked me to go and burn the tape." He said he would burn the tape, but only if she did not ask him again to kill her husband. He also spoke of her threatening to report to the police that he had stolen $100,000 from her house, as well as jewellery and cameras and other things.
24 The forensic pathologist, Dr KA Margolius, who examined the body of the deceased, found that the cause of her death was multiple penetrating injuries. A number of the injuries were sufficient, by themselves, to cause death. Her evidence was that several of the injuries could only have been caused while the deceased's legs were spread wide apart. The wounds to her thighs were consistent with one person restraining her legs while another person inflicted the stabbing. Bruises on the deceased's legs were typical of a person having a firm grip on her legs, holding them down, or at least applying some sort of restraint on her legs. Further injuries on the deceased's hands and fingers were consistent with her having attempted to protect herself from a knife attack. The injuries to her chest and neck, in the opinion of Dr Margolius, would have occurred last. The injuries to her arms, legs and genital area would have occurred earlier, since there were signs that the deceased had tried to protect herself. There were 68 separate sites of injury, most of which were wounds. It is not
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- necessary to detail further the horrific injuries sustained by the deceased. They evidenced a frenzied and sustained attack on a woman who was quite incapable of defending herself.
25 The applicant gave evidence in his own defence. He claimed that the deceased had told him that she hated her husband and wanted him dead, and she had later shown him some American money and a picture of a male person who, she said, was prepared to kill her husband for money. He replied that he had told her that he knew some people from the Mafia who could do the job, but, he maintained, he had only said this to get the money away from her. He said he had wanted to prevent the killing of Mr Reynolds. He was later given $US15,000 by the deceased, which he had kept for his own purposes. He said the deceased realised that he was not going to give the money back to her and he told her that, if she wanted the money, she had better go to the police, because he believed that if she went to the police, and brought the matter up with them, he would not be blamed if "something happened". He then went on to describe how he used the money for his own benefit, including the purchasing of a car, but later he claimed that he had repaid the deceased $US5,000 and had also bought two wigs for her.
26 In relation to the dropping of the initial restraining order, the applicant claimed that he had gone to court with the deceased to have the order dropped, and that thereafter they began seeing each other every day and on some nights. He claimed they were very happy together, and that subsequently she had told him that, if her husband were to die, they would be rich. He said he had replied that he did not want to kill her husband.
27 The applicant also said that the deceased had wanted him to shave her hair with a razor, which he had done. She seemed happy immediately afterwards, but on the following day she had telephoned him and told him: "You are rubbish man. I hate you. I don't want to see you again." She had then hung up. The next occasion on which he had seen her, he said, was the day before she was killed, which was about four weeks after the shaving incident. They had spoken for about half an hour. She told him that she gave him just one week in which to kill her husband or she would kill him. He said that, on the same day, he had driven around with Salehi looking for the deceased so that he could talk to her.
28 The applicant claimed that the deceased had at one time sent two men around to his flat to kill him, having given them the key to his flat. One of the men was a policeman named Scott, but he maintained that he
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- only saw the bottom half of these men because he was hiding under his bed at the time.
29 The applicant's evidence was that he had a plan to confront the deceased and to tell her that he did not want to kill her husband. He told Salehi that he loved the deceased, but that she was making problems for him, and that she now wanted to kill him because he did not want to kill her husband. He claimed that Salehi said to him, "Go in, show him, show her". He said that all he wanted to do was to stop the deceased from bothering him. He also maintained that he had wanted to break into the Reynolds' house but that he had later changed his mind. He made this known to Salehi, but Salehi did not listen to him. Salehi wanted to break into the house, and the applicant then changed his mind once again and decided to break into the house. They both entered the back garden of the house. The applicant saw what he thought was a power line and he had turned it off, thinking it was the security system. He then cut off the telephone because he did not want the deceased to ring the police. They both entered the house through the back door of the premises. The applicant carried a knife with him to defend himself because, he said, the deceased had threatened to send some people to kill him. Asked why he had broken into the house and not simply knocked on the door, he replied, "I don't know. I want to find Tatiana without problem." Asked why he had forced the door and gone in, he said: "I want to find Tatiana. I want … I want to say to her, and I say, 'Enough problem. What do you want from me? Choose between me or Mr Martin [Reynolds]'." When they went inside the house, Salehi stayed downstairs while the applicant went upstairs. The applicant found the deceased in her husband's study. She screamed, so he pushed her down onto the floor.
30 The applicant said he put his left hand on the mouth of the deceased three times in order to stop her from screaming. He said he wanted to speak to her and to explain the situation. He spoke to her for about 5 to 10 minutes. She listened for a while and then said, "You must die or you go to gaol for always". He said he got angry, pulled out the knife, and stabbed the deceased once. He did not remember where he had stabbed her. He said he then told her: "That's enough. You leave me alone." The deceased replied, "No, you must die or go to gaol". Apart from that one occasion on which he remembered stabbing her, the applicant could not recall anything else until he realised that she was dead. There was blood everywhere, and he had blood on his clothes. He had cut his own finger and he wrapped it in band-aids to stop the bleeding. He also admitted that he had changed his clothes for some of Mr Reynolds' clothes.
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31 In his evidence, at no time, the applicant said, did Salehi go up the stairs or hold down the deceased's legs. He denied ever having taken possession of the deceased's and Mr Reynolds' passports and he denied that he had bought his knife in order to kill the deceased. He claimed he had bought the knife to do "farming work", such as picking apples and cutting wheat. He claimed that the reason why he had said what he did in the videotaped interview about wanting to kill the deceased was so that the police would execute him. He maintained he had never intended to kill the deceased.
32 The applicant also explained why he had said in the interview that Salehi was holding down the deceased's legs as he was stabbing her. The reason, he said, was that he was angry with Salehi for allowing him to enter the Reynolds' house and for his not going along with him to the police and both turning themselves in. He denied telephoning Mr Reynolds so as to annoy him, and he claimed he did not go to the police after the deceased asked him to kill Mr Reynolds because he did not want the deceased to get into trouble. He denied following Mr Reynolds in his car and he denied changing his car, as had been suggested, in order to avoid its being recognised by the police.
33 Having considered all the evidence, I can find no basis whatever for the assertions that the applicant's conviction was contrary to the evidence and the weight of the evidence, and that the jury's decision was unreasonable. The Crown case was overwhelmingly strong and the jury were fully entitled to return a verdict of guilty of wilful murder on the basis of the various admissions made by the applicant to the police. The evidence of Dr Margolius, which the jury no doubt accepted, plainly supported an inference that the killer intended to kill the deceased.
34 As to the contention that, at the time of the trial, the applicant was on strong medication, while it is noted that the applicant, at the commencement of his evidence, did say that he was sick and was taking "medication" and could not "do" Ramadan, he has not pointed to any part of the evidence which suggests that he might have been placed at some disadvantage. Nor have I been able to discover in his evidence any indication of some disadvantage which the applicant was experiencing. This ground of appeal cannot, in my opinion, succeed.
35 The next ground concerns the use of an interpreter in the court. The applicant had the benefit of an interpreter at all times during his trial. The first interpreter, Ms Poune Gregory, interpreted up until the adjournment of the hearing on 23 January 1998 and thereafter, for the remainder of the
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- trial, Mr S Reshteen interpreted for the applicant. Each of them was duly affirmed, and each was given careful instructions by the trial Judge as to how they should undertake the task.
36 There was an exchange between the learned trial Judge and the applicant's counsel early in his examination-in-chief, when his Honour indicated that it was appropriate that there be an interpreter present, but that to the extent that the applicant could understand any question, and answer it, without the benefit of the interpreter, he should do so. As his Honour said, the applicant appeared to have commenced his evidence without any problems, but that thereafter the court was "getting wholehearted interpreting". His counsel suggested that the applicant was very cautious and that he had given one answer which was quite wrong and which, when it was clarified, was a different answer. His Honour responded that he understood that this might happen and said that on such occasions the applicant could use the interpreter, but if he was quite confident he understood the question and could answer it, he should do so in English. The applicant then indicated to his counsel that he understood this, but almost immediately he lapsed into his native tongue. He was asked to try to answer the question in English, but he claimed that it was really difficult for him because he could not use "some word for explain". In these circumstances, at the request of his counsel, he was permitted to use an interpreter.
37 Subsequently, in the course of his cross-examination, the applicant's counsel expressed concern at the fact that the applicant was rarely using the interpreter. She indicated that there was some occasions which she had picked up when his answer to the question was wrong, and although she had not spoken to him about the matter, she was worried that he felt constrained about using an interpreter. His Honour then requested the interpreter to translate to the applicant the following:
"Mr Alikhani, if you understand the question, it is desirable that you - sorry, if you understand the question and feel that you can answer it in English, it is desirable that you attempt to answer it in English. If, as you have indicated from time to time, there is a word which you find difficult to understand, you are at liberty to ask the interpreter to explain that word to you. It is preferable, however, that you answer if you can in English. If you feel you cannot properly answer the question in English, then you may answer through the interpreter."
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- The applicant responded, "All right". Asked whether he understood it, he said, "Yes". His Honour then asked whether this caused any problems for the defence. Counsel replied in the negative.
38 The applicant was represented at his trial by experienced and very competent counsel who could be relied upon to intervene further had there been any indication of the applicant's inability to answer questions properly. There was no such indication.
39 As in the case of the previous ground of appeal, the applicant did not point to any passage in the transcript which indicated that he was disadvantaged in any respect. This ground of appeal cannot be sustained.
40 The next of the proposed grounds is that, during the trial, a number of the police officers did not seem to have a strong understanding of the truth. The applicant named three police officers, Detective Senior Constable Smith, Constable Hancock and Constable Scott. Detective Smith's evidence was certainly not central to the case. She gave evidence concerning discussions with the applicant regarding two gold chains belonging to the deceased, which the applicant had handed in to the police in December 1996. She had also spoken to him about a restraining order. Subsequently, she was present during the video interview with the applicant on 2 May 1997. Her evidence was not challenged in any material respect by counsel for the applicant.
41 Constable Hancock gave evidence regarding the incident on 29 December 1996, to which reference has already been made. He was the officer who served the restraining order on the applicant on that day. He also interviewed the applicant on 31 December 1996 regarding his breach of the original restraining order. His evidence was that when he suggested to the applicant that he obviously loved the deceased very much, the applicant replied: "She's very smart. Her husband has made her do this." He also went on to say: "In Iran if you do anything wrong they execute you but in Australia, even if you kill, you go to gaol for a few years". The constable was cross-examined by counsel for the applicant on this discussion with the applicant on the basis that he had not made any notes of the conversation and that over a year had passed before he had made a written statement regarding the conversation. It was put to him that the applicant would give evidence, as indeed he did, that he did not say anything about the Australian law being that if you kill people you only go to gaol for a few years. It is true to say that there was some inconsistency in Constable Hancock's evidence in that, in his examination-in-chief, he indicated that he did not think anything of the comment at the time, whereas, in cross-examination, his evidence was that
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- it was always in his mind because it was an unusual statement which the applicant had made to him. Nothing, however, turns upon this.
42 The third officer, Constable Scott, gave evidence as to the events on 29 and 31 December 1996, the last mentioned date being that on which the applicant was charged with breaching the original restraining order. He gave evidence as to the events on 26 January 1997 and also of a discussion with the applicant on 8 March 1997, following the withdrawal by the deceased of the restraining order. Constable Scott was not challenged by counsel for the applicant on any material part of his evidence.
43 With respect to this ground also, the applicant has not sought to identify in relation to which matters the three witnesses had not spoken the truth. Their evidence having been given, it was for the jury to evaluate it. There is no substance in this ground of appeal.
44 The next contention, that the trial Judge misled the jury during his summing up of the case, without any particularisation, is totally uninformative. The learned trial Judge gave a careful direction to the jury, and I can find nothing in it which would justify any intervention by the Court of Criminal Appeal.
45 The remaining ground, that the jury were swayed in their decision due to a number of them having different religious beliefs from his own, is untenable. A similar contention was put forward in R v Ford [1989] QB 868, which was an appeal from a decision by the trial Judge declining to accede to an application for a multi-racial jury.
46 Having referred to the common law discretion of a Judge to discharge a particular juror who ought not to be serving on the jury, Lord Lane CJ, giving the judgment of the court, said at 872:
"It is important to stress, however, that that is to be exercised to prevent individual jurors who are not competent from serving. It has never been held to include a discretion to discharge a competent juror or jurors in an attempt to secure a jury drawn from particular sections of the community, or otherwise to influence the overall composition of the jury. For this latter purpose the law provides that 'fairness' is achieved by the principle of random selection."
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47 At 873 - 874, Lord Lane said:
"It has never been suggested that the judge has a discretion to discharge a whole panel or part panel on grounds that would not found a valid challenge. Similarly, in the absence of evidence of specific bias, ethnic origins could not found a valid ground for challenge to an individual juror. The alleged discretion of the judge to intervene in the selection of the jury does not therefore fall within any acknowledged category of judicial power or discretion.
There are, moreover, strong reasons why such a discretion should not be recognised. The whole essence of the jury system is random selection, as the passage from Reg v Sheffield Crown Court, Ex parte Brownlow [1980] QB 530, from Lord Denning's judgment cited in the course of argument, shows. He said, at 541:
'Our philosophy is that the jury should be selected at random - from a panel of persons who are nominated at random. We believe that 12 persons selected at random are likely to be a cross-section of the people as a whole - and thus represent the views of the common man … The parties must take them as they come.' "
"It should also be remembered that the mere fact that a juror is, for instance, of a particular race or holds a particular religious belief cannot be made the basis for a challenge for cause on the grounds of bias or on any other grounds. If therefore a judge were to exercise his discretion to remove a juror on either of these grounds, he would be assuming bias where none was proved."
49 At 875, having referred to a suggestion in some of the cases that there is a "principle" that a jury should be racially balanced, His Lordship said:
"In our judgment such a principle cannot be correct, for it would depend on an underlying premise that jurors of a particular racial origin or holding particular religious beliefs are incapable of giving an impartial verdict in accordance with the evidence."
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50 For the reasons expressed by Lord Lane, this ground of appeal must fail, no basis having been shown for the disqualification of any juror.
51 In the circumstances, I would dismiss the applicant's application for leave to appeal against his conviction for wilful murder.
52 The proposed grounds of appeal in relation to the applicant's application for leave to appeal against his sentence are:
(i) That the learned sentencing Judge erred in that the sentence imposed was manifestly excessive in all the circumstances.
(ii) Severity of sentence.
(iii) Parity with other sentences that have been handed down in recent cases that have been similar to his own.
(iv) His co-accused did not receive the same sentence as himself.
53 The learned trial Judge delivered extensive reasons for his sentencing the applicant to strict security life imprisonment with parole eligibility after serving 20 years. At the same time, he delivered his reasons for sentencing Salehi to life imprisonment with parole eligibility after serving 15 years' imprisonment. His Honour said he was satisfied on the evidence that the wilful murder of the deceased was seriously contemplated by the applicant, at least from the time he purchased the knife which he used to kill her, some two weeks prior to the killing. The killing of the deceased could not, his Honour said, be found not to have been premeditated. He said he was satisfied that, when, on 2 May 1997, the applicant entered the house armed with a knife and in the company of Salehi, it was agreed that Salehi would act as a look-out after he had checked the house to ensure that Mr Reynolds had left. He referred to the applicant's attempt to disconnect the telephone on his arrival at the house so that the deceased could not call for assistance. The applicant, his Honour found, had intended confronting the deceased, having in mind that he might kill her in the course of that confrontation. He was also satisfied that, at some time after entering the house, he did indeed form the firm intention of killing her, and that he had stealthily gone upstairs to locate her. He killed her in a particularly ferocious and violent way, despite her struggling to avoid being stabbed. He accepted the medical evidence as to the number and location of wounds on the deceased's body inflicted by the applicant, including those described as "defence wounds", which had been inflicted upon her as she had sought to defend herself. He was satisfied that the first stab wound was a penetrating wound, and that, on inflicting that wound, he had left his knife embedded in her body for some time before
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- extracting it, resulting in an immediate and substantial flow of blood. He then stabbed her repeatedly, changing the knife from his right hand to his left hand when his right hand had tired. He continued stabbing her until he was satisfied that she was dead. In the course of this, he used his body to ensure that she could not escape. His Honour was satisfied that the applicant deliberately directed his stabbings to the regions of the left breast, the heart, the neck and the vaginal area of the deceased. That he subsequently felt remorse for killing the deceased, and that he surrendered to the police almost immediately afterwards, did not reduce the criminal gravity of the offence. That was not an unlikely reaction, his Honour found, accepting that he had been in love with her.
54 His Honour did not accept the applicant's evidence that the deceased had paid him $US15,000 in order to kill her husband. Nor did he accept that she was pressuring him to do so in the face of his unwillingness.
55 It was not without significance, his Honour observed, that the applicant had committed the offence in the knowledge, not only that the deceased was married and living with her husband, but also that she had a young child who would be left motherless by her death.
56 So far as Salehi was concerned, his Honour said he was satisfied that he went with the applicant to the house in the knowledge that the applicant intended there to confront the deceased and to ensure that the applicant could enter the house confident that the deceased would be there alone. Salehi was to act as a look-out, to enable the applicant to carry out whatever his intention might have been in the course of that confrontation. His Honour found that Salehi had encouraged the applicant to proceed with the confrontation, whatever it involved. He was undoubtedly aware that the applicant was armed with a knife and he himself also carried a knife, which his Honour found he was carrying for use either physically or by way of threat should they be disturbed.
57 At the very latest, when he arrived at the deceased's house prior to the applicant's forced entry, his Honour found, Salehi was aware that the applicant either intended to kill the deceased, or that he might kill her. He entered the house for a period, thereby affording the applicant further encouragement before returning to the outside of the house where he kept watch to enable the applicant, uninterrupted, to carry out his intention. He found the criminal gravity of Salehi's involvement to be less than that of the applicant and he accepted the prosecution's submission that a sentence of life imprisonment was appropriate in his case. In my opinion, his Honour was correct in so finding, and no basis for any interference with
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- the applicant's sentence can be sustained on this ground. Salehi received a lesser sentence than that imposed upon the applicant because his involvement was less than that of the applicant. The difference between the sentences properly reflected the criminality of each.
58 No "parity" argument can be sustained by comparing the applicant's sentence with other sentences for wilful murder. There is, in my opinion, nothing to suggest that the learned sentencing Judge who presided at the trial erred in any respect in imposing a sentence of strict security life imprisonment. His Honour's findings, after having presided at the trial, speak for themselves. The killing of the deceased had been contemplated by the applicant for some two weeks and it was executed by him with appalling and sustained brutality. This was, in my view, a case in which the imposition of a sentence of strict security life imprisonment was entirely justified. It is not a sentence with which this Court should interfere.
59 The applicant claimed as one of the reasons for his belief that his sentence was manifestly excessive that he was innocent of killing the deceased. As the applicant will be unsuccessful in having his conviction set aside, this ground inevitably fails.
60 Once the conclusion is reached that a sentence of strict security life imprisonment was justified, the setting of a minimum period of 20 years which the applicant must serve before becoming eligible for parole cannot be interfered with, that period being the minimum period which can be set under s 91(1) of the Sentencing Act 1995.
61 For the foregoing reasons, I would dismiss the applicant's application for leave to appeal against his sentence.
62 In the outline of submissions prepared on behalf of the applicant, he complained that not all the evidence had been put before the jury. Specifically, he referred to three videos at the Morley Police Station and evidence of his complaint to the police regarding the deceased sending two hit men to kill the applicant in his flat. None of this evidence comes into the category of fresh evidence and no application has been made for its being admitted in the present application. In any event, it is not difficult to appreciate why counsel for the applicant might have concluded that this further evidence would not have assisted, but would have been distinctly unhelpful to, the applicant's case.
63 The Court was also sent a statement, signed by the applicant, which puts forward other new evidence which is quite inconsistent with the
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- applicant's own evidence on his trial. In the circumstances, I have had no regard to the contents of this statement, which cannot assist the applicant.
64 IPP J : I have read the reasons of the Hon Justice Kennedy. I agree with them and with his Honour's conclusions. I have nothing further to add.
65 OWEN J : I have read the reasons of his Honour Justice Kennedy. I am in agreement with those reasons and have nothing further to add.
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