Kamleh v The Queen

[2004] HCATrans 130

[2004] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A260 of 2003

B e t w e e n -

JAMIL YOUSEF KAMLEH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 10.42 AM

Copyright in the High Court of Australia

MS B.J. POWELL, QC:   May it please the Court, I appear with my learned friend, MR C.J. CALDICOTT, for the applicant.  (instructed by Caldicott & Co)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR S. McDONALD, for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

GLEESON CJ:   Yes, Ms Powell.

MS POWELL:   In convicting the applicant of the two murders in this matter, Justice Gray, being the judge at first instance and hearing the mater as trial by judge alone, and also the Court of Appeal relied on what we describe as two tranches of evidence.  The first was the evidence of a confession to a prison informer, which arose during the course of the trial itself, and the second was third party evidence to a witness by the name of Simoniuk and to police officers in a record of interview of things said by a man called Zappia.

Now, it was the Crown case that Zappia was the applicant’s accomplice at all times.  That third party evidence was admitted as both an exception to the rule against hearsay and as evidence of the words spoken such as not to offend the rule either by reference to it being evidence of intention or some other way round the rule, or at least not round the rule, but for different purposes.

One category was said to be Zappia’s intention.  The second was a statement of Zappia said to be made in furtherance of common purpose.  The third was a statement said to prove Zappia’s esoteric knowledge in respect of the murders in which it was said ‑ ‑ ‑

GLEESON CJ:   At 344 and 345 of the application book in the reasoning of Justice Lander there is a line of argument that, as I understand it, was adopted both by the trial judge and by the Court of Appeal, and that was that because your client asserted by way of alibi that he was in the company of Zappia in what might be generously described as an innocent situation at the relevant time, evidence that tended to demonstrate that Zappia was at the murder scene implicated your client.

MS POWELL:   That is so.

GLEESON CJ:   Is one of the arguments on which you seek to rely that, if you reject your client’s assertion that I have just summarised as a false alibi, there is a measure of inconsistency between doing that and treating the false alibi as an admission that your client was in the company of Zappia at all relevant times?

MS POWELL:   Exactly.  The false alibi was used for one purpose said to be false, but relied on by both the judge at first instance and the Court of Appeal to establish the fact, it was said, that he was with Zappia at all times and then all of Zappia’s esoteric knowledge with respect to the murder was effectively imputed to the applicant such as to put him at the scene of the murder.  We say that that is a serious concern and a serious matter which should be considered, the use of the third party evidence, as to the special leave point, because not only is your Honour ‑ ‑ ‑

HAYNE J:   Those issues are raised, are they, by grounds 2.5 and 2.6 of the draft notice at 355, is that right?

MS POWELL:   That is right, your Honour.  Your Honours, it is to be remembered in this context of the introduction to the trial of this third party evidence for various purposes that this was a case where there was no evidence of admissions apart from to the prison informer, there was no evidence of motive, there was no articulation of the common purpose, which brought in the evidence of Zappia for testamentary purposes, other than to say that it was to settle something with the deceased which involved the use of a firearm.

The description of the common purpose is, in fact, derived from the conversation called “the McDonald’s conversation”, which your Honour the Chief Justice referred to at page 344, which we say was inadmissible, in any event, against the applicant.  The finding as to the use of the weapon is derived from what is called “the Hectorville conversation” on page 344, again, a piece of evidence which we say was not admissible.

Particularly important is that there was no evidence of identification of the applicant at the scene at the relevant time.  Now, in respect of identification of the applicant at the relevant time, both the trial judge and carried forward by the Court of Criminal Appeal was a mistake as to the interpretation of the evidence of a witness by the name of Ievins, because Mr Ievins’ evidence, rather than being inculpatory of the applicant, rather was exculpatory and rather tended to suggest that he was not at the scene at all.

We say that that is a significant matter in this application for special leave.  This was trial by a judge alone, as I have already said.  We say the trial judge and the Court of Appeal were not only wrong about the evidence said to put the applicant at the scene immediately before the murders, but they were wrong about another significant piece of evidence, which I will come to in a moment.

Now, this Court has considered in Fleming’s Case whether the proviso should operate in circumstances where there has been a wrong decision on a question of law.  Your Honours will remember that was a failure of a judge to refer to a warning in sexual cases.  But it is not considered whether the proviso should operate where evidence has been misconstrued by a trial judge or where there is no evidence at all to support a particular finding and, in fact, we say to the point where this evidence says the opposite of what the court found it to have said, or where the evidence has been wrongly admitted.

In other words, what we say is the special leave point in this matter is, could it be simply left on the basis that the trial judge found proved beyond reasonable doubt the confession made to the prison informer which we say contained no esoteric knowledge in any event, but could a Court of Appeal say, “Because that has been found beyond reasonable doubt and it is a finding which has been made on credit by the trial judge, despite these other significant evidentiary problems in the way the matter was approached, nonetheless, we will apply the proviso and allow the conviction to stand simply because the judge accepted a prison informer beyond reasonable doubt”.

We say that that is not an acceptable situation and the court is not permitted to do that because, although it is trial by judge alone and although the reasoning of the judge is obviously patent, nonetheless there is, we say, no way of knowing how all of the evidence might have computed together to lead to proof beyond reasonable doubt in the mind of the trial judge.  It may well be that he took inadmissible and wrong evidence to account in some way corroborating the prison informer, being well aware, as he was, and he said in his judgment being well aware of the dangers of accepting that evidence as expressed by this Court in Pollitt’s Case.  But there is no way of knowing whether, in fact, other pieces of evidence which we say were wrongly admitted or were wrongly construed might not have computed in the mind of the judge.

We say that the first error which the trial judge made, and we say also operated through to the Court of Criminal Appeal, which made the same significant error and used that error specifically in the application of the proviso in the case, was that they both operated on the assumption that a witness Ievins identified the applicant as approaching the deceased’s apartment on the Sunday morning about 15 minutes to half an hour before the murder.

The trial judge found at 91 of the application book that Mr Ievins’ evidence, coupled with the evidence of another witness who had seen the applicant the night before and had positively identified him, had the tendency to prove that he was at the scene at the time of the murder.  That was not a finding open on the evidence.  It was a ground of appeal and it was argued before the Court of Appeal because it was simply not open on the evidence and it was a misunderstanding of what the witness said and what it proved.

The Court of Appeal dealt with that evidence at pages 299 to 300 of the application book and basically they set out what the evidence was.  Significantly, at 302 at paragraph 130 his Honour Justice Lander says:

The appellant has not complained –

with respect to the identification evidence –

about the directions which his Honour gave himself or the findings which he made.

The evidence of identification is further circumstantial evidence which may be used to advance the prosecution case.

That was simply wrong.  It was complained about and it was a significant matter of complaint.  It is said in the respondent’s outline that Justice Lander did not act upon an incorrect description of the effect of this witness’ evidence.  That is not so.  He said at application book 188 and 332 that the witness saw the applicant “again at 1.00 am” on the Sunday morning at the apartments.  At 344 Justice Lander repeats that the witness identified the appellant that morning. 

At 310 he is fundamentally wrong in the conclusions that he draws from the evidence.       That error could not be more plain than from the heading on the top of page 310 where he says “The Appellant is Seen on 3 April”.  That is simply wrong.  The real danger of this, we say, is manifested in the judgment of Justice Debelle at 280 where he deals with the proviso and he says, in reference to the prison informant’s evidence, it:

should have been admitted and can be relied on, and given that there was no ground for interfering with the conclusion of the trial judge as to the identification evidence, this Court is in almost as good a position as the trial judge to determine the guilt of the appellant.

Well, there was a challenge to the identification evidence.  It was a valid challenge in that both courts were completely wrong in their interpretation of the evidence, but it shows how the evidence of identification was used to corroborate the prison informer’s evidence and, we say, manifest the mistake that we say such that the application of the proviso was not warranted.

The second important error was with respect to post‑murder conversations of Zappia with the witness Simoniuk, which your Honour the Chief Justice has already identified as appearing from page 344 and, most importantly for this argument, from page 345 under the heading “Telephone Conversations”.  It would appear that the trial judge admitted this evidence pursuant to the co‑conspirator’s rule – that appears at pages 7 to 8 and 45 to 46 of the application book – as well as for the purpose of establishing esoteric knowledge. 

Now, the Court of Appeal deals with those conversations at 345 and correctly concludes that none of those telephone conversations could have amounted to “words uttered in furtherance of the common purpose”, given that they were narrative and post the event.  What they do say at page 346 is that the latter two conversations, that is, those occurring on 8 July and 9 July, were not admissible because they were not made at a time such as to display any esoteric knowledge on the part of Zappia by reason of the passage of time.  Justice Lander in his judgment says, however, although those latter two conversations were inadmissible:

The statements made by Mr Zappia on 3 April, which are admissible, are in my opinion far more damaging in the case against the appellant than anything said by Mr Zappia on 8 and 9 July.  In particular, nothing said in the conversation of 9 July had not been said in the conversation of 3 April.

Now, the evidence of those conversations is set out at 313 in the judgment and your Honours will see that he was asked in‑chief, at about line 27:

In that conversation that you had with Mr Zappia –

this is referring to the 3 April conversation –

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, we say that is ambiguous as to what the witness has meant by “during some point”.  He is then asked whether he said that the applicant had actually shot the deceased:

I can’t say I remember.

Q.       Did he tell you what kind of gun was used.

. . . 

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.

This, we say, the significant question:

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.

And we then get the three shots and we get the positioning of the injuries to the deceased’s body and the matter that the gun jammed.  So the whole basis of permitting this evidence was esoteric knowledge, but, as his Honour Justice Lander quite rightly pointed out, by July it was too late to be esoteric knowledge.  If it all was revealed in July, then none of it was admissible as esoteric knowledge.

So that we say these two fundamental mistakes of evidence in this matter were such that the proviso should not have applied, but, in any event, we say, that apart from the proviso question, the admission of this evidence is in the context of the impermissible evidence of third party accounts, which we say are matters all deserving of consideration by this Honourable Court.  If the Court pleases.

GLEESON CJ:   Thank you.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, in the Crown’s submission it is necessary to begin with the facts because my friend has made her submissions on the basis that they really fall into two categories:  (1) the informer’s evidence; and (2) third party evidence.  In the Crown submission, that is just not so.  There was a substantial body of circumstantial evidence implicating the accused in addition to the informer’s evidence.

Some of that evidence is outlined in paragraph 5 of my outline of argument, which appears in the application book at 366.  In the Crown’s submission that evidence is important because, on the evidence, other circumstantial evidence ‑ ‑ ‑

HAYNE J:   Now, the first point you make under paragraph 5 is that:

The Applicant and Zappia were together at all relevant times.

What is the evidence that established that, other than the evidence of the alibi, ultimately said to be false?

MS ABRAHAM:   Your Honour, at about 8 to 10 o’clock the night before the two of them were together.  Mr Zappia was identified as being one of the two men that appeared at the apartments in the early hours of the morning of the 3^rd.  A phone call was received using a phone that the victim had and during that phone call – and that is the early hours of the morning of the 3^rd – a person by the name Jamie was put on the phone.  Jamie was the name that the applicant was known by.  Then by 2.30 am the two of them together turn up at the Q Club and together, on the findings, have concocted a false alibi.  They turn up there and the applicant’s cousin attempts to get people to give a false story for both of them that they had been there together.

GLEESON CJ:   Was the proposition that the applicant and Zappia were together at all relevant times a matter of inference, or was it said to have been established by admission on the part of the applicant?

MS ABRAHAM:   In the Crown case, it is both.  Clearly, there was reliance placed on the interview.  There is no doubt about that, but in the Crown’s submission ‑ ‑ ‑

GLEESON CJ:   Insofar as it is said to have been established by an admission made by the applicant, is that not an admission that was disbelieved?

MS ABRAHAM:   In the Crown’s submission, what occurred is that it was a joint false alibi, so it was not simply a finding that the applicant had made a false story, but the two of them together.  In the Crown’s submission, that finding, in light of the other evidence that put one or other of them at the premises and, indeed, puts the two together, in the Crown’s submission, there is an obvious inference that they were together throughout all the relevant time.

GLEESON CJ:   Was that the basis on which the reasoning of the trial judge and the Court of Criminal Appeal proceeded, that is, that it was a matter of inference or did they take it from the alibi?

MS ABRAHAM:   There is specific reference, without a doubt, to the question that in the interview he said he was with the co‑accused, Zappia, at all times.

GLEESON CJ:   Yes.  On page 344, in paragraph 244, it is said:

The evidence was, however, admissible . . . because it was the appellant’s case that he and Mr Zappia were never outside each other’s company over the whole of the relevant period.  I agree with that submission.

But that part of the appellant’s case was rejected, was it not?

MS ABRAHAM:   It was, your Honour, but rejected on the basis that the two of them had jointly got together and made up a false story.  In the Crown’s submission, it does not follow from that that the two of them were not together, quite to the contrary.  The nature of the finding by the learned trial judge was such that they had both needed an alibi and, in the Crown’s submission, when you come to consider it at the appellate level, one is clearly entitled to look at the other evidence that puts either Zappia or the applicant together and, in the Crown’s submission, other evidence by itself puts them together all evening.

GLEESON CJ:   Now, I have just been referring you to the reasoning of Justice Lander in the Court of Criminal Appeal, but where do we find the trial judge’s reasoning used as the basis for the reception of that evidence, or is it reflected accurately enough by what Justice Lander said?

MS ABRAHAM:   In my submission, that is how it was approached – the case was approached on the basis the defence was that they were together at all times, based on what was said to the police, and that is how the defence ran the case. 

GLEESON CJ:   If, in a murder trial, the accused says, “My alibi is that I wasn’t in Adelaide on the evening of the murder, I was in Melbourne and I was in Melbourne in the company of X” and there is evidence to establish that X was in Adelaide on the evening of the murder, does that produce the consequence that evidence tending to show that X was present at the scene of the murder in the form of out‑of‑court statements made by X is admissible against the accused?

MS ABRAHAM:   In the Crown’s submission, not necessarily so.  You would have to look at the facts of the particular case.  In this case, what the learned trial judge did was made a finding of fact that the two of them had lied out of a consciousness of guilt in making up this story.

GLEESON CJ:   Did he make a finding of fact independently of the false alibi that, by inference from other evidence, it ought to be concluded that the two of them were, in truth, together, even though their alibi was false?

MS ABRAHAM:   With respect, I do not know that he has necessarily taken those steps in his judgment.  Can I go back to a question that was asked a moment ago before I answered this one.  At paragraph 272 of Justice Gray’s judgment, which is page 92 of the first application book, it is apparent that the Crown submission was that it was not just the interview, but it is together with other evidence, of course, that they were together throughout.

HAYNE J:   And do we find the relevant finding of the trial judge at paragraph 286, page 96?  Is there more than that finding?

MS ABRAHAM:   In relation to the false alibi, no.

HAYNE J:   Or in relation to whether the accused was with Mr Zappia throughout the period in question?

MS ABRAHAM:   No, the findings that are at the end of the judgment do not specify that aspect.  A number of steps are gone through, beginning at page 116 of application book 1. 

HAYNE J:   And is the finding that they were together at all relevant times a step that underpins Justice Lander’s treatment of the evidence at page 344 paragraphs 242 and following?

MS ABRAHAM:   Yes, but in the Crown’s submission, one needs to look at where this evidence, what has been referred to as third party conversations, falls in relation to the Crown case in its entirety because both the learned trial judge and the Court of Appeal accepted the evidence of Mr Loader.  It is an admission, according to Justice Gray, of murder, that he shot the victims.  That, together with a substantial body of other evidence, in the Crown’s submission, means that at the end of the day the verdict was inevitable regardless of these conversations.

Can I just go to a couple of those pieces of other evidence because if, on the independent evidence, the two of them were together during that relevant period and if they have lied out of a consciousness of guilt, well, in the Crown’s submission, that of itself is a very powerful piece of evidence.  In addition, there is evidence in relation to a mobile phone that the applicant had lent to one of the victims.  He lent that phone to the victim on 1 April.

It is obvious from the evidence that he lent the phone and not the SIM card, a different SIM card was used by the victim.  That phone was used until the early hours of the 3^rd, until shortly before the victim was murdered.  That phone was never found, the obvious inference being that it has been taken from the premises.  The original SIM card was used clearly after that time and a mobile phone was thrown away by Mr Zappia.  So, in the Crown’s submission, that also is significant.  In addition, there are fingerprints and DNA of both, indeed, in the premises.

GLEESON CJ:   What did the evidence show was the relationship between Zappia and the applicant?

MS ABRAHAM:   Good friends.  They were clearly very close friends.  They were together, on the evidence, a lot and clearly there was a lot of contact between them leading up to and after.  So, in the Crown’s submission, what you have when you are talking in reality about these third party conversations is a couple of items of circumstantial evidence in what is otherwise an extremely strong Crown case.

GLEESON CJ:   It may be that you would wish to argue in relation to paragraph 244 on page 344 that there was an irresistible inference that these two were together at all material times because of other evidence and circumstances, but it is difficult to escape the conclusion that, as far as the reasoning of the Court of Criminal Appeal was concerned, and probably the trial judge too, it was because the appellant was asserting that he and Zappia were together that this evidence got in.

MS ABRAHAM:   Perhaps can I again put that in context.  To get this evidence in, or at least part of it, it is in furtherance of a joint enterprise.  So what the learned trial judge has done is found that there was reasonable evidence of preconcert and, in the Crown’s submission, that includes evidence of Loader and other circumstantial evidence that puts the applicant at the flats at the relevant time.  The Crown does take issue with my friend’s interpretation of the identification evidence.

GLEESON CJ:   But the Crown was seeking to establish that the applicant was at the flats at the relevant time by establishing that Zappia was there.

MS ABRAHAM:   Yes.

GLEESON CJ:   The significance of showing that Zappia had esoteric knowledge of what was going on at the time of the murder was that it placed Zappia there, but from the point of view of the case against the applicant, the significance of Zappia being there was that the applicant and Zappia were together at all relevant times.

MS ABRAHAM:   Of course, but, of course, there was a substantial amount of evidence independently of that circumstantial evidence on the Crown case and, indeed, an admission that the applicant was there.  So it was not simply this piece of esoteric knowledge or this piece of intention, with respect.  That, in the Crown’s submission, is quite minor in the scheme of things.

In the Crown’s submission, what is important is the evidence of the observations of the two men at the apartments at the relevant times.  What is important is that the mobile phone that was lent by the applicant was missing.  What is important is that in relation to the time shortly before the murder a phone the victim had, a man by the name of Jamie was speaking on it.  What is important is that before they were together and after they are together setting up a false alibi.

In the Crown’s submission, that has nothing to do with whether Mr Zappia at some stage has esoteric knowledge in relation to the murder.  In the Crown’s submission, that evidence and, indeed, the evidence of Mr Loader, which is an admission which is not being challenged in this Court, in the Crown’s submission, an admission to the murder.  So the evidence at the end of the day concerning what has been referred to as third party conversations is really quite limited and, in the Crown’s submission, a verdict inevitable regardless of this evidence.

Your Honours, can I make a couple of submissions in relation to the question of identification.  In the Crown’s submission, there is no error in the interpretation of the evidence in relation to the identification of the applicant at the premises.  It is a combination of evidence that leads to that conclusion.  The Court of Appeal correctly, in the Crown’s submission, has recited that evidence.  Indeed, to suggest that that evidence and, indeed, other evidence was used to corroborate Mr Loader is, in fact, just not correct.

Mr Loader’s evidence was clearly considered quite separately and was decided by the learned trial judge and, indeed, by the Court of Appeal, quite separately with the appropriate warnings being given and Mr Loader had esoteric knowledge of certain events which clearly lent weight to what he was saying.  There was no corroboration support relied on from

elsewhere.  So, in the Crown’s submission, that evidence by itself, let alone with the other circumstantial evidence, is sufficient.

In the Crown’s submission, the principles on which the third party conversations were admitted are, in fact, well established and it is simply the application of those principles to the facts of this particular case and, given the circumstances of this case, as I said, a verdict was inevitable and so this would not be an appropriate vehicle to reconsider the application of those principles.  Those are my submissions.

GLEESON CJ:   Thank you, Ms Abraham.  Yes, Ms Powell.

MS POWELL:   Just to assist your Honours with respect to the trial judge’s finding as to the false alibi, he set out the record of interview from page 16 of the application book and at page 19, paragraph 32 he makes the reference to what the accused’s claim is and I would also refer your Honours to paragraph 143 of the judgment at the top of page 45.

Of course, as my friend says, if this is a circumstantial evidence case, putting aside the Loader prison informer admission for a moment, then there is a hypothesis consistent with innocence in respect of this false alibi and that is that he is giving a false alibi for the man Zappia, but that was a hypothesis which was never considered by the trial judge.  There was the leap to the only inference being that they had got together and concocted.

My friend raises the telephone call just before the time of death with a man who said he was Jamie identifying himself.  Of course, that could never have gone in for testimonial purposes that it was Jamie speaking on the phone.  It was simply that the person who was speaking on the phone asserted that that was his name and that evidence could go no further.

My friend referred to a mobile phone being disposed of.  There was evidence from a witness by the name of Watt – and I am sorry I do not have a reference to it – who spoke with the applicant after the murder was well over and he told her that his mobile phone, which he had lent to the deceased, was now in the hands of the police.  Again, a piece of evidence quite contrary to what was suggested by my friend in terms of he being the person who removed the phone.

It is suggested that Loader’s evidence is supported by esoteric knowledge.  We agree that it was uncorroborated in any way.  We referred to it simply by reference to the way in which Justice Debelle used it in the application of the proviso, that is, to add the identification evidence to the Loader evidence.  We agree it was uncorroborated.  The esoteric knowledge which was pointed to was the fact that the applicant was supposed to have told Loader that Mr Zappia had been brought before Justice Gray during the

trial on three occasions, on three separate occasions had refused to answer questions and had been cited for contempt.

Now, in our submission, to suggest that that is esoteric knowledge is just a nonsense.  It would have been the talk of the cells below the Samuel Way Building, the talk of the remand centre, that a prisoner had three times defied a direction by a Supreme Court judge to answer questions.  To suggest that that was esoteric knowledge, in our submission, is just not to understand the way in which the prison system works.  We say that there is a real danger in the way that this matter has been approached and we say it is significant with respect to the proviso as well.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal limited to grounds 2.3, 2.5 and 2.6 in the draft notice of appeal that appears on pages 354 and 355 of the application book.

AT 11.23 AM THE MATTER WAS CONCLUDED