On appeal from the Supreme Court of South Australia
Representation:
B J Powell QC with C J Caldicott for the appellant (instructed by Caldicott & Co)
W J Abraham QC with S McDonald for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Kamleh v The Queen
Criminal law – Evidence – Hearsay – Appellant charged with murder – Alleged accomplice not called as witness – Admissibility of evidence of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements – Whether evidence of out-of-court statements adduced to prove intention is admissible – Walton v The Queen (1989) 166 CLR 283 discussed.
Evidence – Hearsay – Criminal law – Admissibility of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements – Walton v The Queen (1989) 166 CLR 283 discussed.
GLEESON CJ AND McHUGH J. Following a trial in the Supreme Court of South Australia before Gray J, sitting without a jury, the appellant was convicted of two offences of murder[1]. He was sentenced to imprisonment for life, and a non-parole period of 27 years was fixed. An appeal against conviction was dismissed by the South Australian Court of Criminal Appeal[2]. A co-offender, Natale Zappia, was tried separately, and convicted of two offences of manslaughter. Neither the appellant nor Zappia gave evidence at the trial of the appellant. The issue in the present appeal concerns the admissibility at that trial of evidence of certain statements made out of court by Zappia.
The victims were Faraz Rasti and Rhiannon Ellul. Ms Ellul was a prostitute, aged 16. Mr Rasti, aged 22, organised customers, provided security and a driver, and received the proceeds of her prostitution. At the time of their deaths they occupied unit 22 of the Grand Apartments in Melbourne Street, North Adelaide. Their bodies were discovered by cleaners in unit 22 at about 2 pm on 3 April 2000. Mr Rasti died as a result of two gunshots, one to the left eye and one to the throat. Ms Ellul died as a result of a single gunshot to the forehead. Forensic evidence, combined with records of telephone conversations to which Mr Rasti was a party, established that the deaths of both victims occurred at some time between 1.16 am and 4 am on 3 April 2000.
The appellant and Mr Rasti were well known to each other. There was evidence that Mr Rasti was a man of volatile personality, and that, on occasion, he…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kamleh v The Queen [2005] HCA 2
Case
[2005] HCA 2
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Kamleh, against his conviction for murder. The central dispute concerned the admissibility of certain out-of-court statements made by an alleged accomplice, Mr. Zappia, which the prosecution sought to adduce as evidence.
The legal issues before the Court included whether evidence of out-of-court statements could be admitted to prove facts other than the literal truth of the representations made within those statements, and specifically, whether such evidence was admissible to prove intention. The Court was required to consider the principles established in *Walton v The Queen* regarding the hearsay rule and its exceptions.
The Court, by majority, dismissed the appeal. While acknowledging difficulties with the reasoning in *Walton v The Queen* as applied by the majority of the High Court in that case, particularly concerning the dissection of statements to prove intention, the Court found that any potential misdirection of law did not lead to a substantial miscarriage of justice. The prosecution's case was considered compelling, and the appellant's conviction was deemed inevitable based on the admissible evidence. The Court of Criminal Appeal would have been bound to apply the proviso, and therefore, the appeal was dismissed.
The decision of the Court of Criminal Appeal on the point was correct.Conclusion The grounds of appeal all fail. The appeal should be dismissed. For the reasons given by Gleeson CJ and McHugh J[8], the appellant's first two grounds of appeal fail. However, like Heydon J[9], I have difficulties with some of the reasoning of Mason CJ in Walton v The Queen[10] relied on by Gleeson CJ and McHugh J to sustain their dismissal of the third ground of appeal[11].[8]Reasons of Gleeson CJ and McHugh J at [12]-[24].[9]Reasons of Heydon J at [37]-[39].[10](1989) 166 CLR 283 at 288‑289.[11]Reasons of Gleeson CJ and McHugh J at [22]-[23]. With respect, I find the dissenting reasons of Deane J in Walton compelling as a matter of logic and principle. Although, for the reasons given by Heydon J, the point was not argued, the point is one of law. It is directly applicable to this case. Dissecting the "McDonald's conversation" between Mr Simoniuk and Mr Zappia into (1) a fact that the conversation occurred and (2) a fact that emerged in the conversation, and distinguishing that fact from (3) the inculpating content of the conversation as to intention, requires a feat of mental gymnastics that should be avoided in the highly practical context of a criminal trial. This is especially so because usually (unlike in this case) the permissible process of reasoning must be explained to, and performed by, a jury. Because in this appeal there was no direct challenge to the reasoning of Mason CJ in Walton and because the residual common law rule has been overtaken in four Australian jurisdictions by the Uniform Evidence Acts[12], I would not struggle in this instance to resolve the point concerning the statement of intention of Mr Zappia. It is itself a point that is becoming esoteric for most legal and practical purposes. Like Heydon J, I am content to assume that, on the third ground, the appellant might strictly have been able to establish a misdirection of law on the part of the trial judge, if the applicable common law were properly applied. [12]See Evidence Act 1995 (Cth), s 72 (applicable in the ACT by s 4); Evidence Act 1995 (NSW), s 72; Evidence Act 2001 (Tas), s 72. However, for the reasons given by Heydon J[13], such an error gives rise to no relief in this case. The third category of challenged evidence is ultimately of minor consequence. The prosecution case against the appellant was compelling. The appellant's conviction was inevitable on the admissible evidence. The outcome was in every other way accurately reasoned by the trial judge. The Court of Criminal Appeal would have been bound to apply the proviso[14]. On the third ground, there has been no substantial miscarriage of justice.[13]Reasons of Heydon J at [39], referring to the Criminal Law Consolidation Act 1935 (SA), s 353(1).[14]See Kelly v The Queen (2004) 78 ALJR 538 at 551 [56], 563 [123]; 205 ALR 274 at 290, 306‑307. I agree, therefore, that the appeal should be dismissed. I agree that the appeal should be dismissed. For the reasons given by Gleeson CJ and McHugh J, the first two grounds of appeal fail.