Iskandar v The King

[2025] NSWCCA 33

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Iskandar v R [2025] NSWCCA 33

Hearing dates:

2 December 2024

Date of orders:

24 March 2025

Decision date:

24 March 2025

Before:

Hamill J at [1]
N Adams J at [138]
Sweeney J at [158]

Decision:

(1) Extend the time in which to appeal.

(2) Leave to appeal on grounds (1) and (3) granted.

(3) Leave to appeal on ground (2) refused.

(4) Appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against conviction – lengthy delay in instituting appeal – where applicant accused of complicity with father in murder of wife’s lover – “honour killing” – whether conduct of Prosecutor led to a “miscarriage of justice” – religious and cultural stereotypes – cross-examination as to applicant’s religious beliefs – conduct not necessary but not improper – issue raised squarely at the commencement of prosecution opening statement – no objection taken – different approaches to “miscarriage” – where High Court reserved on issue – presumptuous and barren exercise to predict outcome – befuddling – alternative approaches considered – strength of prosecution case – application of proviso – whether no substantial miscarriage actually occurred

CRIMINAL LAW – “Shepherd” direction – whether motive or “honour killing” theory required proof beyond reasonable doubt – directions on circumstantial evidence orthodox and correct – specific direction not sought at trial – no merit in ground – leave to appeal on specific ground refused

CRIMINAL LAW – conditions of incarceration – ground asserting transport and conditions establishing a miscarriage – where trial Judge sympathetic and granted adjournments when requested – serious issue raised but no miscarriage established

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 6(1)

Evidence Act1995 (NSW), ss 41, 41(1)(d), 55, 137

International Convention on the Elimination of All Forms of Racial Discrimination, art 5

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

NSW Barristers Rules 2014 (NSW)

Prosecution Guidelines (NSW)

Racial Discrimination Act 1975 (Cth)

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Andrew Iskandar v R [2013] NSWCCA 235

Armstrong v R [2013] NSWCCA 113

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14

Brawn v The King [2024] HCATrans 85

Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Holmes v R [2024] NSWCCA 233

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMMv The Queen (2016) 257 CLR 300; [2016] HCA 14

Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86

KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213

La Rocca v R [2021] NSWCCA 116

Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334

MDP v The King [2024] HCATrans 84

Minniti v R [2006] NSWCCA 30; (2006) 159 A Crim R 395

Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

R v Kulwinder Singh (No 1) [2019] NSWSC 1000

R v Maglovski (No 2) [2013] NSWSC 16

R v Merritt [1999] NSWCCA 29

R v Qaumi & Ors (No 30) [2016] NSWSC 586

R v Turnbull (No 8) [2016] NSWSC 714

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Tomlinson v R [2022] NSWCCA 16

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6

Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Andrew Iskandar (Self-represented)
The King

Representation:

Counsel:
S Traynor (Rex)

Solicitors:
Office of the Director of Public Prosecutions (Rex)

File Number(s):

2010/00049007

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Crime

Date of Decision:

Conviction on 21 November 2011

Before:

Davies J

File Number(s):

2010/00049007

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mohd Shah Saemin was murdered on 21 February 2010 in Leichhardt. The applicant and his father, Hazairin Iskandar (“Hazairin”), were charged with the murder. The prosecution case was that the applicant and Hazairin acted together pursuant to a joint criminal enterprise and killed Mr Saemin by bashing him with a hammer and stabbing him. The prosecution alleged that the crime was motivated by Mr Saemin having an affair with the applicant’s mother (and Hazairin’s wife), Nita. Hazairin was convicted of murder in a separate trial. The applicant stood trial with his mother, who was charged with being an accessory after the fact (count 2) and the applicant was also charged with soliciting the murder of a material witness (count 3). The prosecution case consisted of evidence of the relationships between the parties, the testimony of eyewitnesses to the attack, forensic evidence linking the applicant to the crime scene and weapons, direct admissions along with evidence of the applicant’s post offence conduct said to demonstrate a consciousness of guilt including flight, attempting to set up a false alibi and telling material lies. There were other pieces of circumstantial evidence including the applicant and his father renting a car that was used on the night of the murder and their attendance outside the victim’s (and Nita’s) place of employment. The applicant gave evidence admitting (contrary to lies he told shortly after the killing) that he was present but denying that he was part of a joint criminal enterprise with his father and asserting that his actions were done in defence of his father or in self-defence.

The Prosecutor at trial described the murder as “an honour killing” in her opening and closing addresses, and cross-examined the applicant about his religious beliefs and the approach of Islam to adultery.

The jury found the applicant guilty of murder, but not guilty of soliciting the murder of the witness. Nita was found guilty of count 2. The applicant sought leave to appeal against his conviction on three grounds:

(1) The trial miscarried because the Crown Prosecutor addressed the jury and cross-examined in an improper manner.

(2) His Honour failed to give adequate directions during the summing up, occasioning a miscarriage of justice.

(3) The trial miscarried because of inhumane gaol conditions that led to [a] sleep deprivation inducing environment undergone by the appellant during his trial.

The Court extended the time in which to appeal, granted leave to appeal on grounds 1 and 3, refused leave on ground 2, and dismissed the appeal. The Court held:

As to ground (1):

1 The Prosecutor’s characterisation of the murder as an “honour killing” in connection to the applicant’s religion and the cross-examination as to Islamic beliefs as to adultery was unnecessary and regrettable. The conduct was capable of amounting to an “irregularity” in the trial for the purpose of the “Exchequer rule”. However, there was no miscarriage of justice because the conduct did not have a meaningful or potential impact on the outcome of the trial. This conclusion was based on three essential considerations: (1) while the issue ought not to have been put to the jury, even implicitly, by way of a religious or cultural stereotype, the evidence of the applicant’s “motive” would have been before the jury in any event; (2) the applicant denied that he knew about the affair until after the killing and this was the real issue between the parties on the question of motive; and (3) the applicant’s counsel at the trial raised no objection and made a forensic choice to use the evidence to the applicant’s advantage by arguing that the motive applied to Hazairin but not to the applicant, an approach that supported the applicant’s case that the father acted alone and that he was spontaneously involved in the incident: [87]-[109] per Hamill J (Sweeney J agreeing at [158]).

Reserved judgments in MDP v The King [2024] HCATrans 84 and Brawn v The King [2024] HCATrans 85 noted and Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 applied.

2 Even if the irregularity amounted to a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW), there was no substantial miscarriage of justice because the case against the applicant was “strong to the point of being overwhelming” and the conduct of the case at trial was such that the proviso to s 6(1) should apply: [110]-[116] per Hamill J (Sweeney J agreeing at [158]).

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 and Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 applied.

3 There was no need for the prosecution to call expert evidence on the issue and evidence of cultural and religious tendency is problematic and generally not admissible: [97] per Hamill J (N Adams J agreeing at [144] and Sweeney J agreeing at [158]).

R v Maglovski (No 2) [2013] NSWSC 16 and R v Kulwinder Singh (No 1) [2019] NSWSC 1000 applied.

4 While the Prosecutor’s conduct was unnecessary, it did not give rise to an “irregularity” in the trial proceedings for four reasons: (1) the applicant’s trial counsel had no difficulty with the manner in which the Prosecutor dealt with motive and embraced it as part of the defence case; (2) the trial Judge did not express concern about any aspect of the manner in which the Prosecutor dealt with motive; (3) the evidence of the applicant’s motive was properly before the jury in his admissions to Mr Lau; and (4) the Prosecutor did not give the identified motive of an “honour killing” undue prominence in the overall case: N Adams J per [152]-[156].

As to ground (2):

5 There was no sensible view of the evidence which would lead to the conclusion that the prosecution case on motive was a necessary link in the chain of reasoning to an inference of guilt to warrant a “Shepherd direction”. The directions on circumstantial evidence given at the applicant’s trial were orthodox, clear and unimpeachable. There was no submission made at trial that such a specific direction of the kind now contended for should have been provided to the jury: [120]-[124] per Hamill J (N Adams J agreeing at [138] and Sweeney J agreeing at [158]).

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 and R v Merritt [1999] NSWCCA 29 applied.

As to ground (3):

6 The transport of inmates to and from Parklea prison and the consequent lack of sleep for people on trial, raise important issues of fairness, requiring trial judges to exercise caution and flexibility. The trial Judge approached the issue with sensitivity and sympathy for the applicant’s circumstances. Counsel for the applicant at trial raised the issue on several occasions and adjournments were granted when requested. The record of the proceedings and the affidavit read on the appeal did not establish that the applicant’s treatment by prison authorities during the trial resulted in a miscarriage of justice: Hamill J per [130]-[136] (N Adams J agreeing at [138] and Sweeney J agreeing at [158]).

R v Qaumi & Ors (No 30) [2016] NSWSC 586; R v Turnbull (No 8) [2016] NSWSC 714 and Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 discussed.

JUDGMENT

1. HAMILL J: On 28 November 2011, following his trial before Davies J and a jury, the applicant Andrew Iskandar was found guilty of the murder of Mohd Shah Saemin. Mr Saemin, who was also referred to as “Shah” during the trial, was killed on 21 February 2010. The applicant was sentenced to imprisonment for 25 years with a non-parole period of 18 years. This Court (Beazley P, RA Hulme and Bellew JJ) heard an application for leave to appeal against the sentence in October of 2013 and adjusted the commencement date of the sentence: Andrew Iskandar v R [2013] NSWCCA 235. Under the sentence so adjusted, the applicant will become eligible for release to parole on 23 February 2028.

2. By notice of appeal dated 14 July 2024 and filed 24 July 2024 the applicant, who is self-represented, seeks to appeal against his conviction. The applicant also seeks leave to appeal outside the expiry date of the filing period. The respondent opposes the grant of leave to appeal so far out of time. The notice of appeal was filed more than 14 years after the murder, more than 12 years after the conviction, and about 10½ years after the applicant’s appeal against sentence, upon which he was represented by well respected Senior Counsel, was finalised. The respondent’s arguments against the grant of leave are powerful. Reference was made to the desirability of finality and the interests of the victims and witnesses and the prosecution itself.

3. However, the respondent acknowledges that prospects of success is a relevant consideration. Accordingly, it is necessary to consider the applicant’s arguments on the conviction appeal before deciding whether to make an order extending time in which to bring the appeal. He advances the following grounds:

1. The trial miscarried because the Crown Prosecutor addressed the jury and cross-examined in an improper manner.

2. His Honour failed to give adequate directions during the summing up, occasioning a miscarriage of justice.

3. The trial miscarried because of inhumane gaol conditions that led to [a] sleep deprivation inducing environment undergone by the appellant during his trial.

4. I have concluded that there is sufficient merit in the first of these grounds of appeal to justify both an extension of time in which to appeal and a grant of leave to appeal despite the absence of objection at the trial to the prosecutorial conduct of which complaint is now made. I have also concluded that the subject matter of the third ground of appeal warrants the grant of leave. However, I would dismiss the appeal against conviction. These are my reasons for those conclusions.

An overview of the prosecution case at trial

5. The prosecution case was that the applicant and his father, Hazairin Iskandar (“Hazairin”), acted together pursuant to a joint criminal enterprise and killed Mr Saemin in the streets of Leichhardt by bashing him with a hammer and stabbing him. The prosecution alleged that the two men were motivated by their animosity towards the deceased which arose from the fact that he was having an affair with Hazairin’s wife (“Nita”). Nita was the applicant’s mother. Hazairin was tried separately and was also convicted of murder. Nita was tried with the applicant and found guilty of being an accessory after the fact to the murder. The applicant was found not guilty of a third count by which it was alleged that he solicited an inmate on remand to murder a witness, Victor Kai Yu Lau.

6. Broadly speaking, the prosecution case against the applicant consisted of evidence of the relationships between the parties, testimony from a number of eyewitnesses who saw the incident leading to Mr Saemin’s death, forensic evidence linking the applicant and his father to the hammer and the crime scene, admissions by conduct or consciousness of guilt (attempting to set up a false alibi, telling a material lie to investigating police, and flight) and explicit admissions as to the applicant’s involvement in the event and his motive. There were other pieces of circumstantial evidence such as the hiring of a rental car which was used to get to and from Leichhardt, evidence that the two alleged perpetrators were near the victim’s (and Nita’s) workplace on 15 February 2010, communications between the applicant and his father and the location of items in a backpack found at the applicant’s home during a search warrant, which were capable of being used in a kidnapping.

7. Because of the nature of the grounds of appeal and the fact that most of the primary facts were not in dispute, it is not necessary to set out the evidence at length or in detail. What follows is a brief precis of some of the evidence adduced at the trial.

Evidence of relationships and motive

8. There was no dispute that Nita was married to Hazairin and that the applicant was their son. There was evidence, again not disputed, that the relationship was a troubled one. There were discussions of a possible divorce in 2009.

9. Nita had worked in the accounts and payroll department at the Malaysian Consulate in Sydney since at least July 2005 and Mr Saemin started working as a driver at the Consulate in late December 2006.

10. Both were married to other people but formed a friendship which developed into a romantic relationship in the context of working together at the Consulate. Several members of staff gave evidence of rumours circulating amongst people at the Consulate that the couple was having an affair. These witnesses also gave evidence of the reasons for the rumours; for example, the pair were seen holding hands at work, travelling to or from work together, entering the prayer room together in a way some staff considered to be inappropriate, and sharing lunches. One Consulate employee gave evidence that he saw Nita and Mr Saemin having physical contact with each other with Nita applying hair tonic to Mr Saemin or giving him a neck massage. A witness, Immadudin, became friends with Mr Saemin who admitted he was in love with Nita and planned to marry her in the future. Immadudin also spoke to Nita about her relationship with Mr Saemin. Nita said the witness should support her, not “correct me”, and their friendship soured after that conversation.

11. Janese Campbell was Mr Saemin’s wife. She testified as to conflict in the marriage which arose in October 2007 when they were travelling in Malaysia and she found out that the deceased had purchased Nita a “Moslem style [of] dress”. She also said that her husband often brought home “Malay food” that Nita had made for him.

12. The prosecution case was that this body of evidence established a motive in both the applicant and Hazairin to do harm to Mr Saemin.

Eyewitnesses at the crime scene

13. There were several eyewitnesses to the assault on Mr Saemin on 21 February 2010 by the applicant and his father.

14. Sandro Mariani lived in a first-floor apartment in Marion Street with a balcony that looked down onto Cromwell Street. Mr Mariani was watching television when he heard what he described as a “small smash, car smash sort of” coming from Cromwell Street at around 11:30pm. He initially thought nothing of it but then began to hear male voices screaming, which increased in volume. Around fifteen seconds after he first heard screaming, Mr Mariani approached the window and saw two cars parked in Cromwell Street. One was grey with the rear door of the passenger side open. The other car was in the middle of the road but parked up against the door of the grey car. Mr Mariani’s view was slightly obstructed by a tree and he was not wearing his glasses. However, he said he could still see large objects such as cars and people. The screaming lasted for a minute or less, and it sounded like the people screaming were moving towards Marion Street. Mr Mariani backed away from the window. He then heard the sound of people running from Marion Street back to Cromwell Street, and the sound of a car accelerating and skidding. Mr Mariani returned to the window about a minute later where he could still see the grey car but not the second car.

15. Nada Bayley was walking back to her mother’s house from the Norton Hotel at around 11pm. She was “tipsy” after having a couple of beers. When she approached the intersection of Cromwell and Marion Streets she saw three men on Cromwell Street, moving towards Norton Street. Two of the men were kicking the third man on his legs very hard. She saw each man kick the victim once or twice. The victim was trying to cover his body and called out “help, help me”. Ms Bayley told the two men to leave him alone. The victim ran towards her but tripped over the gutter and fell to the ground. Ms Bayley screamed at the men to leave the victim alone and tried to use her body to shield the victim but she was kicked off into the gutter. She said it felt like both men kicked her simultaneously. From the gutter Ms Bayley saw one of the men forcefully hit the victim in the head with the claw end of a hammer approximately four times. She said it was “like bashing a piece of steak”. The victim moved his hands up once to try and defend himself and then stopped moving.

13. Ms Bayley recalled that the man with the hammer was wearing a hooded black jumper with the hood up and white sneakers. He had short black curly hair with dark tanned skin, was of slim build, and appeared to be of Asian or Caucasian descent. She guessed he was in his late 40s or 50s. She said the other man was standing about a metre away from the victim and was holding a black bar shaped like a pole but did not participate further in the attack. In cross-examination she conceded that it may have been a crowbar, but she was unsure because it was dark. She described the second man as being of a bigger build to the man with the hammer and estimated he was in his 20s. The men then ran away towards Cromwell Street. The victim was bleeding from a hole on the side of his face, and Ms Bayley called 000 for an ambulance.

14. Erin Pelquest-Hunt was at her boyfriend Daniel Carlin’s house in Marion Street, facing Cromwell Street. Ms Pelquest-Hunt was in bed on the third floor when she heard what sounded like a physical fight outside a little after 11pm. She heard male voices which sounded angry and a woman’s voice which sounded scared. Ms Pelquest-Hunt went to the balcony and looked up Marion Street where she saw a man lying on the ground with two men standing over him, one on each side, kicking him quite forcefully in the torso. The two men were both wearing dark, baggy tracksuits and one of them was wearing a black cap. The man in the cap kicked the victim around five or six times to the upper torso and the other man gave around three or four kicks to the victim’s lower chest. A woman was screaming “stop, leave him alone, I’ll call the police” and tried to stand between the man with the cap and the victim.

15. Ms Pelquest-Hunt saw the man with the cap taking big swings over his head and forcefully bashing the victim in the chest/torso area with a small axe or hatchet four or five times. The man without a cap was standing back a bit but was taking a kick every now and then, connecting with the victim’s middle/lower chest. The woman standing nearby took out her ‘phone and said, “I’m calling the police right now”. The man with the cap then gave the victim one last bash to his shoulders/upper torso and then the men ran across the road towards a car in Cromwell Street. As they were running away Ms Pelquest-Hunt noticed that the second man was holding an object which looked like a large kitchen knife with a silver blade around 20-25 centimetres long. In cross-examination she conceded it might have been a bar but said the blade looked like a kitchen knife. She then saw the two men get in a car and drive away down Cromwell Street.

16. Daniel Carlin was at home with his girlfriend, Ms Pelquest-Hunt. Mr Carlin was asleep in bed when he awoke to loud noises in the street. It sounded like a person was shouting in short bursts in a language that he believed at the time was Arabic. Mr Carlin got up, closed the window and walked to the balcony doors to close them. He could still hear someone shouting quite aggressively from up the hill. Ms Pelquest-Hunt woke up and joined Mr Carlin at the balcony doors, and the two went outside to see what was causing the commotion. Ms Pelquest-Hunt was standing in front of Mr Carlin, somewhat obstructing his view. However, he could still see a man in a white cap in the middle of Marion Street walking towards Cromwell Street towards a dark sedan parked away from the kerb. Mr Carlin then heard a woman scream “what are you doing to him” but could not see her. He also heard a man yelling from the units across on Cromwell Street “what the fuck are you doing”. He heard what he described as “a thud, like a crunch, a sickening crunch, like somebody got punched” coming from the same direction as the yelling. Mr Carlin then saw another person running down the hill and get into the car on the passenger side. The car drove off at a normal pace and Mr Carlin and Ms Pelquest-Hunt saw a man lying on the concrete with two women at the scene, one of whom said, “a guy has been bashed”.

17. Janine Cahill was looking for her car in Marion Street a bit before midnight after seeing a movie. As she was walking down Marion Street, she saw a woman further ahead and began to hear several voices yelling from Cromwell Street, which were becoming increasingly loud. She saw two people run across the road from Cromwell Street into Marion Street and then heard a thump but couldn’t see what caused the noise because there was a tree obstructing her view. She walked closer and saw a man about 20 metres away kicking what she assumed was a person on the ground. Ms Cahill saw the man give three or four kicks to the victim. She called 000 and yelled something like “stop, I’ve phoned the police right now”.

18. She then saw the man raise a weapon above his head which was the size of a hammer but had a pointed end. The man hit the victim hard with the weapon, striking the trunk of his body at least twice. A woman was saying “stop stop, stop hitting, he’s hitting him with a hammer”. Ms Cahill saw a second man who was holding a bar, which was about 40cm long. She saw him lift the bar to strike the victim’s head at least once, although she did not see the blow connect. The man with the hammer-like weapon proceeded to hit the victim one final time before the two men ran away towards Cromwell Street. The victim had “blood all down his front”.

19. Ms Cahill described the first man with the hammer-like weapon as being of quite a large build and reasonably tall. She said he was wearing a hoodie, had black hair and light brown skin. She thought he was in his 20s but said it was dark and that she could not identify him. Ms Cahill described the second man as being shorter and skinnier.

20. Stephen McIntyre lived in a third-floor unit on Marion Street with a balcony overlooking Marion Street. He went to bed at about 11:50pm and was awoken by a noise which sounded like a person groaning in pain. Mr McIntyre stood on his bed to look out the window. He heard a woman’s voice shouting things like “stop it, stop it, you’re going to kill him”. He saw three men and a woman. The first man was lying on his side on the ground near the rear of a white car. It looked like he was moving his right arm back and forth to defend himself. Mr McIntyre could see two men who looked like they were attacking the man on the ground. The first man was moving forwards and backwards towards the victim and kicked the victim quite hard a couple of times. He saw the first man bend down towards the victim once or twice. It looked like he was trying to grab the victim although, in cross-examination, the witness agreed he may have been doing something else. The second man was standing near the corner of the dark car, just off the footpath. It looked like he was striking the victim in the chest area a couple of times with an object which had a metallic shine.

21. Mr McIntyre went to go outside to help but was stopped by his wife. When he returned to his bed to look out the window, he saw the man with the weapon go in for about three more strikes, more towards the victim’s head and one of which was particularly hard. During the attack Mr McIntyre saw the woman try to protect the victim with her body. She was pushed away and when she tried to intervene again, she was kicked by the man with the weapon and fell over. After the final strike, both men ran off in different directions. The man with the weapon ran towards Norton Street and the other man ran across Marion Street and down towards Cromwell Street. Mr McIntyre then went down to the victim on the street, who had blood all over his face and down the front of his shirt.

22. Mr McIntyre described the first man as being of fairly solid build, with dark wavy hair and brown skin, not that tall and wearing a black t-shirt and black shorts. He described the second man with the weapon as being solid with a pot belly and as wearing a black t-shirt with something white on his head like a bandana.

23. Clare Lesley Bales is Mr McIntyre’s wife. Ms Bales was asleep in bed when she and her husband were awoken by the sound of a woman screaming something like “leave him alone”. Ms Bales and Mr McIntyre jumped up on the bed and looked out into the street where they saw a man lying on the footpath, a woman standing over him and two men lunging towards him. One of the men was on the sidewalk and the other was on the roadway between two parked cars. The woman was standing over the victim and was screaming and trying to get the two men off him. Ms Bales’ husband called out something like “hey, what are you doing” and the men briefly stopped what they were doing before starting again. The men were kicking at the woman trying to get to the victim and one of them kicked her in the legs. Ms Bales then saw the man on the pavement hit the victim once on the head with an implement that was about a foot long, which made a loud “dong” sound. Ms Bales described both men as wearing dark clothes and, in her statement to police, said one of them was wearing a navy and light blue baseball cap. She thought they were both of average build, average height and very nimble.

Admissions and post offence conduct

27. The Prosecutor adduced evidence of admissions made by the applicant and relied on certain conduct to establish that he was acting with a consciousness of guilt. The conduct consisted of attempting to set up a false alibi, telling a material lie to police, and taking flight overseas shortly after the murder.

Direct admissions

28. The applicant made admissions to a friend, Victor Lau and allegedly to a fellow inmate, Esau Maiava.

29. On 22 February 2010, the day after the incident, the applicant called Mr Lau at around 7:30am and asked him to help set up a (false) alibi. Mr Lau asked what had happened and the applicant asked rhetorically, “if someone was messing with your Mum, what would you do?”. The applicant then said, “some guy was messing with his Mum and they chased him and crashed into his car; they got out and he had a hammer in the car and he said he used the hammer to smash him on his forehead and his Dad finished him off with a couple more stabs.” The applicant went on to say, “you don’t have to worry now, he’s gone to the grave now”.

30. The applicant and Mr Lau exchanged further ‘phone calls on the afternoon of 22 February 2010, during which the applicant made further admissions. These included that the applicant and his father had pushed a woman who had tried to intervene out of the way, and that his father had stabbed the deceased in the back.

31. Mr Maiava was a prison informer who the applicant met in the yard at Long Bay gaol in July 2010. Mr Maiava asked about the applicant’s charges and the applicant said he was charged with murder. Mr Maiava asked about the murder and there were several conversations during the week that followed. The applicant told Mr Maiava that his mother was having an affair with another man and that he and his father planned to kill the man. The plan was to kidnap the man and take him to Woolloomooloo where they were going to kill him. They planned to tie him up and put him in the boot.

32. A couple of weeks before the killing the applicant rang his father asking when they were going to commit the murder but his father told him to wait. According to Mr Maiava’s evidence, the applicant said he kept calling his father and his father told him they had to wait until they knew what time the man gets home.

33. The applicant allegedly said that he and his father went to see the man and when they arrived at his home the man spotted them and tried to run away. The applicant’s father drove the car into the man’s driveway and hit the man. They both got out of the car and chased the man. The applicant hit him hard with a hammer, quite a few times, while his father stabbed the man twice. After the killing the applicant’s father dropped him home and went out to get rid of the knife.

False alibi

34. The prosecution relied on the applicant’s attempt to have Mr Lau support a false alibi.

35. During the telephone conversation on the morning of 22 February 2010, the applicant asked Mr Lau to tell police that he had seen the applicant at Burwood at 9pm the day before. This was a lie, and when Mr Lau refused to comply, the applicant became angry. Mr Lau ended the call by telling the applicant he had to go to work but would speak to him soon.

36. Late that afternoon Mr Lau and the applicant had several ‘phone calls. The applicant persisted with his demand that Mr Lau lie for him, and started swearing angrily, saying things like “what kind of fucken friend are you? Can’t you fucken do this for me”. Mr Lau hung up on the applicant several times because he had already made it clear that he could not help. However, the applicant kept calling him back.

37. Mr Maiava gave evidence that the applicant told him about the attempt to get Mr Lau to provide a false alibi and said that his father had instructed him to do this.

38. Mr Maiava claimed that the applicant asked him if anyone could “get rid of someone not to come to court”. Mr Maiava asked the applicant if he wanted him to kill the person and the applicant laughed in response. He claimed the applicant offered to pay $10,000 for the job. This allegation was the basis for count 3 on the indictment (solicit to murder) in relation to which the jury found Mr Iskandar not guilty.

Lies

39. On the night of 22 February 2010 police executed a search warrant at the applicant’s home. The applicant’s father told police that the applicant had been asleep at the time of the killing. Detective Webster then asked the applicant directly whether he had been home, and the applicant said, “she called me when I was sleeping”. The applicant agreed in cross-examination that this was a lie.

Flight

40. On 24 February 2010, three days after the killing and shortly after the applicant’s father was arrested, the applicant attempted to take flight to Jakarta. At approximately 5:15am the applicant approached the Singapore Airlines counter at the Sydney international airport, seeking to purchase a one-way ticket to Jakarta, departing immediately. There was a flight leaving Sydney that morning via Singapore, however the applicant was informed that he would need to purchase a return ticket or an onward ticket from Jakarta. The applicant asked for the longest possible return time.

41. When asked for his contact details the applicant initially responded that he could not provide any, but subsequently wrote down a ‘phone number and email address. Ms Horsfall, who was serving the applicant at the counter, later tried to telephone the applicant on the mobile number that he had provided but it did not work. She also noticed him using the public telephones, rather than his own mobile, at around 6:20am.

42. The applicant paid for the ticket in cash and, according to Ms Horsfall, appeared nervous, failing to meet her eye. The applicant asked Ms Horsfall if he was able to get a refund if he did not use the return section of the ticket. The applicant had only carry-on luggage, which was over the size limit. The applicant was advised he would need to check the bag in however the applicant said he did not want to as he was afraid somebody would put something in his bag. The applicant went and got his bag sealed and wrapped by Qantas and then had his bag checked to Jakarta. The applicant boarded the ‘plane and was arrested upon his arrival in Singapore.

Forensic evidence

43. A bloodstained hammer was located on the roadway in Cromwell Street near the deceased’s silver Volvo. The hammer was approximately 33cm in length with a varnished wooden handle 3cm in width. There were rust-like substances and red stains on the head of the hammer. No fingerprints were found, but the hammer was tested for the possible presence of blood, and three areas returned a positive result, indicating that blood may be present. Swabs were taken from these areas as well as from the hammer handle and head. A swab from the hammer head stain returned a positive reading for blood, consistent with the DNA profile of the deceased. A mixed DNA profile, the major contributor to which was the applicant’s father, was found on the bottom half of the handle. A swab taken from the right side of the top half of the handle contained a mixture of DNA originating from two people. The deceased and the applicant could not be excluded as possible contributors. A swab from the left side of the top half of the handle had a mixed DNA profile, the major contributor of which was consistent with the applicant’s DNA profile.

44. Surrounding the deceased’s silver Volvo were areas of red/brown stains on the bitumen as well as along the road and footpath between Cromwell and Marion Streets. The vehicle was recovered and forensically examined by crime scene officers. A palm print located on the outside of the rear driver’s side window was identified as the applicant’s left palm print. A further palm print and fingerprint were found on the outside of the rear driver’s side window but could not be identified. A fingerprint matching the applicant’s father’s left thumb print was found on the outside of the quarter window on the rear side of the Volvo.

Autopsy findings

45. Dr Wills, the forensic pathologist who performed the post-mortem examination, gave evidence that the direct cause of death was blood loss from a single stab wound to the chest. The wound penetrated into the chest cavity, cutting through bone, cartilage and the vena cava, the main vein that returns blood to the heart.

46. Dr Wills also observed a combination of blunt and sharp force injuries. On external examination Dr Wills identified four stab wounds on the upper right chest (the injury causing death), on the lower right flank, on the upper back, and on the mid back which partially transected the spinal cord. There were five lacerations on the victim’s face and head, including a laceration around the left eye socket with complex fracturing. That injury was “reasonably characteristic of the claw end of a hammer”. Dr Wills noted a bruise with an abrasion over the top on the left side of the neck, abrasions on the backs of both forearms, and abrasions with underlying bruises on the top and back of the left shoulder, on the inner aspect of the left forearm and on the outer back aspect of the left upper arm. There were also intradermal bruises, likely caused by fabric, on the right shoulder and lower part of the ribcage.

47. Dr Rodriguez, a neuropathologist, identified bruising and bleeding within the brain, a cerebrospinal injury and a thoracic spinal cord injury.

Some other items of circumstantial evidence

48. The prosecution relied on a number of other pieces of circumstantial evidence including the following.

49. On 14 February 2010 the applicant and his father attended a Budget rent-a-car outlet in Kings Cross. The Budget employee, Robert Kropf, gave evidence and the rental agreement was tendered as Ex NNN. Mr Kropf said Hazairin Iskandar told him the man he was with was his son and that he would not drive the rental car because he was too young. The applicant gave evidence that his father rented the car because members of his extended family were coming to visit and he wanted to show them some sights around Sydney. The applicant denied hearing his father say that he would not be the second driver because he was too young and said he was under the impression that anyone could drive the rented car but that his father would be responsible for any damage.

50. Police examined the applicant’s telephone and found (amongst other things) a photograph taken at around 5:30pm on 15 February 2010. The photograph depicted the applicant’s father sitting in the driver’s seat of a car with his hat turned backwards, looking at the back windscreen. The applicant conceded that at the time the photograph was taken, he and his father were in the vicinity of the Malaysian Consulate where his mother and the deceased worked. The applicant’s explanation for the photograph was that his father was teaching him to reverse park and he took a photograph of his father to see the position of his body when executing the manoeuvre.

48. In conducting a search of the rented vehicle, police found two pieces of A4 paper folded lengthwise with two pegs on each piece. These were found on the front passenger seat. Mr Kropf, who worked at the Budget outlet, gave evidence to the effect that these items would not have been in the car when it was rented. The suggestion was that the pieces of A4 paper may have been used to obscure the number plates of the car.

49. The prosecution also relied on communications between the applicant and his father in the lead up to the killing. The applicant explained these in his evidence. The applicant found four missed calls with no voice message from his father on 18 and 19 February 2010. On 20 February at around 4:30pm Hazairin called again and said his taxi had broken down in Arncliffe Park and he needed help to fix or move the taxi. On 21 February 2010 Hazairin called the applicant at around 8pm and asked what Nita was doing and whether the car was still in the driveway. The applicant told his father that his mother had locked the door and the car was still in the driveway. Hazairin suggested they should have a driving lesson and eat at a restaurant afterwards and said he would be home at around 9:00pm. When he was late, the applicant tried to telephone his father and sent him a text message.

50. Investigators also gave evidence of searches conducted at the Iskandar residence, in and around the deceased’s home in Marion Street Leichhardt and around the streets of Leichhardt.

51. At about 7:00pm on 23 February 2010 police executed a search warrant at the Iskandar residence. Detective Ogilvy searched a black backpack that was found in an alcove area of the house and found a newspaper with red staining, some thin rope with cylindrical objects attached to the end of it, a piece of yellow cloth described as “a strap type thing” and other miscellaneous items like a bottle. Photographs of those items (Ex KKK) were shown to the applicant by the Prosecutor in cross-examination. The applicant conceded that the backpack belonged to him and gave evidence that “the strap type thing” was sports tape that he used when boxing at the local PCYC and that the rope between two cylinders was exercise equipment. He denied that he had planned to use those items to kidnap the deceased and tie him up.

The applicant’s case at trial

55. Mr Iskandar gave evidence at the trial. He was 19 years old at the time of the killing. He had no siblings and described his parents’ relationship as “unstable”. He said he was not aware that his mother was having an affair until after the killing but gave evidence that his father “constantly called my mother a whore and a slut” and that “my grandmother is crying in the grave because my mother is a whore”. He did not ask either of his parents why his father said these things.

56. He agreed that he went with his father to Budget in Kings Cross on approximately 15 February 2010 where his father rented a car, although the receipt revealed this was actually on 14 February 2010. He said he was aware of the photographs on his ‘phone that were taken in the vicinity of the Malaysian Consulate on around 13 February 2010. Again, the date appeared to be inaccurate and the download from the telephone suggested the picture was taken on 15 February 2010. The applicant said that the photograph was taken to help him with reverse parking. He gave evidence that his father was having some mechanical problems with his taxi at around that time, and that he had somehow helped his father do a car shuffle with the rental car and the taxi which was parked near a park at Arncliffe.

57. Mr Iskandar described his movements on 21 February 2010. He was at home in the morning and went to “play in the park” at around 9 or 10 o’clock. He got home at around midday and took a nap. He helped his mother to unpack some groceries and watched television with her until about 7:00pm. His father arrived home at around 10:00pm and they decided to go for a driving lesson in the rental car. He followed his father’s directions to Leichhardt and they arrived at Marion Street at about 11:00pm. They had a meal at an Indian restaurant. After the meal, they got into the car with his father driving. His father was driving “around in circles” for a while and then crashed into Mr Saemin’s Volvo motor car:

“A: My father parked on Cromwell Street.

Q: Right?

A: Several cars would pass and on that time he saw the Volvo wagon and he parked. There are two cars in front. There were two cars in front of where my dad parked and the Volvo was in front of the two cars and my dad as soon as he saw the Volvo he turned on the car and he smashed into the back lights, the rear lights.”

58. He knew that “Shah” drove a Volvo and he asked his father what he was doing but his father stopped the car and jumped out. He then described the confrontation which followed:

“Q. What happened from the point in time that your dad got out of the car, what did you see?

A. My father - Shah, I saw Shah open the - open his front passenger seat. He was still in the front and he looked towards the accident and he opened the back passenger door. He looked at it and looked at my dad and when he looked at my dad, my dad pointed the finger at his face and I said, ‘I told you already don’t walk with my wife again’.

Q. Don’t what?

A. ‘Don’t walk with my wife again’. He said this in Malay, in Indonesian.

Q. Your dad said to Shah, ‘I told you before don’t walk with my wife again’?

A. Yes.

Q. What happened after that?

A. Shah looked at us and he asked my father, ‘Why did you crash into my car’ and he, Shah called my father a faggot. He called him gay and he said, ‘If you crash into that car again, if you do that again, I’m going to kill you, you can’t even look after your wife’.

Q. These words that were spoken, are they in a loud voice or?

A. Very loud.

Q. When your father spoke to Shah was he shouting?

A. Yes.

Q. When Shah spoke to your father was he shouting?

A. Yes.

Q. What happened then?

A. Shah immediately attacked my father. He kicked out at his knee and he grabbed my father, threw him to the ground and my dad fell flat on his back.

Q. What happened then?

A. When he grabbed my father simultaneously I went outside the - I grabbed -I was in the front passenger seat. I went to the driver’s door, opened the door and I went in front of my father to try to step him attacking and assaulting my father.

Q. You couldn’t get out of the passenger door because your car was right up against Shah’s car, is that right?

A. Yeah, I couldn’t.

Q. You got out of the driver’s side door?

A. Yes.

Q. What did you do, what happened?

A. Shah began immediately attacking me.

Q. In what way?

A. He throw around five, six punches at me.

Q. At the time that you got out of the car what was happening between Shah and your father?

A. Excuse me can you say again?

Q. You got out of the car for a reason?

A. Yeah.

Q. Something was happening between Shah and your father, is that right?

A. Yeah.

Q. What was going on between the two of them that you led to you getting out of the car?

A. He threw my father to the ground, yeah.

Q. You then got out of the car?

A. Yes.

Q. You approached Shah, is that right?

A. Yes.

Q. Did you tell us that Shah started attacking you?

A. That’s right.

Q. What did you say he did?

A. He threw five, six punches to me.

Q. Did he hit you at all with any of these punches?

A. One of them, he punched me in the head and my head went backwards.

Q. What happened then?

A. I tried to get closer to him and he grabbed me and we were grappling and he spun around twice.

Q. During this point in time did you notice what your father was doing?

A. No.

Q. While this is going on, this melee, are you in the vicinity of the Volvo motor vehicle? Are you close to the Volvo or the rental car, were you in that area?

A. Right next to it.

Q. Right next to it. After Shah tried to punch you, what happened then?

A. We began - he tried to grab me and I’m grabbing him and we spun around twice.

Q. Then what happened?

A. He let go. We managed to push each other off and I’m trying to look for my bag and my dad handed me a hammer and he said, ‘Hit that bastard’.

Q. What happened then?

A. Then he, Shah attacked me. He started attacking me with punches and I stepped to the side and hit him across the forehead.

Q. Do you remember precisely whereabouts on the forehead you hit him?

A. In between the eyebrows, the start, the top of the hair line.

Q. Are you able to on your own head, are you able to point to the area?

A. (Witness indicated).

Q. You’re pointing to between your eyebrows, but about an inch higher?

A. There (witness indicated).

Q. Up near the hairline?

A. Yeah.

HIS HONOUR

Q. Can you just turn and face the jury and show them?

A. (Witness complied.)

O’SULLIVAN

Q. How many times did you hit him?

A. Once.

Q. What happened then?

A. He was stunned and he stood back and leaned towards the Volvo. My dad said, ‘Hit him again’ but I didn’t and I chucked the hammer on the ground.

Q. What happened after that?

A. Shah circled around me. My dad was getting something out of the car from what I know now was the tool box and he saw my dad, my dad’s arm was – my dad was trying to get something out on the back seat and he kicked at the door. And my dad’s arm jammed into the car and my father’s arm as a result became dislocated.

Q. What happened after that?

A. My father immediately chased the man, chased Shah towards near the flats.

Q. Up until this point in time before Shah went towards the flats you hit him with the hammer once?

A. Yeah.

Q. What about your father, had you noticed your father with any weapons?

A. My father immediately ran to chase Shah because my father kicked – Shah kicked the door and the door jammed into my father and he ran. Then I didn’t see whatever my father was holding at that time.

Q. You saw Shah run?

A. Yes.

Q. And I think you said towards the flats?

A. Yes.

Q. Which flats are we talking about, flats across the road?

A. Just before Marion Street in the units.

Q. Are they flats that are on the corner of Cromwell and Marion or?

A. On the corner.

Q. Shah ran towards the flats, what happened then?

A. Another confrontation took place between my father and him.

Q. I just stop you there. You have indicated that Shah ran towards the flats, did your father follow him?

A. Yeah, he chased him.

Q. What about you?

A. I just stood there. I was just watching where the accident took place, I just watched my father chase Shah.”

59. The transcript records that the jury sent a question about the hammer and, after the short morning adjournment, the applicant gave evidence that he had seen the hammer before in the garage at home. He said he hit the victim with “the side part of the steel area of the hammer”.

60. The applicant said his father and Shah were “fighting” on the footpath opposite where they had the collision and that Shah ran across the road with his father in pursuit. He saw his father catch the victim and collide with him whereupon Shah yelled and laid flat on his back. He then “saw the knife in [his] father’s hand and he stabbed him in the chest”. He could not say how many times his father stabbed the victim. He said his father “put the knife on Shah’s stomach and he move around to Shah’s head and he used that hammer”. At that stage, the applicant was holding a crowbar although he did not use it. He saw his father hitting the victim in the head with the hammer. His father then ran back to the car and the pair drove away from the scene.

61. The applicant was asked about his intention when he struck Mr Saemin with the hammer. He said that he hit the victim once and did so because the victim was attacking him and “I just wanted him to stop”. He said there was no plan to attack the victim that night.

62. He agreed that he asked Victor Lau to provide him with a (false) alibi and gave Mr Lau “a brief description of what happened”. He also agreed that he went to the airport and intended to go overseas. He said he did that because his father wanted him “to go to Indonesia”. As to the conversation with the prison informer, Esau Maiava, the applicant said:

“Q. Can you tell us what that conversation was?

A. He’s asking me every minute what my allegations were. I only told him three things. My allegations are that I tried to make a false alibi, the hammer was found at the scene and my dad killed him with a knife. That’s all I said.

Q. Is that it? Anything else? Is that the entirety of the conversation from what you said to him?

A. Yes.

Q. Did Mr Maiava say anything to you, this is the first conversation?

A. He told me that, ‘Is that true, you tried to make a false alibi? Do you have any friends to stop this witness coming’, he’s asked me. I said, ‘I don’t need that.’ And he said, ‘If you give me $1,000 I can follow him with a white van’ and he said he can put a chemical injection in the witness’ body so they can’t speak in the witness stand.”

63. He said he then spoke with another inmate, Aristos Dionys, and told him that Mr Maiava had offered to kill witnesses but that he “didn’t accept it”. Mr Dionys advised the applicant “Don’t worry about it, just ignore him.”

64. The foregoing account comprised the substance of Mr Iskandar’s evidence in chief. He was cross-examined briefly by counsel then appearing for his mother and at length by the Prosecutor.

65. In short, the applicant’s case was that he was not a party to any joint criminal enterprise to kill or seriously injure Mr Saemin and that anything he did was done in self-defence or in defence of his father. While he admitted at the trial that he became involved in the fracas and that he struck the deceased with the hammer, his conduct was responsive to the events as they unfolded. He denied that he was involved in any planning of the attack or that he knew his father was armed with a knife.

66. Aristos Dionys gave evidence in the applicant’s case. His account was generally consistent with the account provided by the applicant in relation to the conversation with Mr Maiava.

The jury’s findings and the verdicts

67. In his written submissions to the Court, the applicant conceded at [23] that “the jury clearly rejected the appellant’s evidence as to count 1”.

68. Count 3 was an allegation of soliciting Esau Maiava to murder Victor Lau. The jury found the applicant not guilty of that count. This showed the jury had – at least – a reasonable doubt as to Mr Maiava’s evidence. The trial Judge provided the jury with a firm warning about the potential unreliability of that evidence.

69. The jury reached a verdict of guilty on count 2 which was an allegation that Nita Iskandar was an accessory after the fact to the murder committed by the applicant. This verdict, which is recorded as a majority verdict on the trial indictment, adds little to the arguments of the parties to the present appeal.

Ground 1: The trial miscarried because the Crown Prosecutor addressed the jury and cross-examined in an improper manner.

The nub of the complaint under ground 1

70. Under the first ground of appeal, the applicant submitted that the Prosecutor at trial exceeded the proper bounds of established ethical and prosecutorial conduct both in her cross-examination of the applicant and in addressing the jury. It was submitted that the Prosecutor’s conduct was improper and caused a miscarriage of justice because it amounted to “religious vilification” and “racial discrimination”. The basis of these complaints was the repeated use of the expression “honour killing” to describe the applicant’s, and his father’s, motive in attacking the man they believed was having an affair with Nita Iskandar.

The opening statement and evidence of the prosecution witnesses

71. The Prosecutor’s first words to the jury in her opening address were:

“Members of the jury, this trial is about an honour killing.”

72. A short time later, the Prosecutor told the jury:

“Hazairin Iskandar became aware of his wife’s extramarital affair, and Andrew too became aware of his mother’s infidelity. The Crown case is that in order to protect the honour of their family they decided to kill Mr Saemin, and they carefully planned an honour killing.”

73. The Prosecutor referred to the evidence she anticipated would be given by Esau Maiava which was that the applicant told him that he was “proud of what he had done, defending his family’s honour.”

74. During the evidence of some of the prosecution witnesses, there was reference to the family shame and dishonour that may arise in the Indonesian and Malaysian community from rumours of marital infidelity. By way of example:

• Bay Abdul Malik gave evidence that, “from a cultural point of view, in the Indonesian community”, rumours of an affair between a married woman and another man would bring “big shame” on the family and affect its honour. It was put to Mr Malik in cross-examination that the shame and dishonour would fall on Hazairin (as the direct victim of the infidelity), rather than on his son (Andrew Iskandar).

• Immadudin was asked whether “from your cultural perspective” a wife having an extramarital affair would “bring shame on the family”, including “the son and the father” and he said “absolutely”. As to the couple praying together in the Consulate’s prayer room, he said this was “totally impossible … from [a] religious point of view … not only unusual, it’s a no”. Counsel for the applicant cross-examined Immadudin on the difference between embarrassment and shame and it was suggested that, while the son may feel embarrassed, his mother’s conduct would not bring shame on him in the eyes of the Indonesian and Malaysian communities. The witness partially agreed with this proposition but said such a situation would cause him (that is, the witness) embarrassment and depression even though not “everyone must feel the same, but I don’t know, but for me I would feel that way.” He was also cross-examined about the use of the prayer room by the couple and said, contrary to the propositions being advanced by counsel, that the practice was, from a religious standpoint, “unacceptable”.

• The witness Mr Maiava did not come up to proof in relation to the issue raised by the Prosecutor in the opening statement. That is, he did not give evidence that the applicant admitted he acted in defence of his family’s honour. He was asked a direct question – “Did he mention anything about his family and the way he felt?” – and replied “no.” He did give evidence that the applicant told him he wanted “to get rid of” the deceased because his Mum was having an affair and he (the applicant) “couldn’t handle it”.

• Mr Lau, who gave evidence of the attempt by the applicant to set up a false alibi and the admissions he made about the killing, said the applicant asked him, “if someone is messing with your Mum, what would you do?”. This evidence, which went to the applicant’s motive, was not directly challenged and was not based on any supposed cultural, racial or religious norm or stereotype.

75. The ground of appeal did not place particular emphasis on the admission of this evidence or on the opening address. Rather, the complaint focused on the cross-examination of the applicant and the Prosecutor’s closing address.

The cross-examination of the applicant

76. The Prosecutor cross-examined the applicant for around two days. It was a penetrating and skilful interrogation. It culminated in a series of questions about the applicant’s religious beliefs, whether the fact that his mother was having an affair would “bring shame” on the family, and if the applicant thought he had done “the right thing” by killing the deceased. In view of its prominence in the applicant’s submissions, the whole passage should be considered:

“Q. We have heard - you tell us that your father goes to the mosque. Do you share his religious beliefs?

A. Who, my father?

Q. Yes, do you have a religious belief yourself?

A. Yes.

Q. What is your religion?

A. Islam.

Q. Islam. There was some prayers on the wall in your bedroom, is that right, at home?

A. Yes.

Q. And I think you had - did you have a prayer book when you were arrested in Singapore as well?

A. Yes.

Q. So an Islamic religious text in any event?

A. Yes.

CROWN PROSECUTOR:

Q. So you are a practising Muslim?

A. Not really.

Q. But you believe in Islamic teachings?

A. Yes.

Q. What are the Islamic teachings about adultery?

A. The same teachings; everyone has to listen to the laws of the land and you can’t forcing upon them your beliefs.

Q. Sorry?

A. Adultery is shameful.

Q. Shameful, isn’t, adultery? In fact, Islamic teachings extend a bit, don’t they, that if someone is committing adultery, that people should not go near them -they should be avoided. Do you agree with that?

A. That is Islamic teaching, that they should be avoided?

Q. Yes, that people who are committing adultery should be shunned?

A. I don’t know about that. I’m not a scholar, I just learn a little bit.

Q. Islamically, adultery brings great shame on both the person committing adultery and the entire family, you agree with that, don’t you?

A. I wouldn’t know about that.

Q. It also brings great shame upon the whole community, do you agree with that?

A. Upon the whole community?

Q. Yes?

A. I wouldn’t know about that.

Q. Are you familiar with Chapter 24, I believe, of the Koran which prohibits adultery?

A. I know Islam prohibits adultery.

Q. It prohibits it in very strong terms, doesn’t it?

A. I guess so.

Q. It is a big deal if someone is committing adultery from an Islamic perspective, do you agree with that?

A. Yes.

Q. That is your religious belief, isn’t it?

A. Yes.

Q. So it was a very shameful thing for you, with your religious beliefs, that your mother was having an affair and committing adultery, do you agree with that?

A. No, because they were virtually divorced and they were talking about adultery all the time.

Q. Your mother was married to your father, do you agree with that?

A. Yes.

Q. She was committing adultery?

A. Yes.

Q. That was a shameful thing, from an Islamic point of view, wasn’t it?

A. Yes.

Q. A terribly, terribly shameful thing?

A. Yes.

Q. And you felt that shame, Mr Iskandar, didn’t you? Tell the truth about this?

A. No, I didn’t.

Q. And Islamic teaching is that adultery can destroy a family, isn’t it?

A. I never heard of that.

Q. What do you, from your Islamic point of view, think about a woman who has an affair and is committing adultery?

A. What is my opinion?

Q. What is, from your Islamic point of view, your thought about a woman who is having and affair and is committing adultery?

A. What she is doing is wrong.

Q. What do you think about a man who is committing an adulterous act?

A. He shouldn’t do it.

Q. The deceased was committing adultery with your mother, wasn’t he?

A. Now I know he was.

Q. And what you participated in, Mr Iskandar, was an honour killing?

A. It does not decrease or increase the honour, or up or down, if my mother had one affair or 10 affairs, or a hundred marriages, it still wouldn’t affect my honour.

Q. I suggest you planned this murder - you pre-planned it?

A. No.

Q. You brutally attacked the deceased with your father?

A. No.

Q. And you left him to die, bleeding in the street?

A. No, I was just watching what my father was doing.

Q. Do you think he did the wrong thing by having an affair with your mother?

A. Yes.

Q. Was it the right thing for you [and] your father to kill him?

A. No.

Q. You couldn’t handle the fact that your mother was having an affair, could you, Mr Iskandar?

A. It doesn’t matter to me if my mother had an affair.

Q. Do you regret that he died?

A. I wish he was still alive.

Q. You, in fact, were proud of what you had done?

A. No, I’m not. I told you, I was just watching. I didn’t do anything.

Q. I suggest you believe you did the right thing by killing him, what do you say about that?

A. I didn’t kill him.”

The closing address

77. In her closing address to the jury, the Prosecutor commenced with the words attributed to the applicant by Mr Lau (to the effect of what would you do if somebody is messing around with your mother?) and stressed the inconsistency between those words and the proposition that the applicant was not aware of the affair until after the killing. This led into the theme of the father and son acting together to commit an “honour killing”:

“It is not in dispute that the two people who were there were Andrew Iskandar and his father Hazairin. It is in dispute that Andrew Iskandar participated jointly with his father in the murder. The Crown case is that they did this crime together and that this was an honour killing because of his mother’s affair.

The Crown case is the two men callously laid in wait for Mr Saemin to come home from work. It was dark. He was vulnerable because he was on his own. They were both armed and they set on him together, leaving him to die in the street after their attack.

Shame had been brought on the family by his mother’s affair and Mr Saemin paid the ultimate price for that with his life at the hands of Andrew Iskandar and his father. He laid dying from blood loss in the arms of a stranger on the street and, in the words of Nada Bayley, who saw it at close hand, he had been beaten like a piece of meat.”

78. The subject was left alone for the remainder of the address until, towards the end of her submissions, in the context of undermining the applicant’s credibility as a witness, the Prosecutor submitted:

“Also completely lacking in credibility on the Crown submission are the accused’s responses about not knowing about his mother’s affair and his attitude towards her adultery. He claimed that it didn’t matter to him whether his mother had one or 10 affairs and that if she had it brought no shame upon him. Ultimately though he did give some evidence that it was quite a shameful thing from his religious perspective. The Crown says that his evidence about his attitude is an attempt to distance himself from the clear motive to commit the crime as he clearly expressed it to Victor Lau. That’s his most contemporaneous assertion about what was in his mind at the time of this crime and his motive is clearly expressed there. That’s when he says: ‘Someone’s messing with your Mum would you take them out’ and there’s nothing ambiguous about that statement whatsoever.

He knew that people were talking about his mother. There was a rumour for a significant period of time about this affair and he knew or we know from other witnesses in the community what a terribly shameful thing this was. He told Mr Maiava that he couldn’t handle it and that is what explains this crime. He was motivated by shame and anger and this was an honour killing.”

79. The final reference to the killing being motivated by “honour” was in the Prosecutor’s overview of the evidence that supported the inference that the applicant and his father acted in concert:

“Members of the jury, in order for you to convict Andrew Iskandar of murder, it is necessary for you to be satisfied beyond reasonable doubt that he was either the person who inflicted the serious injuries, or by his presence he participated and helped, or was at least willing to help his father who did inflict serious injuries. There is no dispute he was present, and the Crown case is when you critically analyse all of the evidence, the only realistic conclusion is that the father and son were acting together, and that Andrew Iskandar was in fact the person with the hammer.

He knew the plan was for he and his father to inflict the injuries with intent; either intent to cause grievous bodily harm at the very least. The Crown case is that it was always an intention to kill because they were going to take him out, and if that is the intent that you find has been proved to you, then he is guilty of murder.

Was is the evidence that they were acting together? And I have mentioned some of it during the course of my address. The evidence that is relied upon is the motive. It is the same for both. That is the shame, and the anger, and the honour nature of this killing.

There is the purchase of the jacket on 13 February, and the wearing of the two same jackets. The wearing of the caps. The fact that the father and son were together when the car was hired, and were together performing the surveillance that can be shown in the photograph with their caps pulled down in order to conceal their identities.

The Crown relies on the fact that both were armed with dangerous weapons at the time. They deliberately armed themselves members of the jury, and this is a two on one crime, two attackers and one person who is attacked. If something did go wrong, this deceased could have been subdued, both of them were there, to deal with any eventuality.

There is also the text message from Andrew Iskandar to his father before.

The time of the crime is also important. This was an ambush in darkness. The fact that they were laying in wait for the deceased, he was caught by surprise, he was defenseless. The use of the hammer is a heavy weapon. Any hard blow, especially one towards the head, would inflict grievous bodily harm. Any stab with this knife would inflict grievous bodily harm, or kill. The accused would have known that those weapons were in the car.

The paper and the pegs are consistent with a criminal intent because it’s consistent with a desire to conceal. Both of them travelling together in all of these circumstances points irrevocably towards an intention.

Then there is the ramming of the car, the immediacy of the attack at the car, and the fact that both men, both attackers chased the deceased across the road. And they did so when he was already attacked. Then there is the continuation of the attack itself, the number of blows, the placement of the blows, both men kicking Nada Bayley out of the way.

When you look at the ferocity and the nature of the blows, look at where they are inflicted. Towards the head with the hammer, on some occasions, and the knife wound to the chest, which is the killing blow from what Dr Wills told us, you can clearly infer an intention to kill or cause grievous bodily harm from those injuries.

The fact that both men kept attacking this man while he was on the ground. They had gotten him on the ground, he was trying to defend himself, but they kept going. This was a crime full of anger and hate directed at this man, and both of these individuals were full of those emotions when they killed him.

They were standing close to him, and there is no evidence to support the intention that once it started it spiralled out of control. This was what they wanted to do, and they achieved their aim.”

The submissions on appeal

80. The applicant submitted that the Prosecutor’s conduct of the case was discriminatory and unfair and amounted to improper vilification of him on religious and racial grounds. He relied on the duties of the Prosecutor to conduct the case with fairness and on parts of the Racial Discrimination Act 1975 (Cth) and art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. Reference and comparison were made to the sentencing judgment of Beech-Jones J (as his Honour then was) in R v Maglovski (No 2) [2013] NSWSC 16. The applicant took the Court to case law that discusses the boundaries of permissible advocacy for a barrister appearing for the prosecution and submitted that the conduct of the present case, with its emphasis on stereotypical beliefs purportedly held by Muslims and/or members of the Malaysian or Indonesian communities, breached the Prosecutor’s duty of fairness.

81. It was submitted that the “grossly unfair utterance ‘honour killing’ subconsciously was unfairly considered by the jury as a motive of the applicant and his father; it was uncorroborated”. It was put that “the introduction of Islam exemplifies extreme prejudicial effect, since the jury may use the evidence improperly”, for example, by assuming that a person with “Islamic affiliations” will necessarily act in accordance with a belief in so called “honour killings” on a particular occasion. In support of that proposition, reference was made to the High Court’s decision in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [17] where the Court emphasised the dangers inherent in the admission of tendency evidence.

82. In his submissions in reply, the applicant submitted that “the Crown erred in law by not having led any expert evidence to prove this part of its case” and that, having failed to call any expert evidence, “ran its case based on prejudice and discrimination.” While the applicant at times accepted that it was open to the prosecution to conduct the case on the basis that the murder of Mohd Shah Saemin was an honour killing, he submitted it was incumbent on the Prosecutor to adduce expert evidence to establish such a motive or such beliefs.

83. The applicant submitted that a “substantial miscarriage of justice” was occasioned and the verdict on count 1 could not properly be used to save the conviction because, as in the case of La Rocca v R [2021] NSWCCA 116 (at [143]), the trial was “contaminated by so much prejudicial evidence”.

84. The respondent submitted that the issue of “honour killing” played a relatively small role in the overall conduct of the prosecution case. She said the Prosecutor at trial “embarked on a detailed forensic cross-examination” which focused on the applicant’s version of events and submitted that “only a small portion … was directed [to] the applicant’s observance of the Islamic faith and his views on adultery”. Similarly, the closing address constituted a detailed analysis of the circumstantial case against the applicant which occupied 100 pages of transcript during which there were only three references to “honour killing”. It was submitted that when the closing address was considered “as a whole, these statements did not deflect the jury from [its] essential task.”

85. Substantial reliance was placed on the course adopted by defence counsel at the trial. The respondent relied on the absence of any objection to the cross-examination and the lack of complaint about the Prosecutor’s closing address. Apart from the issue of leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“Criminal Appeal Rules”), the respondent submitted that the failure to take any objection at the trial suggests that the issue now raised by the applicant was not apt to cause a miscarriage of justice.

86. Based on the evidence adduced at the trial and the defence presented by the applicant, the respondent submitted the course taken by the Prosecutor was open to her. That conduct “did not exceed the proper boundaries of prosecutorial conduct, nor did it distract the jury from its essential task.”

Consideration

87. As I said at the outset, there is sufficient merit in this ground to justify the grant of leave to appeal despite the absence of objection at the trial. However, the lack of complaint at the trial remains relevant to a resolution of the ground of appeal and the outcome of the appeal itself.

88. The introduction into the trial of the concept of an “honour killing” and its connection – as it was put to the applicant in cross-examination – to the applicant’s religion gave rise to a danger that the jury’s deliberation may be infected with prejudice and emotion. Given the strength of the prosecution case, and the admissions made to Mr Lau which betrayed a motive, attempting to categorise the crime as an “honour killing” or one that was motivated by the applicant’s religion was unnecessary. In my assessment, made a decade after the event, it was regrettable.

89. I do not accept the respondent’s submission that the relatively infrequent raising of the topic, set against the length of the cross-examination or the address, was such as to eliminate any danger of prejudice. The timing of the introduction of the topic must also be considered. The first words the Prosecutor said to the jury after it was empanelled were: “Members of the jury, this trial is about an honour killing”. The stream of questions relating to the applicant’s religion, and its condemnation of adultery, came at the conclusion of a two-day cross-examination and was clearly a forensic choice made to increase the impact of the questioning. Similarly, the timing of the introduction of the subject in the Prosecutor’s thorough and powerful address was designed to increase its impact.

90. However, I am not persuaded that the Prosecutor’s conduct at the trial was improper. Assuming defence counsel did not know beforehand, it was clear from the first sentence of the opening address that the Prosecutor intended to argue that the murder could be classified as an “honour killing”. When no objection was taken to that approach, it is not surprising that the Prosecutor – who had a professional and ethical obligation to present the murder case forcefully and without fear or favour – persisted.

91. The duties of a prosecutor are well established and have been considered in many appellate decisions: see, for example, Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 (“Whitehorn”), KNP v R (2006) 67 NSWLR 227; [2006] NSWCCA 213, Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 from [572] and Armstrong v R [2013] NSWCCA 113. It is unnecessary to revisit those decisions and the relevant principles in any detail here. The cases, and the ethical obligations set out in the NSW Barristers Rules 2014 (NSW) [1] and the Prosecution Guidelines (NSW), [2] emphasise the need for a prosecutor to act with detachment and not to press for a conviction beyond a full and firm presentation of the case. In particular, a prosecutor must not seek “to inflame or bias the court against the accused.” At the same time, the prosecutor essentially acts on behalf of the community and is entitled to present their case with force and vigour. The lines are not easily defined other than on a case-by-case basis. This Court does not sit as an arbiter of legal ethics but is concerned to guard against miscarriages of justices, including in cases where the conduct of counsel on either side causes or contributes to such a miscarriage. In Whitehorn, Deane J said at 663-664 (with citations omitted):

“Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing [their] function of presenting the case against an accused, [they] will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered. If there be exceptions to that general proposition, they do not presently occur to me.”

1. Noting that since the applicant’s trial, the NSW Barristers Rules 2014 (NSW) have been replaced by, but relevantly replicated in, the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).

2. Published by the New South Wales Director of Public Prosecutions.

92. In the present case, there was nothing underhanded or improper in the approach taken by the Prosecutor. On the contrary, she raised the issue at the very beginning of the trial. If defence counsel was at all concerned that the reference to his client being motivated to take part in, or carry out, an “honour killing” might permeate the trial with unfair prejudice, the time to raise the issue was at the first break after the Prosecutor opened the case. If the Prosecutor had used the expression “honour killing” in her closing address for the first time, the situation would have been of far more concern.

Ground 3: The trial miscarried because of inhumane gaol conditions that led to [a] sleep deprivation inducing environment undergone by the appellant during his trial.

125. The applicant read his own affidavit sworn or affirmed on 22 August 2023 in support of his third ground of appeal. The substance of the affidavit is in the following terms:

“2. The first twelve days of trial took a toll on me because I was accommodated in Parklea Correctional Centre; which as I found out was notorious for a laborious process of holding inmates in waiting cells including myself for long hours. Therefore I raised this to counsel but found conditions still did not ease.

3. It was a major struggle as the food was inedible e.g. frozen sandwiches and I was unable to purchase buy ups i.e. food groceries because of the timing was detrimental. Morning meals were a milk and cereal but I very rarely consumed this as I was too exhausted to eat.

4. Grocery buy-up was very difficult to lodge as the lack of sleep rendered me unable to remember to enter in the weekend because I was trying to catch up on much needed sleep.

5. There were also a couple of incidents when I lodged a food buy-up during trial and did not get my purchases of food.

6. I lost about ten kilograms over the six week trial as the only time I ate was at night after arriving from the holding cells.

7. Most of my sleep was on the transportation truck and it would be in bouts of 20-30 minutes as other prisoners would be having conversations or the traffic noise would wake me up.

8. The trips in the truck were very dreadful and I dread transportation in gaol trucks to this day.

9. After court you would be transferred to a holding cell in Silverwater prison wait for several hours and then transferred to Parklea prison and again wait in the holding area for several hours.

10. I would sleep past midnight unvaryingly as because for example arriving to the cell by 10:30 pm, I would need to unwind, relax, shower and eat; I would subsequently be notified at 3:30am-4am, to be ready by the door for court.

11. Although the court adjourned for example at 3’oclock the near 7 hour journey back to the cell was torturous.

12. The stresses of the murder trial and its logistics would only give me 2-3 hours of sleep a day including the rests in the truck.

13. In the fourth week of my testimony in cross-examination I was accused of changing evidence which felt like an inference that I was lying; after not understanding prosecutors’ explanations three times of this supposed fabrication.

14. I denied it but conceded that I may have misheard because of lack of sleep.

15. When she corrected herself afterward after extensive questioning and tried to explain this to me; this confused me additionally because I was telling the truth completely. The judge explained what she was saying; and I agreed only to avoid embarrassment but I still was confused somewhat because of what in hindsight was the severe lack of rest and sleep and nutrition and very high stress levels. The prosecutor was adamant of me telling untruths by changing evidence; She, the prosecutor after what felt like a very long time, claimed that I did not in fact fabricate this certain point and she made a mistake; I was very disappointed and felt completely helpless as my reputation felt shattered because of the alleged untruth I was supposedly to have said. I mentioned in the witness box that I was not sleeping well and conditions still did not improve despite assurances of close monitoring.”

126. In his written submissions, the applicant referred to the fact that the issue was raised by his barrister at his trial and that the trial Judge said “it’s a matter that has concerned me very greatly since you raised it yesterday morning” and that “on any view they are very long days for somebody who’s undergoing a trial of this nature – and long days for anybody doing anything”.

127. The applicant also pointed to times during his cross-examination when he and the Prosecutor were at cross-purposes or where the applicant appeared to be confused by the questioning, even after the Prosecutor attempted to explain what she was driving at.

128. The applicant referred the Court to statutes and international conventions that “prohibit torture, inhuman and degrading treatment.” He submitted that “the transport arrangements causing strenuous tension causing sleep deprivation equated to cruel, unusual and inhumane treatment.”

129. The respondent submitted that this ground was not established and that the complaints raised at the trial were dealt with appropriately by the trial Judge. For example, when the matter was first raised by counsel for the applicant, his Honour granted an adjournment of the trial so that the applicant could be returned to Parklea prison and, with the consent of the parties, excused him from the courtroom during some evidence which was tendered only against his co-accused mother. That was on the twelfth day of the trial (1 November 2011). The next day, the parties put on the record the hours they understood the applicant was being woken and returned to his cell and defence counsel said Mr Iskandar was grateful for the extra two hours of sleep he had as a result of being excused the previous day. The trial resumed and the matter was not raised again during the prosecution case. At the beginning of the defence case, on 9-10 November 2011 (days 18-19 of the trial), the trial Judge granted an adjournment application when counsel told him Mr Iskandar had not slept the night before. The applicant commenced his evidence on 11 November 2011. The issue was not raised again when the applicant resumed his evidence the following day although by that stage he was in cross-examination.

Consideration and resolution of ground 3

130. This ground raises important issues of fairness. The complaints raised by the applicant are regrettably common and trial judges must exercise caution and flexibility to ensure that the conditions of custody and the transport arrangements made during criminal trials do not result in an accused person being unable to participate in the proceedings.

131. From the record of the applicant’s trial, it seems Mr Iskandar was, at times, being woken as early as 3:30am and not returned to his cell until 11:00pm. This is, as the trial Judge said, unacceptable. The information provided by the Prosecutor on the twelfth day of the trial was as follows:

“HIS HONOUR: Yes, well I must say it’s a matter that has concerned me very greatly since you raised it yesterday morning.

O’SULLIVAN: The Crown has some records that have been obtained, which I haven’t looked at them closely, but I have no doubt they will support the submission I made to your Honour yesterday in relation to when he’s woken up and when he’s taken back.

CROWN PROSECUTOR: Your Honour the Police did make some inquiries with Corrective Services yesterday, and I can indicate to your Honour that the accused is generally back at Parklea before 9 o’clock, but there is a protocol within the gaol that every inmate who comes to court must be checked by a nurse to make sure that there are no health issues, and self-harm matters, which is a matter that has been raised with respect to this accused, so it is a necessary procedure, and that is the delay I’m told with getting him back to the cell.

I have the times which I would like to go through with your Honour for his being woken up in the morning and being returned to his cell: On 10 October he was woken at 5 to 5am and returned to his cell at 7:31pm; on 11 October he was woken at 4:41am and returned to his cell at 21:20; on 12 October he was woken at 4:41 and returned at 18:20; on 13 October he was woken at 4:57 and returned at 23:10; on 17 October he was woken at 5:02 and returned at 23:10; I cannot read the waking time on 18 October, it’s not come through on the document, but he was returned to his cell at 22:18; on 19 October he was woken at 5 to 5 and returned to his cell at 21:04; on 20 October he was woken at 5:07, and returned to his cell at 22:08; on 21 October he was woken at 4:48 and returned to his cell at 21:19; on 24 October he was woken at 4:58 and returned at 22:19, on 25 October he was woken at 5:30 and returned at 22:22; 26 October he was woken at 4:36 and returned at 20:40; on 27 October he was woken at 4:22 and returned at 22:34; on 28 October he was woken at 4:25 and returned at 22:45; and on 31 October he was woken at 4:30 and returned at 22:48.

The drop off times to Parklea range from the earliest at 4:05pm, which probably was on a Friday I expect, but generally they’re 5:50, 7:20, 7:30. 9pm is the latest, and that is on one occasion. 8pm is the other latest time.

So it seems that it’s not so much the transport, it’s the internal procedures, with the nurse seeing the accused at the gaol, that delays him getting to sleep. I don’t think anything can be done about the waking time, that is simply standard for the transport that is to take place.”

132. In paragraph 2 of his affidavit the applicant refers to the “notorious” practices at Parklea prison relating to the transport of inmates and use of holding cells resulting in extremely long days and little opportunity for sleep. The problems raised by the applicant are familiar to me from sitting as a trial Judge: see, for example, R v Qaumi & Ors (No 30) [2016] NSWSC 586 where I made (non-binding) recommendations to gaolers, including that two of the co-accused men be transported directly to and from Parklea prison. A similar issue confronted Johnson J in R v Turnbull (No 8) [2016] NSWSC 714 when his Honour said his “principal concern is the proper administration of justice”. The limitations on judges interfering with the administration of prisons are well known and established: see Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 and the authorities collected at [7] and [11]. Recommendations sometimes appear to be ignored or encounter bureaucratic resistance. Even so, the courts retain the power to control their own process and there are powers to grant bail, stay proceedings temporarily, discharge the jury, and adjourn the trial.

133. In the present case, Davies J demonstrated understanding of the applicant’s position throughout, expressing the view that “it is entirely unsatisfactory the prison authorities are treating him like this in the middle of the trial”. His Honour granted applications for adjournment on both occasions they were made. The applicant was given two nights off between the close of the prosecution case and being called to give evidence.

134. While the applicant’s complaints are matters of substance, neither the record of the proceedings nor the affidavit read on the appeal, establish that his treatment by prison authorities during the trial resulted in a miscarriage of justice. His barrister was clearly capable of raising the issue with the trial Judge and did so on several occasions and with appropriate persistence. On each of these occasions, the trial Judge granted an adjournment, without demur from the Prosecutor who said she could not properly resist the application.

135. After the first day of the applicant’s evidence, counsel said nothing to suggest that the applicant was not capable of continuing to give evidence or that he would be disadvantaged in doing so. The transcript of the cross-examination does not suggest that the applicant was too fatigued to answer the Prosecutor’s questions. It is true there were occasions when the Prosecutor and the witness appeared to be at cross-purposes and others where the applicant did not seem to understand the question. There was also an occasion, as the applicant submits, where the Prosecutor withdrew an earlier suggestion that the applicant had changed his evidence. None of those matters are unique or particularly unusual in what was, for both questioner and witness, a difficult and lengthy cross-examination. There is nothing in the record that establishes that any such incident, or the applicant’s performance in the witness box, was caused or affected by sleep deprivation or unduly onerous prison conditions. There were no doubt aspects of the applicant’s evidence which did not go well, and occasions when he struggled to find an answer to the questions and propositions being put to him. However, that appeared to be because of the nature of the evidence he gave and the material available to challenge that evidence. It did not appear to arise from the applicant being incapacitated or disadvantaged by a lack of sleep.

136. Because of the importance of the issue, and the fact that the matter was raised during the trial, I would grant leave to appeal. However, in view of the trial Judge’s conduct of the trial, the granting of adjournments when sought, and because there was no “miscarriage of justice” in any relevant sense, this ground of appeal must be rejected.

Conclusions and orders

137. Consistent with those reasons, I would make the following orders:

1. Extend the time in which to appeal.

2. Grant leave to appeal on grounds 1 and 3.

3. Refuse leave to appeal on ground 2.

4. Dismiss the appeal.

138. N ADAMS J: I have had the significant advantage of reading the judgment of Hamill J in draft. I agree with the orders proposed by his Honour. As for his Honour’s reasons, I agree with them insofar as they concern grounds 2 and 3. I also agree with them insofar as they concern ground 1 save for what his Honour has said at [88]-[89], [107] and [109]-[110] to the extent that it is suggested that the Crown Prosecutor’s conduct gave rise to an “irregularity” at the applicant’s trial.

139. I am grateful to his Honour for setting out the relevant evidence, submissions and legal principles as it means my reasons can be relatively brief. There is much common ground between his Honour and I; in fact, I have no additional matters to add to those already identified by him. I have simply relied on the same matters identified by his Honour and reached a slightly different conclusion about the manner in which the Crown Prosecutor dealt with the evidence of motive at the applicant’s trial.

140. In his written submissions in reply, the applicant clarified his complaint under ground 1. As Hamill J has noted at [82], the applicant accepted that the Crown Prosecutor “could have r[u]n” the case as an “honour killing”; his complaint is that his religious beliefs should not have been raised at trial without expert evidence. The applicant submitted, “[i]t is again reiterated that the Crown case would have been legitimate if honour killing was not supported by religion”.

141. Thus, the applicant appears to accept that the Crown was permitted to rely on the motive that the applicant agreed with his father to kill his mother’s lover because of the shame and dishonour the affair had brought on the family and to describe that motive as an “honour killing”. Despite this, he submitted that the references to “honour killing” in the Crown opening and closing addresses were “tainted” by connecting it to religion.

142. Putting the question of the applicant’s religious beliefs to one side, I am satisfied that there was an evidentiary basis to link the motive with notions of shame and dishonour. Hamill J has summarised some of the evidentiary basis for the Crown case on motive at [74]. In any event, the applicant did not have a difficulty with the use of the word “honour” at his trial.

143. As for the evidence of the religious faith of the applicant and his parents, some of that evidence was led uncontroversially as part of the surrounding circumstances leading up to the killing. That evidence included that the deceased and the applicant’s mother were observed to go into the prayer room at the Malaysian Embassy together and that the deceased had purchased her some “Moslem style dress” as a gift. Again, I do not understand the complaint to be that simply introducing evidence that the family adhered to the Muslim faith was prejudicial in some way. The specific complaint is that the applicant’s faith should not have been relied upon in connection with the motive for the killing without expert evidence about honour killings by those who adhere to the Muslim faith.

144. I agree with Hamill J that the Crown was not required to call expert evidence to pursue its case on motive for the reasons I observed in R v Kulwinder Singh (No 1) [2019] NSWSC 1000 at [99]-[107] and [113]-[119]. Any evidence suggesting a cultural or religious “tendency” to do an act is highly problematic. The relevant question is not whether expert evidence of Islamic beliefs about adultery should have been adduced at the applicant’s trial but, rather, whether it was open to the Crown to question the applicant about his religious beliefs on this topic to support the Crown case on motive.

145. The cross-examination of the applicant was extensive and went over two days. Most of it focussed on the applicant’s account of the killing itself. There were only a few questions asked of the applicant about his religious beliefs right at the end. Hamill J has extracted in full the only portion of the cross-examination when the applicant was questioned about his faith (at [76]). The applicant agreed that his religion was Islam, that when he was arrested he was carrying a prayer book and that prayers were displayed on his bedroom wall. When asked if he was a practising Muslim, he replied, “[n]ot really”. He agreed that he believed in Islamic teachings which include that adultery is shameful. He did not know whether those teachings included that adulterers should be shunned, nor that adultery brings great shame on the whole community. After these questions, the subject moved to the motive for the murder more generally.

146. The applicant went on to accept that his mother’s adultery was shameful, but he maintained his position that he did not know his mother was having an affair until after the killing. When it was put to him that in killing the deceased he participated in an honour killing he responded: “It does not decrease or increase the honour, or up or down, if my mother had one affair or 10 affairs, or a hundred marriages, it still wouldn’t affect my honour”.

147. On one view, the cross-examination of the applicant about his religious views did not take the matter any further given his denials that he knew that his mother was having an affair. But the fact that the questioning did not elicit any incriminating responses does not answer the question of whether the questions should have been asked in the first place.

148. Section 41 of the Evidence Act 1995 (NSW) provides for a basis to object to “improper” questions. Section 41(1)(d) provides that:

(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question)—

…

(d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

149. It is worth noting that even allowing for the fact that the examples provided are not closed, there is no specific reference to religion in s 41(1)(d). This may be because there is often an overlap between a person’s culture (which is included) and their religion. In any event, no objection was made to the questioning of the applicant at his trial under s 41(1)(d).

150. As for whether the questioning was relevant, it seems to me that, as a statement of general principle, if an individual adheres to a set of beliefs, whether they be religious, political or otherwise, that either prohibits or supports certain actions, then questioning them about whether they hold those beliefs could be relevant within the meaning of s 55 of the Evidence Act. The question then is whether, despite being relevant, such questioning should be excluded under s 137 of the Evidence Act due to the risk of unfair prejudice. Although s 137 is concerned with evidence rather than questions, it is arguable that such questions could be objected to under that section on the basis that once the answers are given there is a risk that any prejudice cannot be cured by direction. In other words, an objection could be made if it was anticipated that the probative value of any answers would be outweighed by the danger of unfair prejudice in the sense of the evidence being misused by the jury in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [52].

149. Applying these principles to the complaint made under ground 1, I agree with Hamill J that the questions asked of the applicant about his religious views on adultery were unnecessary. The applicant had made admissions to others about his motive. With the benefit of hindsight, it probably did not materially advance the Crown case to ask him additional questions about his religious beliefs.

150. The narrow issue on which I disagree with Hamill J is whether asking these unnecessary questions gave rise to an “irregularity” at the trial. I am not satisfied this is the case. This trial took place over 13 years ago. Although it can be difficult to gauge the atmosphere in the courtroom from the transcript so many years later, the following factors considered collectively mean that I simply cannot be satisfied that there was an “irregularity” at the applicant’s trial.

151. First, not only did the applicant’s trial counsel have no difficulty with the manner in which the Crown dealt with motive (evidenced by the lack of complaint about either the opening or closing address and the fact that there was no objection made to any question asked of the applicant in cross-examination), he embraced it as part of the defence case (see above at [92]-[94] and [106]).

152. Secondly, at no stage did the trial judge express any concern about any aspect of the manner in which the Crown dealt with the question of motive. Even if defence counsel cannot always see that the conduct of a trial might be prejudicial to an accused person, it is always open to the trial judge to raise any concerns: see for example, the recent decision in Holmes v R [2024] NSWCCA 233. As Hamill J has observed in his consideration of ground 3, the trial judge was sensitive to the applicant’s concerns about his sleep deprivation when they were raised (see above at [133]). There is no reason to suspect that his Honour would have permitted the Crown to do anything which could have given rise to a “danger that the jury’s deliberation may be infected with prejudice and emotion”.

153. Thirdly, the evidence of the applicant’s motive was properly before the jury in his admissions to Mr Lau (see above at [29] and [107]). As Hamill J observed at [109], the applicant’s denial in cross-examination that he knew his mother was having an affair prior to the murder was contrary to the terms of his admission to Mr Lau and was another reason why the evidence of his motive was a highly relevant consideration.

154. Finally, it could not be said that the Crown gave the identified motive of the murder being an “honour killing” any undue prominence in the Crown case overall. This trial was conducted for over four weeks from 17 October 2011 until 28 November 2011. During that time, the words “honour killing” were mentioned twice in the opening address, once in cross-examination and three times in a lengthy closing address that went for two days (see above at [76]-[79]).

155. Given that I am not satisfied that there was a third limb miscarriage within the meaning of s 6(1) of the Criminal Appeal Act on any of the tests previously described by the High Court, there is no necessity to consider the applicability of the proviso. However, if it were necessary for me to decide, I agree with Hamill J’s observation at [112] that the case against the applicant at trial was “strong to the point of being overwhelming”.

156. SWEENEY J: I have had the benefit of reading in draft the judgments of Hamill J and N Adams J. I agree with the orders Hamill J proposes and his Honour’s reasons for those orders.

Endnotes

Decision last updated: 24 March 2025