Kamleh v The Queen
[2004] HCATrans 287
[2004] HCATrans 287
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A30 of 2004
B e t w e e n -
JAMIL YOUSEF KAMLEH
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON WEDNESDAY, 11 AUGUST 2004, AT 10.04 AM
Copyright in the High Court of Australia
MS B.J. POWELL, QC: May it please the Court, I appear with MR C.J. CALDICOTT for the appellant. (instructed by Caldicott & Co)
MS W.J. ABRAHAM, QC: May it please the Court, I appear with MS S. McDONALD for the respondent. (instructed by the Director of Public Prosecutions (South Australia))
GLEESON CJ: Yes, Ms Powell.
MS POWELL: Thank you, your Honour. Your Honours, the appellant in this matter was tried by judge alone for two counts of murder. The murder occurred in an apartment at Melbourne Street, North Adelaide in the early hours of the morning of 3 April 2000. The bodies were found the next day, the attention of a cleaner at the apartments being drawn to the apartment by very loud volume of a television set playing in the apartment. The pathologist estimated the time of death at between, I think it was, 8.00 pm and 4.00 am on 2 and 3 April, but that did not really matter because the phone records indicated that certainly the male deceased was still alive at round about 1.30 am on the morning of 3 April.
KIRBY J: That assumes, of course, that he was the one who used his phone.
MS POWELL: He did speak with a female person called Stewart who gave evidence and so there was some voice recognition, but there was not much contest that the vital time that we were talking about in the trial was about 1.30 am on that morning. Evidence was admitted that the appellant and the male deceased were good friends, although there had been some evidence of some altercations between them in the time leading up to the death, but they were good friends and associates. The man, Zappia, who was originally jointly charged with the appellant was a good friend of the appellant’s, so he came into contact with the deceased via this appellant, but was not the initiating person in the relationship, if you like.
The evidence really started back on 24 March, the death having occurred on 3 April. What happened back on 24 March was that a witness called Simoniuk met the man Zappia at a McDonald’s restaurant. At the McDonald’s restaurant, Simoniuk and Zappia spoke with each other outside the present of the appellant. In that conversation, Zappia said to Simoniuk words to the effect of that he and Zappia understood that to be the appellant and Zappia, had something to settle with the male deceased, Rasti, and that they were going to “catch up with him”.
GLEESON CJ: Now, is that one of the statements referred to in ground 2.2 on page 2746?
MS POWELL: Yes, your Honour.
GLEESON CJ: It would assist me if you could identify the statements referred to in grounds 2.2 and 2.3. The statement referred to in ground 2.1 is self-evident.
MS POWELL: Ground 2.2 refers to the admission of Zappia’s record of interview with the police. Now, that was not admitted for the truth of its contents, but it was admitted for evidence of what Zappia said to the police, but that is what is complained of in 2.2.
HEYDON J: Does that prove the identity of the other ‑ ‑ ‑
MS POWELL: That is to suggest that there was a joint, concocted alibi, that is right, your Honour. So that 1 is the 3 April post-event narrative, 2 is the record of interview and 3 is the McDonald’s statement.
GLEESON CJ: So the one you have just been telling us about is the 2.3 statement?
MS POWELL: That is 2.3.
HEYDON J: What about the Hectorville statement, is that ‑ ‑ ‑
MS POWELL: Well, the Hectorville statement seems to have escaped a ground of appeal.
GLEESON CJ: I think it escaped special leave actually.
MS POWELL: I do not think it was ever in there to escape special leave, your Honour.
GLEESON CJ: Well, the grant of special leave was limited.
MS POWELL: It was limited, but unfortunately, Hectorville never found its way into the original application. In respect of Hectorville I can say this: The way Hectorville was used by both his Honour the learned trial judge and the Court of Criminal Appeal was inextricably tied to the records of interview because the reasonable evidence said to found the common purpose was identified as the joint alibi lies. So, in a way, although Hectorville is not in here, the substratum of Hectorville would fall away if we succeeded in respect of the out‑of‑court statement in terms of the record of interview. So, it is not in there as a ground, but we say that it is still there to be considered because of the basis of its admission.
In any event, there is the statement that occurs at McDonald’s. Moving forward in time, there is a lot of evidence to say that Zappia and the appellant are in contact with the male deceased, Rasti, and his girlfriend during the week leading up to the time of their death and there is evidence that they were at the apartments and there is evidence that they were seen at the apartments and that, of course, is not contested at all. That is important because, of course, that renders neutral, if you like, evidence of fingerprints, evidence of DNA found at the apartment after the investigation started because there were innocent contacts with both of the deceased and the apartment at the time.
There is one matter of evidence I should just briefly take your Honours to at this point in time. At about 1.00 am on 2 April, that is the Saturday night before the Sunday night, if you like, although, of course, we are really talking about the Sunday morning before the murder, a man called Ievins was staying at the apartments and he was in company with a couple called Mr and Mrs Davis and they were leaving the area of the apartments. They saw two men in the vicinity of the apartments, the shorter of whom had commented “Nice car, mate” to Mr Ievins. Now, that shorter of the two men who had commented “Nice car, mate” was identified by photo board by Mr Davis as being the appellant, so that the appellant is, if you like, identified and recognised at the apartments at about 1.00 am on 2 April. Moving forward in time, between about ‑ ‑ ‑
KIRBY J: The estimated time of death is 1.30 am?
MS POWELL: Next day.
GLEESON CJ: On 3 April.
MS POWELL: On the third, next day. So, 24 hours before the death the appellant is identified by – Ievins talks about these two men, Davis who is in company with him does the identifying and that fact is relevant to what happens the next night, your Honour. The next night, that is the Sunday night, 2 April, the appellant and Mr Zappia go to a unit at Hectorville and this is where the Hectorville conversation occurs.
Again, the witness Simoniuk is there, who had been at the McDonald’s earlier on and, absent the appellant, he talks with Zappia and asks him whether they have caught up with Rasti, the male deceased. Zappia says no and then there is the witness’ evidence that he has an understanding, and it is unfortunate that the questions were asked in this way, but he describes an understanding that they were going to catch up with them that night and there is a request by Zappia for ammunition and the man, Simoniuk, says no. That is all out of the presence of the appellant. Then the appellant borrows from Simoniuk a balaclava. That really is not a very important piece of evidence because there is no suggestion that a balaclava ever features anywhere in terms of any unlawful purpose in respect of the murders that night.
At about 1.00 am on 3 April, this is the relevant day, the witness Mr Ievins, still living at the apartments, sees two men on Melbourne Street coming from the city towards the apartments and he says in his evidence that the taller one of the two was the same as the man that he had seen the previous night. Now, if the Davis evidence is correct, then what Mr Ievins is doing is he is identifying Mr Zappia as being the taller of the two from the previous night, and of course, it was the shorter of the two who had said “Nice car, mate”, the shorter of the two who had been identified by Davis.
With respect to the Sunday night sighting, Mr Ievins said he could not say if it was the same, shorter man – in other words, he could not say if it was the appellant – and he said importantly, we say importantly in his evidence, and he could not remember anything similar about that shorter man and the shorter man that he had seen the night before. He was not able to identify the appellant from a photographic array. So we say, rather than the way in which it was treated by the Court of Appeal and, indeed, the trial judge, rather than there being an identification of the appellant at the relevant time at the crime scene by Mr Ievins, rather the evidence was exculpatory that it was him. Now, the Court of Appeal made a fundamental mistake, we say, in respect of this piece of knowledge because ‑ ‑ ‑
GLEESON CJ: What ground of appeal is that relevant to?
MS POWELL: There is no ground of appeal here, your Honour, but in our submission, and I am just really going through this in terms of any exercise of the proviso that your Honours might make because, of course, if there had been a positive identification at that time then it would make it that much more difficult for us in respect of the proviso and, of course, we have the problem of the proviso because we have the prison informant confession which his Honour accepted. At 2704 of appeal book 11 this topic is dealt with by the Court of Criminal Appeal and your Honours will see the heading to this part of the judgment “The Appellant is Seen on 3 April”. His Honour says at line 12 that:
Mr Ievins’ evidence has to be understood in conjunction with the evidence of Mr Davis. Mr Davis identified the man he saw at 1:00am on 2 April as the appellant. Mr Ievins said that the man Mr Davis identified whom he saw on 2 April was the same man he saw on 3 April.
That is not right. That is just factually incorrect –
He could not identify that man as the appellant. However, if Mr Davis’ identification was accurate . . . the appellant was at the apartments –
That is simply incorrect. The fact is that it was the taller man who he said was the same, not the shorter man who Mr Davis had identified as the appellant and through the judgment of the Court of Criminal Appeal, your Honours will see it is suggested that this identification evidence, the finding that the appellant is seen on 3 April was not challenged.
GLEESON CJ: Just a moment. Which precisely is the error on page 2704 in paragraph 148?
MS POWELL: At about line 14:
Mr Ievins said that the man Mr Davis identified whom he saw on 2 April was the same man he saw on 3 April.
GLEESON CJ: And what does the next sentence mean?
MS POWELL:
He could not identify that man as the appellant -
that is, Mr Ievins could not -
However, if Mr Davis’ identification was accurate and Mr Ievins’ evidence accurate, the appellant was at the apartments –
Now, that is not right because the night before we had tall man, short man, short man is appellant. Next night, we have two men. “The tall man”, says Mr Ievins, “is the same man I saw last night”. That is Zappia, if that evidence is correct. “Shorter man, I do not know, I saw nothing similar to him with the man I saw the night before”. So that summary of the evidence, we say, is inaccurate.
KIRBY J: You had better give us the reference to the actual testimony concerning ‑ ‑ ‑
MS POWELL: Yes, I will get Mr Caldicott to do that, your Honour, while ‑ ‑ ‑
HEYDON J: It is volume 3, pages 728 to 734. Your criticism may be technically correct but the witness did say that he was not 100 per cent sure as to the second male and then he said the other looked like him. In other words ‑ ‑ ‑
MS POWELL: Yes, but your Honour needs to, I think go over the page. At 732 of volume 3, line 11, Mr Ievins says:
Q. Did you see the shorter stockier man on the Sunday night.
A. I couldn’t be 100% sure whether it was the same person. The taller male I was definite it was the same person but the second male I’m not 100% sure.
Q. Not 100% sure of what.
A. I couldn’t say it was him or not, no . . .
Q. Was there anything similar about the man you’ve described coming into The Grand Apartments on the Monday morning to the man you have described going in who said ‘Nice car mate’ on the Saturday night.
A. No, nothing that I can really remember, no.
GLEESON CJ: However, we do know, from undisputed evidence, that Zappia and your client were in one another’s company on this evening. There may be a question of the precise length of time for which they were in one another’s company, but they undoubtedly turned up together at about 2.00 pm at a nightclub.
MS POWELL: Well, it is a question of when they turned up at the nightclub and I will come to that in a moment. There is the evidence they were together at Hectorville.
GLEESON CJ: But we can bring it closer to the point than that, can we not? We are considering now whether the shorter man that Mr Ievins saw at 1.00 am on 3 April was your client. He says the taller man was Zappia. We know that at 2.00 am or about 2.00 am on 3 April your client and Zappia turned up together at a nightclub.
MS POWELL: I would say this in response to your Honour, and it is something I will come to in a moment. There has been a quantum leap, we say, in terms of the question of when they arrived at the nightclub. They are seen together at the nightclub by various witnesses at around about the time your Honour identifies. There is some variation about that ‑ ‑ ‑
GLEESON CJ: Which is about an hour after Ievins sees Zappia and another man.
MS POWELL: Yes. That is right.
GLEESON CJ: Well, there surely cannot be too many people out of bed at that hour of night?
MS POWELL: Well, there were a lot of people in the Q Club, your Honour, and, of course, all of this goes to the question about whether it is a possibility that it is Zappia and someone unidentified and if that is a reasonable possibility, that the appellant and Zappia are together earlier, the appellant and Zappia go to the nightclub, Zappia goes off with someone else and returns to the nightclub. I mean, where the nightclub is situated in Rundle Street is not far from the apartments in North Adelaide. We are not talking about huge distances to be travelled or time spans, but that sort of possibility and the fact that that was open on the evidence was simply never considered. Perhaps it is convenient to take your Honours to why we say the error of assuming that they were together at all relevant times was made.
GLEESON CJ: Because they said so.
MS POWELL: Well, we dispute that, your Honour. What we say is this. Both of these people are interviewed subsequently by the police. Mr Kamleh is interviewed ‑ ‑ ‑
KIRBY J: What was the hypothesised motive, if any?
MS POWELL: The hypothesised motive was that Kamleh had lent the deceased a mobile phone. Now, the phone records showed that it appeared that Rasti, the deceased, was using that phone either late Thursday night or Friday morning.
KIRBY J: But why would Ms Ellul be killed for that ‑ ‑ ‑
MS POWELL: It would be very strange that you would kill because someone borrowed your phone and had not given it back.
KIRBY J: Except that she was there when the borrower was killed.
MS POWELL: Well, that is right. The motive for her would be that she had witnessed the earlier killing and so she got killed as well.
KIRBY J: She was in the wrong place at the wrong time.
MS POWELL: Yes. There was evidence that ‑ ‑ ‑
KIRBY J: But that was all that was suggested by way of motive?
MS POWELL: No, there was the telephone. There was also evidence that Rasti, in his friendship with Kamleh, had from time to time belittled him, argued with him, stood over him, treated him poorly.
GLEESON CJ: Punched him? There was evidence that he struck him and humiliated him.
MS POWELL: I think there was evidence that he had struck him at a time some time removed from the killing itself.
GLEESON CJ: If they were good friends there was a certain volatility about it.
MS POWELL: That is right. If they were good friends and this punching that your Honour refers to is, of course, between then and murder followed by what would appear to be quite reasonable friendship‑type behaviour in terms of visiting, lending phone, that sort of thing.
HEYDON J: But Ms Ridley said that there was a fight 10 days before the deaths?
MS POWELL: Yes, 10 days before, but then subsequent to that, there was evidence of what would appear to be quite normal, civil contact between them.
KIRBY J: The Davises saw them at the apartment the day before.
MS POWELL: No. The Davises see Zappia and Kamleh. There were a host of witnesses in shops and various other places who saw Kamleh with the male deceased.
GLEESON CJ: In considering motives perhaps we ought to take account of the fact that they might have been unusual people?
MS POWELL: Indeed, but there certainly is not what might be described as strong evidence of motive. It has to embrace something unusual, as your Honour the Chief Justice says. It is not the normal sort of evidence that you would expect of motive. It has to be that these are volatile, unusual people, if there is a motive at all.
KIRBY J: I know that we are becoming a mobile phone society but to kill people for a mobile phone seems to be taking it a little bit far.
MS POWELL: I can tell your Honour it was not even a particularly flash mobile phone.
GLEESON CJ: I do not think that it was the Crown case that this was a dispute between a bailor and a bailee.
MS POWELL: No, I do not think so. Kamleh is interviewed first, your Honours, on 11 April 2000 and the record of his interview with the police commences in appeal book 9 at page 2200. Now, I do not propose to take your Honours through the whole of this interview, but the questions with respect to your movements start at the bottom of page 2201.
GLEESON CJ: Just before you get onto this, can you remind us what was the time and date of the telephone conversation on the mobile phone about which we have just been speaking at which somebody spoke to a person who called himself Jamie?
MS POWELL: That was at about 1.18 am as I recall it, your Honour, on the Monday morning. It is the witness Stewart.
GLEESON CJ: So Stewart said that at 1.18 on 3 April she placed a telephone call to this telephone?
MS POWELL: No, she received a telephone call from this telephone.
GLEESON CJ: From Rasti, who put her onto somebody who called himself “Jamie”?
MS POWELL: That is right.
GLEESON CJ: And Jamie is the name by which your client was known?
MS POWELL: Yes.
HEYDON J: Just one point of detail, you said the interview was 11 April and, indeed, the first line of that page says so, but the police officer says it is 11.36 on 6 April. Which is right?
MS POWELL: Yes, 6 April is right. I am sorry, I was just looking at the top. It is 6 April. So he starts talking about his movements at the relevant time from the bottom of 2201. He talks about the visit to the Hectorville unit from about point 6 on page 2204. He says on 2205, at line 29, when asked by the police officer:
what time do you think you got there -
referring to the Q Club -
Around about quarter to eleven or about elevenish quarter to eleven.
At 2206:
WEEDING. So you went into the Q billiard hall.
KAMLEH. Oh.
WEEDING. Or what is it.
KAMLEH. No its not a billiard hall on Sunday you can play billiards if you want, but it’s mainly, they got DJ . . .
WEEDING. And who else was there that you knew?
KAMLEH. Oh um, we saw my cousin Raymond that doesn’t count does it um, his girlfriend Fiona and this bloke Paul, it was his birthday. He’s um, going to be moving in with my cousin Ray . . .
and a girl called Chelsea -
Over the page:
WEEDING. Yep, so what did you do at Q.
KAMLEH. Drank, just chilled out perved on the girls.
WEEDING. Was it a busy night?
KAMLEH. No not for the beginning of it the beginning was pretty shitty and then it got good . . .
WEEDING. So what time did you stay there to?
KAMLEH. About four. Yeah they close at four and I was complaining that I couldn’t get a drink after four.
WEEDING. All right . . .
KAMLEH. Oh, me and Chris –
and he refers to Zappia as Chris –
we were looking for a mate who works there, but he didn’t get there until later.
WEEDING. And who was that?
KAMLEH. His name is Brad –
Brad is the witness Townsend, who said he saw – was unable to have any recollection of this night, refreshed his memory from his police statement given relatively contemporaneously - the appellant at the Q club at about 12.30 am on the relevant day, but he was not accepted by the trial judge:
KAMLEH. Oh he just works there. He couldn’t come up nothing he had to work downstairs so.
WEEDING. But you saw Brad.
KAMLEH. Yeah.
WEEDING. What time do you think you would have seen him.
KAMLEH. About twenty past twelve -
which, of course, was supported by Brad Townsend -
WEEDING. And that was at the front door.
KAMLEH. Yeah –
If your Honours continue on through the record of interview, there is something which is apparent and that is this. He was never specifically asked whether he was with Zappia and Zappia remained with him at all times. It was never put to him that the conversation with the group, the conversation with Raymond, his girlfriend and the other witnesses from the Q Club who were called – he was never asked when that occurred in the context of his arrival at the Q Club, whether it was straightaway, whether it was after he had been there for a while, whether it was towards the end, nothing of that nature at all.
That is to be relevantly, we say, contrasted with Zappia’s statement to police. Mr Zappia’s statement appears from page 2482 of appeal book 11. He is interviewed on 14 April 2000 as appears from that page. At the outset of the interview, your Honour the Chief Justice might note, he says at line 14 when asked how he knew the two deceased:
A. Not too well but um, I went there with Jay a couple of times.
Q. With?
A. Jamie.
Q. Who’s Jamie?
A. Jay, Jamil.
GLEESON CJ: What page again, Ms Powell?
MS POWELL: Page 2483.
GLEESON CJ: Thank you.
MS POWELL: That is some material as to what he said about the name although, of course, this was not admitted for evidentiary purposes.
GLEESON CJ: Now, it is this document beginning at page 2483 that is the subject of ground 2.2?
MS POWELL: That is right. At 2491 Zappia is talking about going to the Hectorville unit where the conversation with Simoniuk occurs. Interestingly, he says at 2493, at about line 21, that he was at the Hectorville unit for:
A. Uh probably half hour, twenty minutes . . .
Q. Jamil go inside with you?
A. Nuh, he waited in the car.
So there is that distinction there. Over the page at 2494, at line 15:
Q. So what time did you get to the Q Club?
A. Uh probably about ten, ten twenty around that time.
Over the page, the question about line 13:
Q. So when you got to the Q club was there anybody there that you knew?
A. . . . Jay’s cousin was there.
Q. Jay’s cousin was there?
A. Yeah, cause it was someone’s birthday, someone’s birthday party he was turning 23. Paul or something.
That is the witness Kendall who heard the conversation when Raymond Kamleh said, virtually, “Will you cover for my cousin and his friend and say that they were here?” Now, significantly, over the next page, 2496, question at line 15:
Q. Sorry what did you [do] when you got up there?
This is at the Q Club.
A. Oh well, went and said happy birthday to this bloke –
that is Kendall –
I didn’t even know him.
So there is the question and answer which gives rise to the inference that this conversation with other Q Club witnesses occurred right at the outset of Zappia and the appellant’s attendance at the Q Club, but that was something Zappia said. It was never something which the appellant said. The questions go on about what happened at the Q Club, and over at page 2498, the police officer asks at line 9:
Q. Did Jamil get up and have a dance? Or go for a walk around the place?
A. Yeah, he took off, I don’t know where he went, but um, he’s only like ten minutes. But he just said he had to go outside and give a mate a call.
Q. How long, about what time of night was this?
A. Probably about, three, two‑thirty, three.
Q. So you’re with him all the time?
A. Pretty much.
That is a question which was not asked of the appellant. What we say is that both the learned trial judge and the Court of Appeal have impermissibly used for real evidence purposes this record of interview to conclude two things: (1) that the conversation with the Q Club witnesses occurred at the time of arrival rather than at some time during the course of the night and morning, and (2) that Zappia and the appellant were present together at all times when that can only be derived in a real sense from Zappia’s record of interview, but was never asserted in the appellant’s record of interview which, of course, was evidence on his trial.
So we say that that is where both the trial judge and the Court of Appeal fall into error in respect of the use that they make of that evidence. On the same day, that is, 3 April, the witness Simoniuk gives evidence of a conversation which he has with Zappia. This evidence is dealt with ‑ ‑ ‑
GLEESON CJ: This is the subject of ground 2.1?
MS POWELL: Ground 2.1, yes, thank you, your Honour. This is part of the evidence which his Honour Justice Lander in the Court of Criminal Appeal identifies as three telephone conversations. That is incorrect. On 3 July, Simoniuk says that he had a conversation over the phone with Zappia. That appears at appeal book 5 at 1049. Perhaps before I take your Honours to this piece of evidence, could I just take your Honours to the judgment in respect of this. That appears in book 12 at 2739. His Honour refers to three telephone conversations. They are not; they are three face‑to‑face conversations, the last two of which are recorded by means of a listening device. At about line 18 his Honour says:
The evidence would not be admissible to show Mr Zappia’s state of mind at the time that he made the statement. That was not a relevant fact in issue.
The trial judge admitted those three conversations on the basis that they disclosed esoteric knowledge on the part of Mr Zappia which was relevant in the case against the appellant because, on the appellant’s account, the appellant and Mr Zappia had not been outside each other’s company over the whole of the relevant period.
We pause there to say, no, that is what Mr Zappia says, but it is not what the appellant has positively asserted. It might be able to be implied, but we say that would be dangerous and this really reflects the impermissible use of the Zappia statement.
Evidence of statements made which disclose esoteric knowledge which would implicate the maker of the statement in a crime is admissible as evidence implicating that person in the crime. The statement does not prove the truth of what was said, but the statement may be used to infer Mr Zappia’s presence at the time when the murder was committed and thereby that the appellant fired the shots because the appellant was in his company.
So that is the way it is used. His Honour then goes on to identify what he says the evidence of esoteric knowledge is:
First, [Zappia] knew that three shots had been fired. Secondly, he described the wounds of the deceased. Thirdly, he suggested that the gun jammed. There was evidence that the third matter is consistent with the live .22 bullet that was found by the police.
I pause there to say the evidence was that there was a live round. The markings on that round indicated that it had been in the magazine at some stage. That was forensic expert evidence. His Honour goes on, having identified what constitutes the esoteric knowledge, to say at the top of 2740:
There is no suggestion that Mr Zappia could have learned of those matters from any source including the police or the cleaners.
The conversation on 3 April was, therefore, admissible.
Now, I pause there to say his Honour obviously is of the view that all of those three matters are disclosed in the 3 April conversations.
However, I do not believe that it was established that the statements made by Mr Zappia to Mr Simoniuk on 8 and 9 July display esoteric knowledge.
Obviously, that is many months after. Even though his Honour the learned trial judge had admitted them as disclosing esoteric knowledge, the Court of Criminal Appeal said, no, they are inadmissible because they are too long after the event to disclose that sort of knowledge.
GLEESON CJ: Where do we find the evidence of this conversation of 3 April?
MS POWELL: I would like to take your Honours back to 1049 of volume 5:
Q. When did you next see Mr Zappia –
talking about after the Hectorville unit visit –
A. I believe I saw Mr Zappia the following day.
Q. Did Natale tell you, did he say anything on the topic of whether they had caught up with the man.
A. Well, our first sort of conversation was over the telephone.
There was some argument down at line 37:
Q. Keep going.
A. I would just like you to make it clear whether it was the first time I spoke to him or whether it was actually when we went face to face?
. . .
A. Whether it was the first one that I had on the telephone or when I actually went to his house.
Q. The first conversation you had with him.
A. The first conversation which was over the telephone, he did not mention anything on that subject.
Q. Did you subsequently see him.
A. Yes.
Q. After that phone conversation.
A. A short time after that, a couple of hours, maybe.
Q. Can you tell his Honour what was said.
A. When we actually arrived at his flat –
He does not actually live in a flat; the evidence was he lived in a house with his parents and brother and sister –
Q. Yes.
A. We would have spoke about, I suppose he looked really nervous, looked a bit tired, looked very tired. We were obviously there, first of all, to arrange some marijuana and after that that was sort of organised me and Ilyas Khelwaty –
Ilyas Khelwaty is the owner of the Hectorville unit, by the way, your Honours –
proceeded to have a smoke and I can’t remember what it was, whether it was myself or Ilyas but we were sort of stirring him up about what we saw on the news earlier.
Q. . . . Did Natale say anything on the topic of whether they had caught up with the man.
A. Some time that evening, yes, he did.
Q. What did he say.
A. Well, specifically I can remember saying him he can’t believe he done it, he can’t believe he done it, ‘shouldn’t have to die’. It was more ‑ ‑ ‑
HEYDON J: That was rejected.
MS POWELL: Then there is long objections. Go over, your Honours, to 1052:
Q. In that conversation –
and one can assume the questioner is still asking about the 3 April conversation –
that you had with Mr Zappia, did he tell you that he was in the room when Faraz and Rhiannon Ellul were shot.
A. After having read my statement and refreshed my memory, I believe yes.
Q. And did he tell you that he, meaning Natale Zappia, had turned up the television set.
A. During some point, of him turning it up, yes.
Now, that answer, “During some point, of him turning it up, yes”, we say is equivocal, particularly in the light of what follows on in this witness’ answers. “During some point” could mean during some point of the conversation of 3 April, or it could mean during some point of time whenever – at large, if you like. We say that that ambiguous answer, its ambiguity is manifest by the questions and answers which follow:
Q. Did he tell you that Jamil Kamleh had shot Rhiannon and Faraz.
A. Okay, those specific words I can’t say I remember.
Q. Did he tell you what kind of gun was used.
A. I cannot be sure if the details of the calibre of the firearm – I can’t be sure if they were disclosed to me that night.
Q. At some stage were they disclosed to you.
A. Yes.
Q. If they weren’t disclosed to you that night, when would they have been disclosed.
A. Subsequent meetings that I had with Natale, most likely in Ilyas’s apartment.
Q. Whether or not the conversation occurred the day after or in Ilyas’s Khelwaty unit with you some time later, did Natale Zappia tell you how many shots were fired.
A. Yes.
Q. What did he tell you.
A. Three shots went off from that firearm.
Q. Can you tell us all what he told you on the topic of those three shots and who was shot first.
A. Mr Faraz was shot first suffering an injury in the eye. Then the female, she was shot somewhere in the head. And Mr Faraz again was shot in the throat.
Q. Did he say how many shots were fired or attempted to be fired.
A. After Mr Faraz was shot, the subsequent time in the throat, there was another shot fired at which point the gun jammed.
Now, what we say is that there is no reason that either the learned trial judge or, from that evidence, the Court of Appeal could say that the esoteric knowledge was disclosed in the conversation on 3 April.
If we go to the excerpts of the transcripts of 8 and 9 July conversations – and we do not need to actually go to the evidence on this because it fills up a great wad of the appeal books and it is conveniently summarised in the judgment of the Court of Appeal at page 2723. Perhaps before I take you to these excerpts, looking through those or reading of those intercepted conversations make it very plain that in July not all of the conversations between Simoniuk and Zappia have been recorded. There is talk about the fact that Simoniuk has picked Zappia up from the airport, for example, and obviously any conversation that occurs there or in the car is not recorded. Indeed, just the way that the conversations flow, it is apparent that not all of the conversations could possibly have been picked up by the listening device.
GLEESON CJ: Ms Powell, I notice that a long succession of leading questions are asked without objection. Was that perhaps because the witness was refreshing his recollection from some document and, if objection had been taken, that might have resulted in the document going in?
MS POWELL: Your Honour, when I first read this that was immediately what struck me and I tried to ascertain why that might have happened, and I found on page 1052, the prosecutor saying at line 17:
I hear my friend saying he has no objection to me leading and, in that event, I will do so.
MR MOFFA: No objection to leading it but these are still subject to the overall objection.
HEYDON J: Ms Kelly said that on 1051, line 28. In effect, it was agreed that it was legitimate to ask leading questions.
MS POWELL: I do not know what the arrangement was or why it was struck.
GLEESON CJ: Sometimes a lack of clarity results from a failure to adduce evidence properly and sometimes there is no objection to a witness being led through his evidence because there is no substantial dispute about the evidence.
MS POWELL: That could hardly have been – I mean, all of this evidence is subject to objection.
GLEESON CJ: Yes, subject to objection as to admissibility?
MS POWELL: Yes, that is right.
GLEESON CJ: And your ground of appeal relates, and relates only, to the admissibility of the evidence, but it is curious, if the evidence was subject to serious dispute, that it was led in that way.
MS POWELL: I suppose the appellant was in a position whereby, not being present at the conversation, there was not much he could do about it. Did not know what was said, did not know whether Simoniuk was making this up, did not know whether Zappia said it and he was making it up. There is just no way of challenging it at all. That is why we, of course, in our submissions say that really this is dangerous hearsay and it is manifested by the fact that the appellant could not challenge it in any way and manifested by the fact that there probably was not even much point to challenging the leading because we were just, if you like, standing by watching it all happen.
In any event, if I can take your Honours to the excerpts from the listening devices, of course, reminding your Honours that not everything that is said between Zappia and Simoniuk could possibly be recorded, so that those matters of information which his Honour referred to as esoteric knowledge in his judgment will not necessarily turn up in the later July conversations, but it is significant that some of them do.
If I can take your Honours to 2723, book 12, your Honours will see from line 20, the first thing that is said by Zappia to Simoniuk on what was found to be the inadmissible July 8 conversation is about turning the television up. The television turning up goes on through page 2724, and over on 2725, there is an excerpt from the 9 July conversation:
“Mr Simoniuk: Just listen, say I was in the house, I started watching t.v. next thing Jay …
Unidentified Male: …
Mr Simoniuk: He started arguing, the next thing you heard was two shots, three shots, whatever,
Mr Zappia: Three shots”
GLEESON CJ: Where is the reference to Jay?
MS POWELL: Line 6:
“Mr Simoniuk: Just listen, say I was in the house, I started
watching t.v. next thing Jay …Unidentified Male: …
Mr Simoniuk: He started arguing –
I do not know what Simoniuk is talking about.
HEYDON J: Your point is really this, is it not, if the Full Court were correct in excluding the 8, 9 July conversations and if the course of the examination‑in‑chief of Simoniuk left the witness unable to say whether or not the esoteric knowledge was in the April conversation or the July conversations, then it should have been rejected on that simple ground by Mr Justice Gray and not relied on by the Full Court?
MS POWELL: All of it should have gone.
HEYDON J: So we never get into any hearsay question or ‑ ‑ ‑
MS POWELL: No. We do not even have to go down the hearsay path. It all goes. If it is not esoteric, it cannot get in.
GLEESON CJ: What was the ground upon which the Full Court ruled that the conversations of 8 and 9 July were inadmissible?
MS POWELL: I think it was that they could not be esoteric ‑ ‑ ‑
GLEESON CJ: Yes.
MS POWELL: ‑ ‑ ‑ by reason of the passage of time.
HEYDON J: But had there been publicity between, say, 4 April and 8 July, on the news or in the newspapers?
MS POWELL: There was no evidence of that, so I cannot answer that question.
GLEESON CJ: Perhaps if you could take us to that part of the reasoning of Justice Lander where he rejected that evidence.
MS POWELL: Certainly, your Honour. Page 2740.
GLEESON CJ: Thank you.
MS POWELL: And it was earlier on 2739 that his Honour had identified the pieces of esoteric knowledge said to emanate from 3 April.
GLEESON CJ: It is really paragraph 258, is it not?
MS POWELL: Yes, your Honour.
GLEESON CJ: So Justice Lander rejected the evidence of 8 and 9 July on the basis that there was nothing to show that by that date Zappia could not have learned of the fact that there were a certain number of gunshots and that the television was turned up from other sources?
MS POWELL: That is right. Now, the only thing which might be attributable to 3 April is the television turn up, but we say that that is ambiguous by reason of the answer at line 37 on page 1052 of volume 5:
During some point, of him turning it up, yes.
GLEESON CJ: The television had been turned up loudly?
MS POWELL: Yes.
GLEESON CJ: It was going loudly when the cleaner found them the next day?
MS POWELL: That is right.
GLEESON CJ: Zappia says to Simoniuk on 3 April that your client turned the television up loudly?
MS POWELL: That depends on how you interpret that answer at line 37 of 1052.
GLEESON CJ: If was open to that interpretation by the Court of Criminal Appeal, then that is an indication of esoteric knowledge, is it not?
MS POWELL: That is right, your Honour, but we say that that conclusion cannot be drawn safely, particularly as the Court of Criminal Appeal made the error of what the content of the 3 April conversation was in that it included the three shots and the gun jamming.
GLEESON CJ: What did the trial judge say about the conversation of 3 April?
MS POWELL: I will find that for your Honours. The references to the evidence are at, firstly, 2600 and then at 2612. I am just trying to find where he actually makes the finding that they disclosed esoteric knowledge.
HEYDON J: There is a conclusion at paragraph 360 which is on page 2659 ‑ ‑ ‑
MS POWELL: Thank you, your Honour.
HEYDON J: ‑ ‑ ‑ that on 3 April and on 8 and 9 July Mr Zappia disclosed esoteric knowledge of the deaths. But do you know if there is any passage where the trial judge actually analysed closely the transcript on page 1052 and 1053?
MS POWELL: Only those passages I just took your Honours to where he just sets out the evidence.
HEYDON J: He just quotes them.
MS POWELL: I do not recall any specific analysis or, indeed, even any – there is certainly no reference to there being any ambiguity about when the esoteric knowledge might have been ‑ ‑ ‑
GLEESON CJ: In paragraph 185 on 2601 he records the Crown’s submission, which he accepts in paragraph 360, and then he gives a footnote to paragraphs 203 and 204.
MS POWELL: That is right. That is the 8 and 9 July conversations.
GLEESON CJ: He says that those conversations provide further evidence of Zappia’s esoteric knowledge. That can only be further to the conversation of 3 April.
MS POWELL: That is right, and if your Honour looks at what his Honour has included under the topic, if you like, of the meeting of 3 April, his Honour has included in that passage in paragraph 184 all of the information.
GLEESON CJ: So, rightly or wrongly, the trial judge concluded, amongst other things, that the evidence of the conversation of 3 April provided evidence of esoteric knowledge of Zappia?
MS POWELL: That is right. Yes, your Honour, that is correct.
GLEESON CJ: But, of course, the relevance of Zappia’s esoteric knowledge was related to the finding that Zappia and the appellant were together at the material time?
MS POWELL: That is right. You have to take the esoteric knowledge, then you go to the records of interview. We say you wrongly use Zappia’s interview to establish that they were together at all times and you wrongly use Zappia’s interview to say they gave a false alibi of being at the Q Club by reason of the fact that he says he had the conversation with the other people there right at the time of arrival.
GLEESON CJ: Well, at page 2627 in paragraph 252, the trial judge found, at line 24, that:
the [appellant] and Mr Zappia arrived together –
at the Q Club –
at some time between 2.30 am and 3.00 am on 3 April 2000.
MS POWELL: That is right, and if your Honour reads on, that is what he has said in his record. He says:
Mr Zappia did not arrive at the Q club at or about 11.00 pm –
with the appellant –
on Sunday 2 April 2000 as the accused asserted in his record of interview. I find that the accused and Mr Zappia arrived together at some time between 2.30 am and 3.00 am on 3 April 2000. I am satisfied that Raymond Kamleh introduced the accused and Mr Zappia soon after their arrival to others at the Q club.
There is only one source for that finding.
GLEESON CJ: But if you cannot shake the finding that the accused and Mr Zappia arrived together at some time between 2.30 am and 3.00 am on 3 April ‑ ‑ ‑
MS POWELL: I can, your Honour.
GLEESON CJ: I was going to say, if you cannot shake that finding, then there is plainly an inference that they were together at the time of the killing.
MS POWELL: I can shake it, your Honour, because this is the demonstration of the use of Zappia’s record of interview for the truth of what it says. Nowhere in Kamleh’s interview did he say that he was speaking with Kamleh and the friends at the time of their arrival. The record of interview is silent on that topic. All that Kamleh, the appellant, says to the police is that some time that night.
GLEESON CJ: Just a minute. There is a telephone conversation referred to in the evidence of Ms Stewart in which she says that at 1.18 am on 3 April she spoke on the mobile telephone that we have been talking about with a man who described himself as Jamie.
MS POWELL: Yes.
GLEESON CJ: That is the way your client described himself.
MS POWELL: Not evidence of the fact that that is Jamie.
GLEESON CJ: Well, is it not some evidence of the fact that that was your client?
MS POWELL: That can only be that she was talking to a man who named himself Jamie.
GLEESON CJ: Yes, but what is the inference you draw from the evidence that the man named himself Jamie? Is it not an available inference that it was your client?
MS POWELL: It may be. It cannot be evidence of the truth of the matter, so standing alone it cannot be any ‑ ‑ ‑
GLEESON CJ: Well, there is a whole lot of evidence to be considered, but the mobile phone was in the possession of Rasti at 1.18 am on 3 April.
MS POWELL: That is right.
GLEESON CJ: And Rasti dies sometime between 1.30 and 3.00. The witness Stewart speaks on that mobile telephone to somebody who calls himself Jamie and who is in the presence of Rasti at 1.18 am.
MS POWELL: Who, she has some recollection, might have said Jamie. I think it is not as positive as that. Perhaps I need to take your Honours to that.
GLEESON CJ: And there is evidence that Jamie and Zappia are together at the Q Club later on the morning of 3 April.
MS POWELL: Yes, your Honour.
GLEESON CJ: Suppose that instead of saying they arrived together at some time between 2.30 am and 3.00 am on 3 April, Justice Gray had said, “I find they arrived together at some time between however long it takes to get from these apartments to the Q Club after 1.18 am and 3.00 am”.
MS POWELL: But your Honour, there was no evidence, apart from the witness Townsend, who was on the door, who said they arrived at about 12.30 am and saw them about 12.30 am – there is simply no evidence of when these two arrived at the Q Club. There is evidence of them being at the Q Club.
GLEESON CJ: I am putting for your comment this. It is common ground that they were at the Q Club in the early hours of the morning.
MS POWELL: Yes.
GLEESON CJ: Let it be supposed that the trial judge inferred that the person who spoke on the mobile telephone at 1.18 am at the apartments was your client. Could not the trial judge then infer that your client and Zappia arrived sometime between 1.18 am and 3.00 am?
MS POWELL: If he used the evidence of Stewart, that the man talking on the phone who said he was Jamie was the appellant, yes.
GLEESON CJ: Well, how did he use the evidence of Stewart?
MS POWELL: Perhaps I will take your Honours to the evidence, first of all. It appears in volume 4, page 866.
KIRBY J: Ms Powell, I have waited for an hour. I feel as though I am back in the Court of Criminal Appeal. Do we come to a point of principle that is appropriate for the High Court of Australia at some point, or are we simply re‑examining the matters that were gone over in the Court of Criminal Appeal? I mean, I am beginning to wonder what the special leave point in this case was.
MS POWELL: The special leave point, we say, your Honour, is this. The trial judge used the record of interview of the appellant in this way. He said it was lies, and it was lies told out of a consciousness of guilt. Then his Honour and the Court of Appeal turned around and said, having found that his lies were told out of a consciousness of guilt, “We will now use it against you, because we will import into it what Zappia said. In other words, we will interpret what you said, together with what Zappia said, and, if you like, import over to it, we say, facts asserted by Zappia, not by the appellant, and we will say there is a concocted alibi which establishes common purpose and imputes to you all of the esoteric knowledge of Zappia”.
So we are damned if we do, and damned if we do not. We are told that we are guilty because of consciousness of guilt, and then our out‑of‑court statement is combined with another out‑of‑court statement to prove common purpose.
HEYDON J: A crisper way of putting your point, the character of your point which Justice Kirby is trying to find out about, is in paragraph 5.15 of your written submissions, is it not?
MS POWELL: Yes, your Honour.
HEYDON J: It is a point about circumventing the hearsay rule by a sort of piece of legerdemain, and you only get to it if you fail on this argument you have been putting for the last half hour or so about the jumbling of the April conversation with the July conversations.
MS POWELL: That, and also – albeit that it is said that the Zappia interview is only used for proof of the word “said”, it really, by using his assertion of time of arrival, by using his assertion of “I stay with Kamleh at all times” – that is being used for purposes which offend the hearsay rule as well.
HEYDON J: Yes, that is so, but that problem would be sidestepped if this Stewart conversation can be used in the way the Chief Justice has been suggesting. Where is that conversation?
MS POWELL: That conversation is in appeal book 4 at page 866. Now, this witness referred to the male deceased as “Isac”, so that there is no confusion about who she is talking about. At about line 21:
Q. Can you tell his Honour about what time it was when you got that last one you say which was the longest one –
A. It was around 1 o’clock at night.
Q. In that conversation, who were you talking to.
A. I was just talking to Isac and somebody and then I had a very brief conversation with another person that I didn’t know.
So it sounds like there are three people that she is talking to –
Q. How was it you came to have a brief conversation with another person that you didn’t know, can you tell his Honour how that happened.
A. I’m not quite sure how it happened. Like I don’t remember if he said ‘Do you want to speak to someone else’ or if he just passed it to me, I don’t know, I can’t remember.
Q. But you did speak to somebody else.
A. Yes.
Q. Did that person identify themselves.
A. I’m not sure. I’m not sure if I asked his name and he didn’t respond or I just couldn’t remember his name, but I remember thinking – I had the impression I remember thinking maybe it was Jamie.
Q. Was it a male person you spoke to.
A. Yes.
Q. So you can’t remember whether you asked him or he told you his name, is that what you are saying.
A. Yes.
Q. And you had the impression, did you say, that his name was Jamie.
A. Yes
Q. Was that from something he said.
A. No. I don’t remember how I remember it was Jamie. I just remember when they said ‘Do you remember his name’ and then ‘Jamie’ came to my head and I said ‘Possibly Jamie’.
So the evidence is there, but it is not very recent.
GLEESON CJ: What did the trial judge make of it? What was the finding of fact?
HEYDON J: I think it is on page 2597 of volume 11. The conversation is set out.
MS POWELL: That is where the evidence is set out. Where is the finding? Page 2616, I am grateful to my friend:
I accept her evidence as to the content of her conversations with Mr Rasti and with the person she believed might have used the name Jamie –
I do not think his Honour makes anything more of it than that.
GLEESON CJ: Thank you.
MS POWELL: If I can take your Honours to page 2732, the finding of the Court of Appeal with respect to concocted alibi and lies told out of consciousness of guilt, his Honour Justice Lander from line 30 sets out the trial judge’s findings that your Honour the Chief Justice took me to just a little while ago, including what we say is the impermissible finding on admissible evidence, that is, that the accused and Mr Zappia arrived together at a certain time. We say that there was simply no evidence, apart from what your Honour has said about the Jamie conversation. There was no admissible evidence against the appellant as to when he arrived. The only eyewitness to that was Brad Townsend who put it at 12.30 am when he saw him at the door.
HEYDON J: What precise time was Mr Zappia sighted on the night of 2 and 3 April going into the apartments?
MS POWELL: One o’clock. Yes, it was almost 24 hours after the first sighting.
HEYDON J: I know you oppose this, but if the proposition is that your client and he were in each other’s company constantly over those two or three days, that rather supports the trial judge’s finding, does it not, as to time of arrival, because they were there at one o’clock?
MS POWELL: Yes. There is no doubt that there is evidence that these two are together, but can it be excluded with certainty that Zappia did not go to this apartment with someone else? The alibi which the appellant gives to the police might be an alibi to protect himself, it might be an alibi to protect a third party, it might be an alibi to protect Mr Zappia. It might be that Mr Zappia went off to the apartment with someone else who is not identified. The process itself, we say, assuming facts from Zappia’s statement, importing Zappia’s knowledge to the accused by reason of the concocted false alibi, is a bootstraps argument. It pulls itself up by saying, “Well, what Zappia asserts goes to you. You can wear that, you can carry whatever guilt he ‑ ‑ ‑
GLEESON CJ: Come to the point of principle. Let it be supposed, just for the moment, that the trial judge and the Court of Appeal were correct to infer that at all relevant times Zappia and your client were in one another’s company in the early hours of the morning of 3 April. In particular, let it be supposed that they were right to infer that between 1.30 and 3.00 on the morning of 3 April they were together. What would then be the position of the admissibility, in evidence against your client, of the three lots of statements made by Zappia, the subject of the notice of appeal?
MS POWELL: If they were truly esoteric knowledge, is your Honour putting to me? If they truly displayed esoteric knowledge, the three? Sorry ‑ ‑ ‑
GLEESON CJ: No, if they demonstrated that Zappia was present at the crime.
MS POWELL: Well, to go back to the three complained statements, on the propositions that your Honour is putting, if the 3 April conversation did disclose esoteric knowledge, then yes, that would be admissible.
GLEESON CJ: Let me put it slightly differently, to avoid some of the evidentiary and factual arguments you have been involved in. Suppose that Zappia had said in the absence of your client to somebody after the killing, “I, Zappia, was present at the killing”. On the factual assumption about the people being in one another’s company that I have made, would evidence of that statement by Zappia be admissible against your client?
MS POWELL: No, it is simply a narrative statement after the event. It could not go in under the common purpose rule. It does not display any esoteric knowledge. It is simply a post‑narrative assertion of fact out of court by Zappia, inadmissible. Admissible against Zappia, not admissible against the appellant.
GLEESON CJ: Now, suppose that what Zappia had said was – at a time when he could not have known this unless he was there – “This is the way that those people met their death”, and then describes the manner of the killing in a way that he could not have learnt from anybody else. Would that be admissible against your client?
MS POWELL: It could be, if the conclusion could safely be drawn that they were together at all times.
GLEESON CJ: That is the assumption on which I am asking you the questions.
MS POWELL: Yes.
GLEESON CJ: Now what is the difference between the two examples I have given you, one of which you say is admissible and one of which you say is inadmissible?
MS POWELL: Because the latter is simply a narrative of something that happened. The other cannot be admissible unless you add to it a lie told by somebody about where they were with Zappia. I am not making myself clear. I was assuming more, perhaps, from your Honour’s proposition than I did. I was assuming that, coupled with the statement of true esoteric knowledge by Zappia, there was the ability to say that (a) Zappia and the accused were together at all relevant times, and (b) that Zappia and the accused had formed a common purpose to lie about where they were.
GLEESON CJ: No. I am asking you to make the following factual assumption, that the evidence shows that Zappia and your client were together at all times between 1.30 and 3.00 on the morning of 3 April.
MS POWELL: Yes.
GLEESON CJ: That is all that I am asking you to assume. Then I want you to suppose that there is evidence that Zappia said to somebody, “I was present when these people were killed”.
MS POWELL: Yes.
GLEESON CJ: Alternatively, I want you to suppose that there was evidence that Zappia said to somebody, “This is the way in which these three people met their death”, in circumstances where he could not have known it unless he was there. As I understand your answer, you say that statement 1 is inadmissible and statement 2 is admissible.
MS POWELL: I am not saying that. I say they are both inadmissible, unless there is the further evidence, admissible against the appellant, that he and Zappia have a common purpose about all of this. Common purpose to lie, common purpose to ‑ ‑ ‑
HEYDON J: In other words, you are making a ‑ ‑ ‑
HAYNE J: Let us leave aside the common purpose complication you seek to introduce. What is the distinction you draw between the two cases?
MS POWELL: I do not any longer, your Honour.
HAYNE J: What is the rubric “esoteric knowledge”, so frequently used in this case, encompassing? What is the principle that is said to be engaged under that head?
MS POWELL: Obviously, esoteric knowledge can be used to infer guilt of the person who displays it. The question of whether esoteric knowledge of one party can be attributed to another is only in very special circumstances.
HAYNE J: I thought it was a proposition that ultimately might be said to find its root in the distinction between the purpose of adducing the evidence. Is it adduced for the purpose of demonstrating truth of the content of what was asserted, or is it adduced for some other purpose?
MS POWELL: It is adduced for the purpose of showing, displaying, manifesting the esoteric knowledge in the mind of the speaker.
KIRBY J: It surely goes to reliability.
MS POWELL: Yes.
KIRBY J: If only by being there the person could know, then it elevates what might otherwise be hearsay into reliable as to truth. The law is searching for a way, as you yourself said, to be very satisfied to admit this evidence, contrary to a primary rule, but, because it becomes very convincing and reliable, it is allowed as an exception. Is that not what is at work here?
MS POWELL: I do not think either the primary judge or the Court of Appeal regarded it as an exception to the hearsay rule. In this case, it was not admitted as such.
KIRBY J: What do the academic writers – how do they classify it? How is it dealt with under the uniform Evidence Act?
KIRBY J: Just going back to Ms Mouroufas, she has the conversation with her friend at 1.19 and then she says she stayed for 15 minutes, arriving at 1.30 at the Q Club, and after that she met Raymond who a bit later introduced the appellant. The question is the time between those steps because the judge found it was at 2.30, and it is an hour.
MS ABRAHAM: He has accepted that they were there about an hour, Ms Mouroufas was there for about an hour, so that is why he said 2.30 to 3.00. He is obviously not being precise but, with respect ‑ ‑ ‑
HEYDON J: No, he says that one hour before she left, which was when the club closed at 4.00 am, there was a meeting, ie, at 3.00 am, so that is why he fixes 3.00 am as the latest time they would arrive at.
MS ABRAHAM: And, indeed, one of the other witnesses, Ms Kucera, talks about meeting these people, if memory serves, about an hour after she got there.
KIRBY J: Did she say she left at the time the club closed?
MS ABRAHAM: Ms Mouroufas?
KIRBY J: Ms Mouroufas.
MS ABRAHAM: Yes, they were there until the end, basically. So, in relation to that timing, he actually relied not just on Ms Mouroufas but also, whilst he said that Ms Kucera, who was with Ms Mouroufas, in terms of the actual time was not reliable, timeframes in terms of an hour or so were accepted.
HEYDON J: What answer do you make to the submission that while the appellant may not have been seen until quite late, he might have been there earlier without being seen?
MS ABRAHAM: Your Honour, the learned trial judge was entitled to take into account all the evidence in this case. That includes not just the evidence of the Q Club which, in the Crown’s submission, if it is accepted that that is the creation of a false alibi, say that you have seen them here at the club, which would not have happened but for the fact they were not there.
HEYDON J: So you say (1) false alibi and (2) the identification at 1.00 am at the flats and (3) Ms Stewart’s phone call, things like that, you rely on?
MS ABRAHAM: Yes, and the admission by Kamleh to Loader, the DNA fingerprints, lack of the mobile telephone. The interview with the police between Kamleh and the police was that he arrived at the same time as Zappia, they arrived together.
Your Honour, the Crown also does not accept, just talking about the interview, the proposition that it is not clear from the interview that they were together the whole time. The Crown says that is just not correct. If one reads the interview – I do not take the Court to it, but the relevant passage commences at 2707 of appeal book 11 – it is obvious that what is conveyed and what is intended to be conveyed is that they were together the whole time. That is, indeed, what was found by the trial judge in paragraph 360 at appeal book 2659 and the Court of Appeal, at appeal book 11 at 2707, says it is quite clear that is what the interview is conveying. So those findings clearly were open.
GLEESON CJ: The appellant never gave evidence but he told his story in his record of interview and it was fundamental to his story that he was in the company of Zappia at all relevant times. The moment somebody gives evidence of seeing Zappia at the Grand Apartments at 1 o’clock the story starts to raise some problems for the appellant.
MS ABRAHAM: Absolutely.
KIRBY J: And with a shorter person but who cannot be positively identified.
MS ABRAHAM: Absolutely.
KIRBY J: But not disidentified.
MS ABRAHAM: No, and the Crown says when one reads that evidence of Mr Ievins it has clearly not, as my friend suggested, been taken out of the equation; quite to the contrary, he simply cannot say one way or the other.
GLEESON CJ: I think that this point was made in Festa’s Case, but it is relevant that the person he saw in the company with was not a tall woman, it was a short man.
MS ABRAHAM: Yes. Your Honours, that brings me to the conversations that have been referred to in the general terms esoteric, the esoteric conversations after the event. They also were not ‑ ‑ ‑
KIRBY J: Where does that phrase “esoteric” derive from? Who was the judge who first used, or misused, that expression? It is not the usual use of the word “esoteric”, which means, as I understand it, something exotic and theoretical.
MS ABRAHAM: Your Honour, I am not sure where the phrase come from. That is clearly how it has been used in this case, the terminology.
KIRBY J: Here it has been used as evidence which the witness could not have known of had the witness not been present at the crime scene at the relevant time.
MS ABRAHAM: Absolutely. Just like when your Honour the Chief Justice made the comment, evidence linking Zappia to the scene, this is other evidence that is capable of linking Zappia to the scene if it can be proved that he had knowledge that he could not have obtained some other way. The Crown says that use is clearly not a hearsay use, that is original evidence. Again, Walton and the like talk about a state of knowledge being proved by what is said.
In the Crown’s submission, there was clearly evidence that Mr Zappia had knowledge fairly shortly after the incident which the trial judge accepted could not have come from any other source but for him being there. If that is the case, then clearly that is relevant because of the admission that the two were together and, indeed, the other evidence that puts the two of them together at the relevant time.
Your Honours, there has been a complaint about the manner in which both the trial judge and Court of Appeal dealt with these conversations on the basis that it is said that the conversation of 3 April did not contain all the matters that the Court of Appeal said that the conversation contained. Therefore, my friend says, that conversation cannot be relied upon. It is significant, the Crown says, that whenever these conversations have been referred to they are referred to as the conversations of the 3rd, the 8th and the 9th. The Court of Appeal, in talking about the conversation of the 3rd, quotes the evidence, which includes the passages about the number of shots, et cetera. Indeed, so does the trial judge when he talks about it as the 3rd, cites that evidence. In the Crown’s submission, that is the evidence that is being taken as being the esoteric knowledge.
GLEESON CJ: Yes, but your problem about that is that unless at least some of that evidence can be shown to have come out of the conversation of 3 April, the Court of Appeal said that by the time the later two conversations took place many people would have known those facts and the knowledge displayed was, therefore, not esoteric; it was common knowledge.
MS ABRAHAM: Except this, your Honour, there is no suggestion that it is either the 3rd or the 8th or the 9th. It is not that there are three conversations. It is not the 3rd, therefore, it must be in one of the inadmissible conversations because it is too remote. The information that the witness, Mr Simoniuk, gave when asked about the 3rd – and I accept that there are some difficulties with the way some of the questions were asked – some of that information is clearly not on the listening devices that record the 8th and the 9th conversations. Regardless of whether it was that night or the next time that there was talk about three shots, for example, in the Crown’s submission, one thing is for sure and certain, and that is that on the 3rd there is the conversation about the TV being turned up.
HEYDON J: Not for sure, “During some point, of his turning it up”.
MS ABRAHAM: In the Crown’s submission, later in that transcript it becomes clear that he is – when he is asked about another topic, he says he cannot be sure if it is then or later but, in the Crown’s submission, the way that answer was given prior to that indicates that that was said. In relation to the shots, for example, he said he could not be sure.
GLEESON CJ: It suffices for your purposes to establish that it was open to the trial judge to conclude as a matter of fact that in the conversation of 3 April he referred to the TV being turned up.
MS ABRAHAM: Absolutely, and, in the Crown’s submission, it clearly is open and that piece of information is clearly knowledge that he could not have gained, the Crown says, but for him being there, so the inference is open from that, his presence and hence the link with Mr Kamleh.
Your Honours, the evidence was led in a rather unusual fashion, as has already been commented on. Clearly, there was no objection to leading and I must confess I assumed that one of the reasons why that was so was so there was no reference to the appellant, because when one reads the transcript he has not been referred to.
HEYDON J: It was to keep the witness on the track. The written statement obviously was damaging in some ways and the agreement between counsel involved the witness being kept on the track.
MS ABRAHAM: Basically. That is how it reads. So it has led to a result that does make it somewhat more difficult on occasion for a witness and clearly did in this case. In the Crown’s submission, the reasoning process employed in relation to the state of knowledge of Mr Zappia after the event is one that does not breach the hearsay rule, is in accordance with Walton, was not breached here, it was not used inappropriately here and what we are dealing with here is really, not just this ground, but the other grounds, an application of well‑established principles to the facts of this particular case, and on the facts of this case clearly that was open.
Of course, for it to be relevant, the Crown had to prove a number of steps, had to prove the knowledge, had to prove he could not have got it from some other source and had to prove the link between he and Kamleh at the relevant time. Without being able to prove that, obviously it was not relevant, but clearly the Crown could do that in this instance.
Just one other factual matter, a question raised by your Honour Justice Kirby about the motive for the murder. There was no specific evidence about a motive. At some stage there was talk of the mobile phone being a motive, but that was really abandoned. The Crown said it had to do with the relationship, no doubt, between them and there was evidence clearly of the relationship being such that, whilst they were friends, the deceased, Rasti, treated Mr Kamleh in a particularly demeaning way, to put it nicely, so to speak, and that there had been a number of incidents in the last month, say, leading up to the murder.
GLEESON CJ: We do not have the remarks on sentence, do we?
MS ABRAHAM: No.
GLEESON CJ: They are sometimes quite revealing about the propensities of people involved in activities like this.
GLEESON CJ: Thank you, Ms Abraham. Yes, Ms Powell.
MS POWELL: Just a couple of short matters. My friend raised the absence of the mobile phone being discarded. Can I just draw your Honours’ attention to our submissions at paragraph 4.22, where the appellant – there is a witness who is called who says the appellant is telling her after the event that the police have the phone, and also, in his record of interview, he asks the police whether he can have his phone back. So insofar as the relevance of the phone and the appellant is concerned, it might be relevant as far as Zappia is concerned, but not as far as the respondent is concerned.
The fingerprint on the newspaper; it was the Saturday edition of the Advertiser newspaper – there is no Advertiser newspaper on Sunday – and that evidence appears at AB 4, page 757. It was for 1 April, which was the Saturday – the appellant said in his record of interview that he saw the deceased on the Saturday. So there is nothing significant about the newspaper. The fingerprints and the DNA on the drinking glass my friend raises as being significant. That is, again, Zappia’s fingerprint and DNA on the drinking glass, at page 2566, not the appellant’s. My friend went to the analysis of the Mouroufas evidence and how his Honour preferred that ‑ ‑ ‑
KIRBY J: I am sorry to interrupt you, but I thought we were told that there was Zappia’s DNA but that there was some DNA which was consistent with your client.
MS POWELL: Yes, I think a minor component there.
McHUGH J: Minor.
MS POWELL: That is true. Thank you, your Honour. My friend went to the Mouroufas evidence about when that conversation and the introduction to Zappia and the appellant took place. Of course, the timing of that does not mean anything at all unless you say that that conversation occurred when they arrived, and the only place that you would derive that from is Zappia’s record of interview. If the Court pleases.
GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn until 2.00 pm to reconstitute.
AT 12.37 PM THE MATTER WAS ADJOURNED
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Criminal Law
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Evidence
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Appeal
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Sentencing
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