Mahmood v State of WA

[2007] HCATrans 479

[2007] HCATrans 479

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P22 of 2007

B e t w e e n -

DLSHAD HAMAD MAHMOOD

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 AUGUST 2007, AT 12.59 PM

Copyright in the High Court of Australia

MR G.R. DONALDSON, SC:   May it please your Honours, I appear for the applicant.  (instructed by Kott Gunning)

MR R.E. COCK, QC:   May it please the Court, I appear with my learned friend, MR M.J. WALLBRIDGE, for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

HAYNE J:   Yes, Mr Donaldson.

MR DONALDSON:   Your Honours, there are two bases upon which special leave is sought in this matter.  The first of them, your Honours, relates to unfairness by the prosecution at trial which has resulted, in our submission, in a miscarriage of justice.  The unfairness, your Honours, emerges from the following sequence of events.  Your Honours are aware that a week after the murder of Mrs Dabag, Mr Mahmood freely participated in a video walkthrough.  At the trial of Mr Mahmood, the Crown objected to the admission into evidence of all of that video except a small excerpt in which Mr Mahmood was composed.  That objection was on the basis that the video, including, of course, those parts where Mr Mahmood was visibly upset and distressed, was self-serving. 

Critical to the Crown’s case, your Honours, but disclosed for the first time in closing was the submission that the demeanour of Mr Mahmood during the walkthrough was important and showed Mr Mahmood to be “cold-blooded and clinical”, as was the murder.  This, your Honours, was a misrepresentation by the Crown of the contents of the video and was described in the Court of Appeal by Justice Roberts-Smith as “unfair”.  At the trial, your Honours, the defence sought to reopen the case to show other excerpts of the video in which Mr Mahmood was upset and distressed.  The Crown objected to that course and the court refused the application to reopen.  That is the first ground, your Honour, that that unfairness amounted to a miscarriage of justice.

HAYNE J:   It is said that the trial judge cured the unfairness by the directions her Honour gave.  Where do we find the direction or what do you say about the suggestion that the unfairness is cured in that way?

MR DONALDSON:   Your Honour, the direction that her Honour made is to be found at page 74 of the book at paragraph 28 in the judgment of Justice Roberts‑Smith.  Your Honour, before I deal with the direction, could I say to your Honours that one needs to understand that direction having particular regard to the terms of the closing submission of the Crown.  If I could ask your Honours to turn very quickly to part of that, that is at page 70 of the book at paragraph 21.  If your Honours see partway through that paragraph about three lines from the bottom:

did you notice his demeanour?  This was on 11 July, a week after her death.  Was there any emotion when he was asked about blood and so on?  Did you see any sign of emotion in that recounting?

Then in the next paragraph your Honours will see, skipping the first sentence:

You saw his reaction, his demeanour.  It was, I suggest to you, cold‑blooded and clinical and this killing was cold-blooded and clinical.

So, your Honours, the Crown’s case, as presented in closing, was that the demeanour to which the jury ought have regard was the demeanour of the accused a week after the event.  That was the Crown’s case.  You have regard to demeanour and the demeanour was the demeanour in the video a week after.  The direction that was given, your Honours, which, as I have said, was at 74 of the book, is unsatisfactory, in our submission, for the following reasons.  Firstly, her Honour, partway down the first paragraph towards the bottom, says to the jury:

Now, members of the jury, it would seem to me that it would be unwise for you to draw any adverse view against the accused because of his demeanour in the walk-through video.

So pausing there, her Honour does not take it away from the jury.  She simply says it would be unwise for them to have regard to it.  But then, your Honours, next:

There are some reasons for that.  The first is that you have only seen a portion of the video.  You don’t know what his demeanour was during the rest of the video.

But again that invites the jury to speculate about that particular matter.  Secondly, and this is the reasoning that attracted Justice Roberts-Smith:

Secondly, the video was done some seven days after the death.  It, in my view, would be more relevant if you were going to take demeanour into account to have regard to the accused’s demeanour during the video record of interview taken on 4 July ‑ ‑ ‑

HAYNE J:   Did her Honour at the outset of her charge to the jury give the usual “I give you directions about law.  I comment on the facts, but you can ignore my comments” type direction?  I assume her Honour did.

MR DONALDSON:   Yes, her Honour did.

HAYNE J:   Does it not follow that these statements in the course of the charge are her Honour’s comments, they are not directions?

MR DONALDSON:   They are certainly comments, your Honour, and not directions in relation to ‑ ‑ ‑

HAYNE J:   Does not your point then come to this, that the unfairness created by the prosecution, making the statement it did in the course of its final address, was not cured by judicial direction and absent judicial direction there was a miscarriage?

MR DONALDSON:   Yes, and it was not cured by this direction because this direction did not focus upon the Crown’s case as to demeanour which was demeanour during the walkthrough video.

HAYNE J:   The point is more radical, Mr Donaldson.  The point is this was not a direction.  This was a judicial comment about fact and the jury are told at the outset of the charge “I may comment about the facts, but you may ignore it” is I assume the general form it would have taken, would it not?

MR DONALDSON:   Yes, it did, your Honour.

HAYNE J:   There is that point of miscarriage.  Is there any other point which you seek to agitate in this Court?

MR DONALDSON:   Your Honour, in relation to the first point as to unfairness, the other point that we seek to agitate relates to Justice McLure’s judgment.  If I could ask your Honours to turn to paragraphs 155 and 156 of her Honour’s judgment at page 112 of the book because her Honour took rather a different view and her Honour’s view at paragraph 155 – your Honours will see there that what Justice McLure is saying is that she does not accept that the direction was only of marginal relevance or that it was not materially relevant and, as her Honour, if I may say with respect, correctly makes the point that it was central to the prosecution case that was being put, then – so, if I could say, Justice McLure agrees with us to that extent.  Then in 156, however, what her Honour does is to then determine as to whether the refusal to reopen was problematic.  Then what her Honour says over the page at 113 is a conclusion without expressing any basis for that conclusion.  Her Honour simply says that she is:

not satisfied that it would have been to the appellant’s forensic advantage to focus attention on his demeanour throughout the walk through video.

But expresses no reason for that whatsoever.

HAYNE J:   Yes.

MR DONALDSON:   That is the first ground, your Honour.  Could I move to the second ground, your Honours.  The second ground relates, your Honours, to an error, in our submission, on the part of the Court of Appeal in its consideration of the application of the rule in Jones v Dunkel in criminal trials.  Your Honours, this is, in our submission, a matter of significant importance and where a decision of this Court is required to resolve uncertainty that has arisen in the law following the High Court’s decision in Dyers.  Your Honours, could I briefly state for the Court what our understanding of the position of the law in different jurisdictions which has considered the matter ‑ ‑ ‑

HAYNE J:   I understand you say there is a great debate about Jones v Dunkel.  Can I bring you back to the facts?

MR DONALDSON:   Yes.

HAYNE J:   There was evidence of bloodstaining in the pocket of the trousers the applicant had been wearing at the time of the death?

MR DONALDSON:   Yes.

HAYNE J:   Was there any evidence from any witness that explained how that bloodstaining had got there?

MR DONALDSON:   No, your Honour.  There was no evidence from anywhere ‑ ‑ ‑

HAYNE J:   On what basis did counsel for the State assert to the jury the possibility that it came from the weapon?

MR DONALDSON:   Your Honour, that was in the closing submission ‑ ‑ ‑

HAYNE J:   I know where it happened.  What I want to know is, what was the evidentiary basis upon which counsel for the State could make the assertion that he did?

MR DONALDSON:   There was none, your Honour.

HAYNE J:   Is that not the logically prior point rather than the elaborated argument about Jones v Dunkel that you would wish to advance?  I understand there is the Jones v Dunkel point.  I understand you say it is important and I am not trying to shut you out of it, but what I am trying to understand is whether there is not a logically anterior point.

MR DONALDSON:   That point is logically anterior to the Jones v Dunkel point, if I can put it that way, and that must be so.  But, your Honours, there was no factual basis for the assertion by the Crown in closing that the murder weapon was placed in the pocket of Mr Mahmood.

HAYNE J:   Was there anything known or revealed, more accurately, by the evidence about what weapon had been used?

MR DONALDSON:   No, your Honour, and it was not even able to be said by the expert witness who was called whether it was in fact a knife.  It was simply a weapon that was able to cut her throat.

HAYNE J:   Do we know that it was a sharp‑bladed instrument?

MR DONALDSON:   I am not even sure that it went that far, your Honour.  All that was known was that it was a weapon that was capable of cutting a throat.  Quite obviously it would have had to have been sharp and bladed, your Honour, but there was no conclusion on the evidence as to whether it was a knife or some other form of weapon.  It was simply described throughout as a weapon.

HAYNE J:   Anyway, you want to agitate a Jones v Dunkel point about if the Crown want to put these things they have got to suffer the inference that not having asked the experts about it, the expert evidence would not help?

MR DONALDSON:   Particularly, your Honour, in this case where the expert witness who was called was the Crown’s expert witness on bloodstain pattern analysis.  So it was a question squarely within the expertise of that witness and that witness, your Honour, was asked a number of questions concerning bloodstains that were on the trousers and other clothes that were found on the scene.

HAYNE J:   Now, Mr Donaldson, I know that there is more you would wish to say about Jones v Dunkel, but are the two points the points that we have thus far identified?

MR DONALDSON:   They are the points that found the Jones v Dunkel point, your Honour, that is ‑ ‑ ‑

HAYNE J:   Yes, but the two points you would wish leave to agitate are, one, the prosecutor’s statement in final address; second, the bloodstain in the pocket issue with Jones v Dunkel, is that right?

MR DONALDSON:   Yes, your Honour, they are the two ‑ ‑ ‑

HAYNE J:   Yes.  We might be assisted by hearing from Mr Cock.

MR DONALDSON:   Thank you, your Honour.

MR COCK:   Your Honours, as to the first point, my friend is right.  The judge did direct the jury that their job was to assess the evidence.  Your Honours will find that at page 6 at the book at about line 28.  In the middle of that penultimate paragraph her Honour said:

Any view that I or counsel express about the facts must be ignored by you unless you agree with it because you are the sole judges of the facts in this case.

That is quite traditional and your Honour expected to find that there is.  At page 26 her Honour at line 20 dealt with a direction.  We would say that when she spoke about the inferences that could be drawn from the demeanour, we suggest that was not a comment on the evidence as your Honour may have thought, but in fact was formulated deliberately by her Honour as a direction.

HAYNE J:   What was the content of the direction her Honour was giving the jury then?  What was her Honour telling the jury that they had to do?

MR COCK:   That when you are considering drawing inferences in respect of the accused’s demeanour in the walkthrough video:

it would be unwise for you to draw any adverse view against the accused because of his demeanour –

She is not expressing a personal view at all.  She actually starts it out, deliberately uses the word “direction” and then tells them:

Now, members of the jury, it would seem to me that it would be unwise for you to draw any adverse view against the accused because of his demeanour in the walk-through video.

In our respectful submission, whilst one can always suggest a judge can do it better, that was adequate in the circumstances to sustain our proposition.  She made it quite clear.  She distinguished between submissions of counsel and of course she uses the term “direction” for her own instruction to the jury in that particular passage.  That is where it is found.  It is for those reasons, in our respectful submission, that that was an adequate cure to the unfairness of the prosecutor’s comment.  We also draw your Honour’s attention to the fact that there were many other parts of the evidence about the accused man’s demeanour.  In those respects it seems that they were favourable to him and they ‑ ‑ ‑

HAYNE J:   Do you accept that the prosecutor at trial should not have said what he said about demeanour?

MR COCK:   Yes, your Honour. 

HAYNE J:   Do you accept that, uncorrected, that may have given rise to miscarriage?

MR COCK:   May have done, although there is a substantial miscarriage point, but certainly it was proper for her Honour to draw attention to it and correct it, which, in our submission, she did.  There was no complaint of course made of any deficiency by her in that correction also.  I think that is a relevant factor at the end of the trial, although the defence lawyer wanted to be dealt with in another way.  He wanted to produce fresh evidence or reopen his case.  There was no criticism of this particular passage.

HAYNE J:   Yes.

MR COCK:   The other point, your Honour, arises effectively from page 25 of the application book at line 27.  It is our submission in respect of the bloodstain point that her Honour rendered that neutral.  The passage starts at the penultimate paragraph again:

You would also have to exclude as a reasonable hypothesis that another person put the blood there when they opened the door.  The second result the state relies upon is the blood found in the accused’s pocket.  The state says this is consistent with the accused putting the murder weapon in that pocket.  Again, the significance of this evidence is a matter for you but before you could use that evidence against the accused you would have to exclude as a reasonable hypothesis other means by which the blood could have got in the pocket; for example, if the accused had put his bloodstained hand in the pocket to get something out or to search for something or even just out of habit.

His Honour Justice Roberts-Smith took the view, with which we would respectfully agree, that that rendered it so neutral that  if any jury was paying attention to her Honour’s direction on that, they would have realised there were so many alternative hypotheses consistent with innocence.  His position, as your Honour would know, being that he actually got to his dying or dead wife and rested her head on his lap.  It is quite possible the hand of his with blood on it could have got in the pocket though an innocent way.  That point was no longer a point of substance in the prosecution case having regard to that direction. 

So it is our submission that whilst here may be issues about whether or not there was a sufficient evidential basis for the prosecution to suggest to the jury that the knife was put in the pocket, the evidence simply being that there was blood in the pocket and that there was a sharp instrument used to cause the death, the point was gone by the time jury commenced consideration.  So for that reason, in that particular one, also, your Honour, despite the criticisms one might have of a prosecutor advancing a scenario consistent with the evidence but really having nothing to otherwise suggest it as being more probable than any other innocent cause, the point simply washed away by the time the jury commenced deliberation.

HAYNE J:   Did the evidence that was led reveal whether the staining in the pocket was deposited from inside or outside the pocket?

MR COCK:   There is no evidence either way on that, your Honour.  We note my friend’s interesting assessment of the authorities across Australia on Jones v Dunkel.  It is our position, of course, that this particular trial does not represent an appropriate opportunity for the Court to embark upon an exercise of seeking to draw some consistency about the different approaches.  As his Honour Justice Roberts-Smith put in the judgment, it is not even clear that a blood splatter expert could in fact express any view as to whether the blood in the pocket was or was not caused by a knife.  So, in our respectful submission ‑ ‑ ‑

HAYNE J:   Mr Cock, if the blood spatter expert cannot do it, counsel for the prosecution has got no business whatever to be doing it at his own motion.

MR COCK:   Your Honour, I accept that.  I do not seek to distance myself from full acknowledgement it was wrong to do it.  My point simply is, your Honours, that by the time the matter got to the jury, the point was rendered neutral.  That was the view of the judges of the Court of Appeal.  In our respectful submission, the same submission, if special leave were granted, would simply bare upon the minds of the judges of your Honour’s Court and, likewise, if the point is rendered neutral, there is no substantive miscarriage of justice.

HAYNE J:   Does it come, Mr Cock, to this?  The prosecutor in final address puts two propositions to the jury which are propositions neither of which you would defend.  The question then becomes that which divided the Court in Libke, does it not?

MR COCK:   Yes.

HAYNE J:   Namely, how far and in what way does the trial judge correct the steps taken by the prosecutor in address that were steps that are not to be justified?

MR COCK:   Certainly, your Honour.  I would not express it any other way.  The view of the court was that the judge dealt with it adequately such that there was no substantial miscarriage of justice.  The court was fully appreciative of the facts that the prosecutor had gone too far in both respects, but took the view that the judge’s direction was adequate.  If your Honours see it as important to express a contrary view, of course, that may be a matter which would justify special leave, but the principles, in our respectful submission, have been clarified by the Court in Libke and it is question of application and there was no dispute by the judges below.  Each judge took the view that there was no substance in the grounds and dismissed the appeal.  It is not a case of a dissenting opinion with some strength or contrary position which was accepted by one or more of the judges below.

HAYNE J:   The Court of Appeal did not act on the proviso, did it?

MR DONALDSON:   No.

HAYNE J:   Thus, if leave were to be granted and if the State wished to rely on the proviso, that would be a matter which would not occupy this Court.  It would go back for consideration by the CCA if the Court of Appeal were otherwise held to be in error, would it not?

MR DONALDSON:   On Weiss, your Honour, we would be submitting it would be appropriate for your Honours to then fully review the evidence and effectively apply the proviso.

HAYNE J:   That might encounter just a little resistance, perhaps, Mr Cock.

MR COCK:   It is not a popular submission, your Honours, but it seems to us ‑ ‑ ‑

HAYNE J:   It is never the job of the prosecutor to make popular submissions, I suspect, Mr Cock.

MR COCK:   No, your Honours.  I do indicate that we would not be conceding that the proviso would be a matter necessary for the court below.

HAYNE J:   Is there anything else, Mr Cock?

MR COCK:   No, your Honours.

HAYNE J:   Thank you.  Now, Mr Donaldson, we would be assisted by your argument in reply in relation to the second point, not in relation to the first point.

MR DONALDSON:   Your Honours, as I understand it, that is whether this is a suitable vehicle to deal with the ‑ ‑ ‑

HAYNE J:   Was the problem not cured by what the trial judge said at page 25 between lines 26 and 38?

MR DONALDSON:   Yes.  Your Honour, in our submission, it is not cured for the following reason.  If one looks to that direction, what her Honour says there is that – and left the matter to the jury, of course – they had to be satisfied that the blood in pocket could not have got there by another means, so has left to the jury, as it were, speculation about that particular matter. 

Now, if a Jones v Dunkel direction had been given arising out of the failure of the Crown to ask its expert whether the bloodstain was consistent with the murder weapon, the jury would have had the direction that they had from her Honour and in addition to that would have had a direction along the lines of, because Sergeant Reynolds was not asked whether the stains on the pocket were consistent with the murder weapon being in his pocket, it is open to the jury to infer that had he been asked, the answer would not have assisted the Crown’s case.  Now, if those two directions had been given, your Honour, it would have been, in our respectful submission, impossible for the jury to have even speculated upon the issue of whether the knife was there, because ‑ ‑ ‑

HAYNE J:   The error you would seek to assign – whether this is right or wrong I express no view about – is the judge should have gone beyond saying, “Look, lots of hypotheses are open”, the judge should have said, “You may more confidently draw the conclusion that the ‑ ‑ ‑

MR DONALDSON:   Knife was not there.

HAYNE J:   Knife was not there.

MR DONALDSON:   Your Honours, if the knife was not there, the Crown’s case was difficult to sustain, because that was the Crown’s case, your Honour, that he left the premises.

HAYNE J:   That may be carrying your submission just one trench too far, Mr Donaldson.  We will not delay you on that.  There will be a grant of special leave in this matter.  I would have thought it would be a case of less than a day, would it not?

MR DONALDSON:   Unless, of course, the Court is going to be invited to exercise the proviso.  If that is the case, then it would be a day, I would have thought, your Honours.  If not, then it is a half day, in my submission.

HAYNE J:   It would be, I think – I mean, it is a matter for the parties to take such course as they think is appropriate – an unusual event for the Court to embark upon a complete review of the whole of the record of trial to consider the application of the proviso for the first time in this Court.  I am not to be understood, Mr Cock, as barring you or excluding you from doing it.  I simply proffer an uninformed speculation.  There will be a grant of leave on both of the grounds which you proffer in your draft notice of appeal, Mr Donaldson.

MR DONALDSON:   May it please your Honours.

HAYNE J:   The Court will adjourn until Monday 3 September next at 11 o’clock in Canberra.

AT 1.26 PM THE MATTER WAS CONCLUDED