Director of Public Prosecutions v Mehdi & Ors (Ruling 14)
[2025] VSC 262
•28 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0154
S ECR 2023 0155
S ECR 2023 0157
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ZEESHAN MEHDI, MOWEIT QIAN and DARA CHAU | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2025 |
DATE OF RULING: | 28 March 2025 |
DATE OF WRITTEN REASONS: | 23 April 2025 |
CASE MAY BE CITED AS: | DPP v Mehdi & Ors (Ruling 14) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 262 |
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CRIMINAL LAW — Murder — Joint trial — Applications to discharge jury on behalf of first and second accused — Applications arising from address by counsel for third accused — Application refused — Jury Directions Act 2015 (Vic) ss 7 & 42; R v Boland [1974] VR 849; DPP v Hills & Ors (Ruling No 9) [2010] VSC 597.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton SC with Ms J Ball | Office of Public Prosecutions |
| For Zeeshan Mehdi | Mr M McGrath with Mr W Blake | Slades & Parsons Criminal Lawyers |
| For Moweit Qian | Mr G Casement with Ms L Andrews | Chester Metcalfe & Co |
| For Dara Chau | Mr J Desmond with Ms S Stanley | Giorgianni & Liang Lawyers |
HER HONOUR:
Introduction
This is an application by Mr McGrath to discharge the jury in the trial of his client, Mehdi. Mr Casement on behalf of Qian has also made an application to discharge the jury in the trial of his client. Both applications are based substantially on comments made by Mr Desmond in the course of his closing address. Mr Desmond’s client, Chau, is third on the indictment and therefore Mr Desmond addressed last. There is no opportunity for any counsel to respond to his arguments or submissions. To the extent that there may be the power to give either defence counsel limited leave to make a further address, sensibly neither counsel has sought that course.[1]
[1]DPP v Hills & Ors (Ruling No 9) [2010] VSC 597, [28].
The applications were made and ruled upon on 28 March 2025. I gave reasons at the time of my ruling and indicated that I may give further written reasons if I considered it necessary. These are those reasons.[2]
[2]The reasons are expressed as if published at the time of ruling.
Submissions on behalf of Mehdi
Mr McGrath based his application on two main points:
(a) First, the matters that have been raised by Mr Desmond in the trial of Chau; and
(b) Second, the residual and combined prejudice arising from a question the jury asked earlier, inquiring as to why they had not heard about the criminal history of the accused.[3]
[3]That question was asked on 24 March 2025, after the prosecution had closed their case and all accused had announced their course. It triggered a discharge application by all three accused. The application was refused.
Dealing with the first point, Mr McGrath relied on the following eight matters found in Mr Desmond’s closing address:
(a) Mr Desmond gratuitously and unfairly criticised the opening defence response by Mr McGrath, and suggested that he, Mr Desmond, was the only one who had been honest and upfront with the jury from the outset. This was an unnecessary and direct attack on the conduct of counsel, and by extension, an indirect attack on the credit of Mehdi. The defence response of Mehdi was made in accordance with the Criminal Procedure Act 2009 (Vic) (‘CPA’). The criticism should not have been made, and the real vice is not the criticism, but the suggestion that what Mr McGrath says on behalf of Mehdi lacks credibility.
(b) Mr Desmond referred to certain critical text messages passing between Mehdi and Chau, and made the point that the messages were ‘untested’. Mr Desmond went on to point out that one particular message, written by Mehdi, was ‘untested by any cross‑examination’. Essentially, Mr Desmond was pointing out that Mehdi did not give evidence, and inviting the jury to conclude that Mehdi did not give evidence because that would not have assisted his case. Such a statement is prohibited by s 42 of the Jury Directions Act 2015 (Vic) (‘JDA’). Section 7(1)(a) of the JDA requires the trial judge to correct such a prohibited statement, but that would not cure the problem.
(c) Mr Desmond stated, as he is entitled to do, that Mehdi, on the Crown case, was planning to kill the deceased. However, he moved from categorising matters as part of the Crown case, to asserting that Mehdi was part of an agreement to commit murder. Mr Desmond did this by suggesting the witness Kolio lied to police about his role on this night and, by doing so, avoided a murder charge. Mr Desmond positively asserted there was an agreement to kill and Kolio was part of that agreement. It was not put to Kolio that he was party to an agreement to kill the deceased, and Mr Desmond was required to do that if he wanted to make such an argument.
(d) Mr Desmond criticised Mr McGrath for the way he dealt with the CCTV footage. Mr Desmond said to the jury that Mr McGrath ‘did not do anything with [the footage]’ and did not enlarge it for them. In doing so, Mr Desmond suggested that Mr McGrath, on behalf of Mehdi, somehow acted improperly and did not assist the jury. The criticism was improper and it is prejudicial to Mehdi’s defence.
(e) For no explicable reason, Mr Desmond, in dealing with a text message from Mehdi to Chau which reads in part ‘bags or no bags, please remember the mission for tonight’, stated: ‘It’s probably not a reference to doing a transaction over these fake Louis Vuitton bags’. There is no evidence that Chau and Mehdi were ever communicating over the sale of handbags. There is some evidence that Mehdi and Kolio were dealing with handbags, but no evidence they were fake. Mr Desmond’s assertion was irrelevant and prejudicial, as it introduced the idea that Mehdi was dealing in stolen or counterfeit property.
(f) Mr Desmond said, in relation to Unit 2/88 Corrigan Road (‘Unit 2’), that ‘if this is a drug house’ any potential drug buyer could turn up at any time. There is no evidence that Unit 2 is a ‘drug house’, and Mehdi is linked to those premises. Following objection, Mr Desmond withdrew what he had said during the balance of his address. Mr McGrath argued that while in isolation the correction may have remedied the problem, when viewed in combination with the other matters, it is prejudicial and justifies the discharge of the jury.
(g) Mr Desmond submitted that when Mehdi showed the firearm to Jabbour, Mehdi deliberately chose a time when Chau was out of the car. This is inconsistent with the evidence. Chau was out of the car when Jabbour saw the firearm in the bag at Mehdi’s feet, but there is no evidence Mehdi showed Jabbour the firearm. It was unfair and prejudicial for Mr Desmond to submit Mehdi deliberately hid firearms from Chau, and the submission was made with force: Mr Desmond was yelling the submission at the jury just prior to the lunch break.
(h) Mr Desmond mischaracterised and overstated the evidence of Dr Sorell, the mobile telephone expert. Mr Desmond submitted that Dr Sorell had said there was evidence that the Mehdi and Chau handsets separated immediately after the shooting, but there was no evidence of separation.
Mr McGrath dealt briefly with the second point. He argued that the additional matters have compounded the prejudice arising from the jury’s question and, in combination, there is a high need to discharge the jury in the trial of Mehdi.
Mr McGrath also fairly drew the Court’s attention to a ruling of Kaye J in DPP v Hills & Ors (Ruling No 9),[4] where counsel sought a discharge of the jury in relation to his client based on what another counsel had said in the course of their closing address. The application was unsuccessful.
[4][2010] VSC 597.
Submissions of behalf of Qian
Mr Casement adopted the submissions of Mr McGrath, and in particular relied on matters one, three and eight as raised by Mr McGrath.[5]
[5]These are paragraphs [4](a), (c) and (h) above of this Ruling.
In relation to the first matter, Mr Casement argued Mr Desmond’s criticism of his defence response was unfounded. He complied with the CPA, and it was unfair for Mr Desmond to suggest to the jury that he was the only counsel who had been direct or honest with them at the commencement of the trial. Mr Casement otherwise relied on the submissions of Mr McGrath.
Mr Casement also submitted that Mr Desmond’s comments about Unit 2 being a ‘drug house’ cannot be cured, despite Mr Desmond’s retraction. Mr Casement argued his client was at that house, so even though Qian had not been there earlier and did not know Mehdi prior to this night, it nonetheless causes prejudice in his trial. Mr Desmond’s suggestion that this was a ‘drug house’ also undermines the credibility of the person Rahimi, who was inside bedroom two when the shooting occurred. Mr Casement, in his closing address, relied heavily on what Rahimi told police. The observations of Rahimi have now been discredited in the eyes of the jury, as Mr Desmond has proffered the suggestion that this was a drug house, which would, by inference, make Rahimi a drug user or at least less reliable.
Mr Casement argued Mr Desmond has ‘unwittingly’ filled the void created by the jury’s question. That is, the jury were concerned as to why they were not told about the criminal histories of the accused, and Mr Desmond has now suggested to the jury that Unit 2 was a drug house. Mr Casement submitted the numerous vices cannot be corrected and, when viewed overall, there is a high degree of need to discharge the jury.
Submissions on behalf of Chau
Mr Desmond did not seek to be heard on the applications. He refuted the suggestion, made by Mr McGrath, that he had breached s 42 of the JDA. Mr Desmond submitted that he had given the jury reasons to put less weight on the messages. The submissions were properly made and were not in breach of s 42. Mr Desmond disagreed entirely with the suggestion that he had misstated the evidence of Dr Sorell.
Submissions on behalf of the prosecution
Mr Hutton SC submitted he was ‘not convinced’ that s 42 of the JDA had been breached. He argued that, at most, Mr Desmond may have drawn attention to the fact Mehdi did not give evidence, but that alone is not the prohibition found in s 42. If s 42 was breached, it can be corrected under s 7 of the JDA by giving a s 41 direction, which will be given in any event. Mr Hutton noted that each counsel closed for approximately one day, and the argument formed a minor part of Mr Desmond’s closing address.
Mr Hutton submitted that Mr Desmond had misstated the evidence of Dr Sorell but this can be corrected during my charge and does not necessitate, alone or in combination with other factors, a discharge of the jury.
Mr Hutton argued that the balance of the matters are capable of being dealt with by way of judicial direction and, in particular, by the directions dealing with separate trials. There are powerful public interest considerations which favour a joint trial with joint offenders, and a consequence of a joint trial is that the individual interests of each accused may not always align. To the extent that the cases of Mehdi and Chau appear to clash, that would occur in any joint trial, and may never be capable of reconciliation. Each accused has his own case to defend and there was no vice in much of what Mr Desmond submitted. The matters relied on by Mr McGrath and Mr Casement are not matters that individually or collectively amount to a high degree of need to discharge the jury at this stage of the trial.
Analysis and conclusion
The jury question
Before dealing with the applications themselves, it is necessary to say something about the ‘jury question’ referred to in the course of argument. The question was: ‘Your Honour, is there a reason we don’t hear the criminal history of the accused?’. Discharge applications were subsequently made and refused. In the course of refusing the applications, I noted that:
·The question was entirely logical in the circumstances of this case. It would be obvious to the jury that Mehdi and Chau were associating with drug users, including drug traffickers, and most particularly the witness Kolio. Mehdi, Chau and Kolio were in and out of the Quest Hotel in the days and nights prior to the shooting.
·Mehdi’s friends at the time of this incident included the witnesses Jabbour, Kolio and Subu. Extensive cross‑examination was directed to proving they were all heavy drug users and, at least in the case of one or two of them, drug traffickers.
·The jury know that Qian was found with a sawn‑off single barrel shotgun in his car in October 2022 approximately four months after the incident. It is a matter for the jury as to whether they conclude this was the murder weapon, but regardless of their conclusion, the evidence is that Qian was driving around with such a weapon.
·This is not a case where any of the participants, whether they are witnesses or accused, go to the police in an effort to deal with their grievances. For example, Mehdi does not report the assault occasioned to him on 8 July 2022 by the deceased, three days before the alleged murder.
It is also worth noting the following:
·No real explanation has ever been proffered on behalf of Qian as to why he had a single barrel sawn‑off shotgun in his car in October 2022.
·Unit 2 has been referred to, somewhat euphemistically, as Mehdi’s ‘home’. The unit has virtually no furniture. Rahimi was living in bedroom two, but it is otherwise unclear who was living there and who the landlord was. People were coming and going from the unit at all hours of the day and night, including on the night in question. The three accused were interacting at all hours on the night of 10 July and into the morning of 11 July.
·The witnesses Kolio, Jabbour and Subu have extensive criminal histories and considerable time was spent in cross‑examination going through their prior convictions. Jabbour’s prior convictions include firearm offences. As noted above, at the relevant time, these people were friends with the accused Mehdi. Mehdi, knowing the deceased was looking for him, chose to go to Jabbour’s house on the night in question. The witness Subu was also friends with Mehdi’s wife, Diana Mossawi.
The argument concerning s 42 of the JDA
Section 42 of the JDA states:
Prohibited statements and suggestions in relation to accused who does not give evidence or call witness
The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires), the jury may—
(a) conclude that the accused is guilty from that fact; or
(b) use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or
(c) draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.
Note
Section 7 provides for correction of statements or suggestions to the contrary of this provision.
Section 7 states:
Correction of statements or suggestions that are contrary to Act
(1) Subject to subsection (2), the trial judge must—
(a) correct a statement or suggestion by the prosecution or defence counsel (or, if the accused is unrepresented, the accused) that is prohibited by this Act; and
(b) correct a statement or suggestion prohibited by this Act that is in a question from the jury.
Note
Sections 33, 42 and 51(1) prohibit certain statements and suggestions.
(2) The trial judge need not correct a statement or suggestion referred to in subsection (1) if there are good reasons for not doing so.
Example
A good reason may be that counsel has already corrected a prohibited statement or suggestion at the invitation of the trial judge.
Here, the question is really whether Mr Desmond invited the jury to reason in a manner forbidden by s 42. That is, did he suggest that the jury could: (a) conclude that Mehdi was guilty from the fact that he did not give evidence; (b) use the failure of Mehdi to provide an explanation of facts, which must be within his knowledge, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of Mehdi; or (c) draw an inference that Mehdi did not give evidence because that would not have assisted his case. In my view, it is really the third of those propositions that is relevant to the discharge application made on behalf of Mehdi. The second proposition may have some relevance.
I do consider that Mr Desmond drew the jury’s attention to the fact that Mehdi had not given evidence. (In doing so, he also drew the jury’s attention, albeit perhaps less directly, to the fact that his own client did not give evidence.) However, that is not the prohibition found in s 42. What the section prohibits is to say or suggest in any way that because an accused did not give evidence, the jury may do any of the things found in the sub‑paragraphs.
An adverse inference, for the purposes of 42(b), must be an inference that, if drawn, would prove the guilt of the accused. Arguably, if Mr Desmond had invited the jury to infer that Mehdi was arranging for a murder but had not told Chau what was really going on, that would be, relevantly, an ‘adverse inference’. However, in my view, Mr Desmond did not invite the jury to draw such an inference based on Mehdi’s failure to give evidence. Mr Desmond’s submission in this respect was based on the words of the messages themselves and, in particular, Chau’s response, which was to ask Mehdi what he wanted to do.
On one view, Mr Desmond referred to the failure by Mehdi to explain the text message he had written, and it could be argued that he invited the jury to infer that Mehdi did not give evidence because any attempt to explain that message would not have assisted his case. I consider that Mr Desmond came very close to breaching s 42(c). However, ultimately, Mr Desmond’s submission to the jury was that they should put less weight on the messages in all the circumstances. If the jury take up that invitation, it will not disadvantage Mehdi. Mr Desmond also pointed out that the words are vague and ambiguous and their meaning unclear. Finally, Mr Desmond pointed out that if a range of interpretations are open, the jury must not just choose the ‘bad one’, meaning the guilty one. Again, if the jury agrees with either or both those arguments, it will not disadvantage Mehdi.
No substantial submissions were made by Mr McGrath as to how the jury should approach these messages. They are significant evidence against both Mehdi and Chau that a jury is unlikely to overlook. It was reasonable for Mr Desmond to deal directly with the messages, and proffer reasons why the jury should approach them with caution and not rush to draw adverse conclusions.
In my view, even if s 42 was breached, the s 41 direction will serve as a correction pursuant to s 7. The jury will be told that there is no burden of proof on any accused. It is for the prosecution to prove its case beyond reasonable doubt. An accused is not required to give evidence. The fact that an accused did not give evidence cannot be used as evidence against that accused, and cannot fill gaps in the prosecution case. They also must not speculate about what any of the accused might have said if he had given evidence. If anything additional should be said, I will hear from the parties. Arguably, the jury could be told that the fact an accused did not give evidence cannot be used to improve or bolster the case of any other accused. My current view is that such a direction would not assist, but if such a direction is requested, I will consider the request.
Other matters
Returning to the balance of the matters argued here, in my view, the comments made by Mr Desmond about the opening defence responses of the co‑accused were gratuitous and unnecessary. On a fair reading of what he said, he was seeking to suggest to the jury that he, unlike the other defence counsel, has been making credible and honest submissions since the start of the trial. In my view, counsel for Mehdi and Qian complied with the CPA in their defence responses and the argument of Mr Desmond should not have been made. Indeed Mr Desmond opened to the jury on the basis that ‘other than presence, Chau did not participate. He did no acts, other than being present’. Arguably, that submission was not entirely accurate, given the defence is that Chau does not admit he was present inside Unit 2 at the time of the shooting. In any event, the jury have not been (and will not be) given the transcript of the openings of counsel, which occurred six weeks ago. It can be made clear to the jury that all opening defence responses were entirely appropriate and should not have been the subject of criticism by Mr Desmond.
The complaint that Mr Desmond has mischaracterised or inaccurately stated the evidence of Dr Sorell can be cured by summarising the evidence of Dr Sorell. Dr Sorell did not give evidence that, based on the phone records, the handsets separated. Dr Sorell was asked about the gap in Chau’s records between 5:42am and 5:57am. He said at 5:57am, within four seconds, the Chau service and the Mehdi service connect to the same base station. He agreed that does not necessarily mean they are together, but he did not say it is evidence that they separated. Overall, the records he reviewed for Mehdi, Qian and Chau are consistent with movement of those three services around 5:57am in a westerly direction.
Mr Desmond’s comment about Unit 2, namely ‘if this is a drug house’, should not have been said, although I note the comment was prefaced by ‘if’. Mr Desmond did not positively say to the jury that this was a drug house. The comment was corrected by Mr Desmond. Mr Desmond was making the point that if this was a plot to commit murder, you would not plan for it to occur at a place where other people may arrive unexpectedly. As set out in my earlier ruling and repeated above, the facts of this case inescapably give rise to the fact that Mehdi, and to a lesser extent Chau, are friends with, or acquaintances of, people who are drug users and have criminal histories. That topic has been the subject of substantial cross‑examination by all defence counsel and cannot be divorced from the facts of this case. A direction pursuant to s 23 of the JDA will be given in the trials of Mehdi and Chau. In my view, it is doubtful that Mr Desmond’s comment created any real prejudice, but if it did, I consider that it has been cured by the subsequent withdrawal of the comment.
I understand that neither Mr McGrath nor Mr Casement liked the argument that Kolio may have lied because he himself was party to an agreement to murder and playing the role of lookout, however Mr Desmond was entitled to raise that argument and suggest it may have provided Kolio with a motive to lie. I note that in the ruling of Kaye J in DPP v Hills (Ruling No 9), his Honour foreshadowed directing the jury that the fact that a co‑accused supports the Crown against the case of another co‑accused does not make the arguments advanced by the Crown any better. It may be such a direction could be given here, or it may not be sought, or necessary, or advantageous. I also note that here, it is not the Crown case that Kolio was part of any agreement to harm the deceased. Detective Singh gave strong evidence that he never thought there was a basis to charge Kolio with murder, and if the jury accept the evidence of Detective Singh, then the argument made by Mr Desmond will likely carry little weight.
Mr McGrath’s complaint that Mr Desmond unfairly criticised the way he dealt with the CCTV footage is without merit. There is no realistic possibility that what was said could have prejudiced the jury against either Mr McGrath or his client. What can be seen on that particular piece of CCTV footage is an issue in the trial and a matter for the jury.
Turning to Mr Desmond’s comment about fake handbags, the topic of handbags was raised by the witnesses Jabbour and Kolio. Jabbour gave evidence‑in‑chief that Kolio had brought 20 designer handbags to his house the day after the shooting and Matilda McLaren tried to steal them. Jabbour prevented the theft, and later Mehdi and his wife came together to collect the bags. In cross‑examination by Mr McGrath, Kolio said Mehdi had ‘really high quality handbags’ and he wanted those bags so he could sell them and make a large profit. It was suggested to Kolio that he had earlier told police he would only make a small profit and that was the truth. It was put that if the handbags were sold, the person who would profit most from the sale was Mehdi. It was suggested to Kolio that he was lying when he said he would make a large profit. It was also suggested he was meeting Mehdi at the Highways Hotel because of a plan to sell the handbags, which Kolio eventually seemed to accept. It was also put to Kolio that he was lying when he said he was on Corrigan Road this night because he wanted the handbags, and in fact he was there to try and stop the deceased from assaulting Mehdi.
In my view, the topic of handbags was an extremely small part of the evidence in this trial. The witness Kolio was cross‑examined for several days. The cross‑examination of Kolio by Mr McGrath about the handbags may have raised in the mind of the jury the question of whether the handbags were fake or where they had come from, but in the circumstances of this trial, it would not create any relevant prejudice. The reference to ‘fake Louis Vuitton handbags’ by Mr Desmond was confusing and no witness ever referred to the brand ‘Louis Vuitton’. However, I do not regard the comment as unfairly prejudicial in the trial of Mehdi. I note that a s 23 direction has not been sought by Mr McGrath concerning the handbags and in my view there is good reason for that. If one was requested, it would be based on the evidence and not on anything said by Mr Desmond.
To the extent that Mr Desmond mischaracterised the evidence of the witness Jabbour, the jury will be reminded that nothing counsel says in their closing addresses is evidence in the trial. They can also be directed that, to the extent that counsel purport to summarise the evidence of a witness, that is not evidence. If necessary, they can be taken to what the witness Jabbour said about seeing the gun in the bag at Mehdi’s feet, but given I am not intending to summarise the evidence of the witnesses, that would seem unnecessary. I also note it is not disputed that Mehdi did have the shotgun at this point in time and it was inside a red bag.
Conclusion
In R v Boland,[6] the Court stated:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v. R. (1866), L.R. 1 Q.B. 390. The principle is really one of necessity. There must be evident ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’: per Erle, C.J., at p. 394.[7]
[6][1974] VR 849.
[7]Ibid 866.
A number of factors must be considered when determining the applications. Those factors include the seriousness of the incident; the stage of the trial; whether the prosecution could effectively present its case a second time; the likely effectiveness of any direction by the trial judge; and whether the incident is capable of affecting the outcome of the trial.
It must be steadily borne in mind that nothing said by Mr Desmond is evidence in the trial and the jury will be told this in my charge. This is not a situation where evidence has been wrongly admitted.
The trial is in its final stages. I am about to commence my charge and the jury will likely retire to deliberate early next week, which will be week seven of the trial. That is a factor that weighs against the discharge of the jury. Of course, it is not the case that juries can never be discharged at such a stage. If a high degree of need arises, that high degree of need does not get set aside because the trial is almost at its conclusion.
A number of the matters complained about can be corrected in the course of my charge in the ways I have already discussed. In my view, nothing said by Mr Desmond is capable of adversely affecting the outcome of the trials of Mehdi or Qian. The jury have been attentive throughout, and are more than capable of understanding that they must decide this case on the evidence and on no other basis. In my view, none of the matters raised, individually or collectively, create real prejudice in the trials of Mehdi or Qian. It is regrettable that Mr Desmond made a number of the comments that he did; the points he sought to make could have been made just as effectively without the comments that have given rise to this application. However, I have reached the conclusion that there is no high degree of need to discharge the jury.
The applications are refused.
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