Mahmood v The State of Western Australia
[2007] WASCA 101
•14 MAY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: MAHMOOD -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 101
CORAM: ROBERTS-SMITH JA
McLURE JA
BUSS JA
HEARD: 6 MARCH 2007
DELIVERED : 14 MAY 2007
FILE NO/S: CACR 57 of 2006
BETWEEN: DLSHAD HAMAD MAHMOOD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
File No :INS 45 of 2005
Catchwords:
Appeal - Criminal law and procedure - Wilful murder - Evidence - "Walkthrough" videorecording of accused at crime scene - Portion only played to jury - Accused in no apparent distress - State prosecutor referring to this in address to jury - Apparent distress shown by accused in parts of recording not shown to jury - Fairness - Whether Judge erred in not allowing defence to play those parts - Reference to demeanour of accused - Whether direction sufficient
Appeal - Criminal law and procedure - Evidence - Bloodstains at crime scene - Whether probative of accused's guilt - Direction required - Bloodstain in accused's pocket - Whether inference open it came from murder weapon - Direction by trial Judge
Criminal law and procedure - Evidence - Prosecution called witness to give expert evidence on blood spatter - Not asked whether blood in accused's pocket consistent with bloodstained knife - Whether Jones v Dunkel direction should have been given
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Dr J J Edelman
Respondent: Mr D Dempster
Solicitors:
Appellant: Kott Gunning
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Commercial Union Assurance Co of Australasia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Dyett v Jorgensen [1995] 2 Qd R 1
Fonseka v The Queen [2003] WASCA 111; (2003) 140 A Crim R 315
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
R v Blobel [2001] SASC 374
R v Chin [1985] HCA 35; (1985) 157 CLR 671
R v GEC [2001] VSCA 146; (2001) 3 VR 334
R v Hillier [2007] HCA 13; (2007) 81 ALJR 886
R v Massey [2000] ACTSC 107
Shepherd v The Queen (No 5) [1990] HCA 56; (1990) 170 CLR 573
Winning v The Queen [2003] WASCA 245
ROBERTS-SMITH JA: On 24 February 2006, the appellant was convicted of the wilful murder of his wife, Chnar Dabag. She was murdered by having her throat cut, but the murder weapon was never located. He was subsequently sentenced to life imprisonment with a minimum period of 18 years to be served before eligibility for parole.
His appeal notice was filed on 9 May 2006. The appellant's case was filed on 25 July 2006. After some procedural vicissitudes, Wheeler JA granted leave to appeal on 17 August 2006 in respect of a number of grounds, but refused leave on ground 6. Further amendments were made to the grounds of appeal by leave given at the hearing of the appeal on 6 March 2007. The grounds of appeal as they stood at the hearing were:
"1. The learned trial judge erred in law when she refused the application by counsel for the Appellant (at TS 352) to reopen the Appellant's case for the Appellant for the limited purpose of showing the rest of the walk‑through video, including the portions of the video in which the Appellant was crying (TS 352).
2.Alternatively, the learned trial judge erred in law when she directed the jury that it was 'unwise' to draw an inference from the Appellant's demeanour in the walk‑through video and that the Appellant's [sic demeanour] on the day of the murder was 'more relevant'. Alternatively, the trial judge should have directed the jury that the Appellant's demeanour in the walk‑through was irrelevant and that they could not take the Appellant's demeanour into account.
3.The learned trial judge erred in law and in fact when she directed the jury that (at TS 377):
'In this case the state relies upon two DNA results as being probative of the accused's guilt. The first is that the deceased's blood is on the back of the side door to the restaurant. The state says that this is consistent with the accused opening the door after he had killed the deceased. Members of the jury, this is a matter for you but before you come to that conclusion you would have to exclude as a reasonable hypothesis that the door was already open but the accused merely touched it or pulled it open further after he - when he went through the door after finding his wife's body.
You would also have to exclude as a reasonable hypothesis that another person put the blood there when they opened the door.'
The learned trial judge should have directed the jury that, contrary to the submission of counsel for the State, the presence of the deceased's blood on the door was not probative in any way of the guilt of the Appellant.
Alternatively, if the deceased's blood on the door was capable of being probative of the guilt of the Appellant, the trial judge erred in law because her Honour should have directed the jury that the presence of the deceased's blood on the side door was probative of the Appellant's guilt only if the jury concluded that:
(i) the Appellant was using the word 'open' to mean that the door was ajar; and
(ii) the Appellant did not touch the door or pull it further ajar so that the blood could have got on the door in that manner; and
(iii) no‑one else, such as the police or ambulance officers or any other person transferred the deceased's blood onto the door by touching it or pushing it further open; and
(iv) the Appellant was not mistaken in his memory about the door being ajar; and
(v) Even if the Appellant was lying, he did not do so for a reason not relevant to guilt, such as to protect himself or strengthen his case.
4.The learned trial judge erred in law and in fact in failing to direct the jury that an inference that the deceased's blood stain in the pocket of the Appellant came from the murder weapon (as counsel for the State submitted in closing) could not be drawn because counsel for the State had not put this matter to its blood spatter expert in examination in chief. Alternatively, the trial judge should have directed the jury that caution should be exercised in drawing such an inference because the State had not put this matter to its blood spatter expert in examination in chief (see Closing TS 21‑22 (Bowden)).
Alternatively, the trial judge erred in directing the jury to hypothesise about whether the blood stain in the Appellant's pocket came as a result of putting the murder weapon in the pocket or whether 'the Appellant had put his bloodstained hand in the pocket to get something out or to search for something or even just out of habit' in circumstances in which (i) the Appellant had not had an opportunity to respond to such an allegation in examination or cross‑examination; and/or (ii) this issue had not been put to the State's blood spatter expert, Mr [sic Sergeant] Reynolds.
5.The learned trial judge directed the jury in relation to what the prosecution asserted to be a lie about whether the Appellant had argued with his wife the morning of the murder (TS 374‑377). The learned trial judge erred in law in:
(i)failing to direct the jury that as the lie related to motive and was an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty and hence it was not enough to consider the lie together with the other evidence in assessing whether the Appellant was guilty beyond reasonable doubt.
(ii)further and alternatively, although telling the jury that they would have to be satisfied that an accused person did not lie because 'the accused may have panicked or told the lie for some reason other than a realisation of guilt' (TS 374), her Honour should have also told the jury that lies may be told to escape an unjust accusation or to avoid a consequence extraneous to the offence.
6.The verdict was, in all the circumstances, unsafe and unsatisfactory.
Particulars
The case for the State was circumstantial and relied upon drawing an inference of guilt from
(i)the presence of the deceased's blood on the Appellant's clothing and shoes;
(ii)the presence of the deceased's blood on the door handle of the shop door;
(iii)a suggestion that the Appellant lied about arguing with his wife that morning based on inconsistent evidence of a witness (McDonald);
(iv)opportunity arising from the Appellant's presence in the shop earlier in the morning;
(v)motive arising from the Appellant's suspicion that the deceased may have been having an affair.
The weight of other circumstantial factors so grossly exceeded any probative force of these factors that it was unsafe and unsatisfactory to draw an inference of guilt. In particular
(i)fingerprint evidence shows that there were 15 fingerprints of unidentified persons (which did not match the Appellant's fingerprints) at the scene in places where shop customers would not be;
(ii)red fibres that were found in the deceased's hand that were not found to be associated with the Appellant;
(iii)a set of shoe prints in the doorway that were not the prints of the Appellant nor the police;
(iv)DNA in the toilet which did not belong to the deceased or the Appellant;
(v)no weapon was ever found;
(vi)There were no witnesses to the killing."
Ground 5 was abandoned by the appellant. Ground 6 was not the subject of any application to review the order of Wheeler JA refusing leave (s 61(3) Supreme Court Act 1935 (WA)).
The circumstances of the case are as follows.
The appellant and Ms Dabag had been married for 24 years and had six children. With the help of his family, the appellant had been running a restaurant called the Kebabistan Restaurant for 15 months.
The prosecution case was that the appellant suspected that his wife was cheating on him and had hired private investigators (introduced to him by Marco Sorani, a close friend of he and his wife) to investigate whether his wife was cheating on him. The prosecution alleged that the appellant had argued with his wife on the morning of 4 July 2004 and had killed her by cutting her throat and then disposing of the knife. The prosecution relied upon evidence of a Ms McDonald who said that between 5 and 10 past 8 on Sunday, 4 July 2004, she heard "voices raised in anger … a male voice and a quieter, female voice" coming from behind a door on the laneway where the appellant's restaurant was located. She said they were speaking a foreign language. She heard a loud male voice on her return journey about 10 minutes later after having made a purchase. In cross‑examination she said that the male voice was "louder than what one would normally use in a one‑one conversation" (and it "sounded more aggressive than general conversation"). In cross‑examination she said that there may have been more than one male voice. This reference to more than one voice was consistent with her statements to the police at the time of the murder. She also said that there was background noise which she thought was a mechanical or whirring noise.
There was a very short time from the time the wound was inflicted until the time of death. The prosecution led evidence from Sergeant Reynolds, a police forensic expert, that the blood pattern suggested that shortly after the injury the victim had been moved and that she would have been in a horizontal position when her injuries were inflicted and some time afterwards. Reynolds examined photographs of the clothing of the appellant and concluded that bloodstains on the appellant's shoes were not consistent with walking or stepping in blood.
The appellant admitted that he hired private investigators to see if his wife was having an affair, but said that he did not kill her. McLure JA has described the evidence in relation to that in some detail so it is unnecessary for me to do so here. The defence case was that on Sunday 4 July 2004, the appellant and his wife woke at 6.30 am and left the house. He dropped his wife off at a coffee shop near an ATM machine because she had told him that she needed to withdraw some money. The appellant went to the restaurant and began making dough for bread. Video footage and bank records confirmed that his wife attempted to withdraw money from the ATM but entered the wrong PIN number between 7.19 and 7.28 am. The appellant said that shortly thereafter his wife returned to the restaurant and told the appellant that the PIN number did not work and gave him the ATM receipts. The appellant denied that he had an argument with her. Marco Sorani then arrived at the restaurant and spoke with the appellant and the appellant's wife. The appellant said that they all were laughing at Sorani's medical condition. After Sorani left, the appellant began cleaning and heard his wife turn on music. His wife called out to him and he thought she might have wanted to have sex, but she did not. She told him she was going to the toilet. After she had been gone 10 or 15 minutes he turned the music off and called her name. He got no reply and went to find his wife, seeing her lying on the floor bleeding. He lifted her upper body against his thigh, but found no breathing. He went outside to see if there was anyone around. He was crying and rang the ambulance, the police and then his son. The phone call to the ambulance led to the ambulance departing at 8.47 am. It arrived at 8.55 am.
Sorani gave evidence for the State and said that the appellant and his wife were very happy when he arrived and that they were working. He said that there was music on but that it was not very loud. They turned it down and started talking. Sorani said that he could not recall Ms Dabag making disapproving comments about the fact that he was living with a 16‑year‑old girl. Sorani gave evidence that he went into the male toilet and then into the female toilet to "look at himself". Shortly afterwards, he left.
In his first statement to the police on 5 July 2004, Sorani made no mention of returning to the shop. He later admitted that he returned to the shop because (he said) he had left his mobile phone behind. He said he did not see the appellant and did not find his phone but he did see the body of Ms Dabag and then left. He did not call the police. The day after the murder, when interviewed, he gave the police a pair of shoes that he said he had been wearing on the day of the murder. He later admitted that these were not the shoes that he had been wearing and that he had disposed of the shoes he was wearing that day. He also admitted that his girlfriend cleaned the car that he was driving within two days after the murder.
The appellant voluntarily took part in a video‑recorded interview with the police ("VROI") that evening (on 4 July) and the following week went with the police on a walk‑through of the restaurant, which was also recorded ("the walk‑through video"). When the police returned his wife's belongings he noticed that her purse was missing.
The defence argued that the appellant's account in the police interview was perfectly consistent with Reynolds' forensic evidence. The interview with the appellant (at which the appellant explained that he had lifted his wife upright onto his knee when he found her) was conducted before Reynolds' examination of the appellant's clothing and photographs of the appellant and his hands. Reynolds' conclusions were that part of the blood on the appellant's clothing was "passive flow" (from gravity) and that this may have been explained by the appellant lifting up the deceased and resting her on his knee. The blood on the appellant's shoes was also consistent with expirated blood. The suggestion that the blood on the appellant's trousers was deposited by force was not more likely than that the blood had been expirated.
Mrs Gloria McMahon gave evidence that between 8.30 and 8.40 am on Sunday 4 July 2004 she heard a man moaning in the laneway adjacent to the restaurant (before police and ambulances arrived). Her husband, John McMahon, gave similar evidence. The prosecution also led evidence from Mr Stephen O'Hazy who said that he earlier saw a man exit the laneway where the kebab shop was and get into his car and drive away. Some time later, when he was walking back, he saw a man who was distressed with his arms above his head, banging the wall. The man was "crying and moaning" in a language he could not understand. About 15 minutes later when he drove past he saw an ambulance out the front.
Grounds 1 and 2 - Appellant's demeanour on "walk‑through" video
On 11 July 2004, the appellant voluntarily took part in a walk-through of the crime scene which was video recorded. The walk‑through video was over two hours long.
During cross‑examination of a police officer, Mr Marrapodi, who was not involved in making the walk‑through video, counsel for the appellant was allowed by the trial Judge to tender part of the recording for the purpose of demonstrating the position in which the appellant said that he rested his wife (on his knee) when he found her. Counsel for the appellant offered to tender the whole video but the respondent said that "there may be issues with that" and consented only to the tender of the portion of the video that showed the position of the appellant's wife. The trial Judge, in directing the jury that they would only see part of the video said, "Members of the jury, that just simply arises because there's not consent between the parties that the whole of the tape should be tendered into evidence." Her Honour said (AB 2/247):
"Then we will do as you propose. The tape will have to be tendered but the only part in evidence will be between the words that you have recorded on the transcript. If the jury wish to view that part of the evidence whilst they are deliberating they will have to be brought back here into court to view it. Members of the jury, that just simply arises because there's not consent between the parties that the whole of the tape should be tendered into evidence. We don't have a tape just containing the portion that Mr Bowden wishes to tender. Consequently that will be the procedure that will have to be followed. Please play the tape."
Exhibit 24 was that portion of the video which was shown. Counsel for the appellant sought to show a further part of the videotape but, after an adjournment requested by counsel for the respondent, it was agreed that that part of the videotape would not be shown and the respondent admitted that the appellant showed the police officers around the area of the main counter where the footprints were located.
In one part of the video not shown to the jury, the appellant was visibly distressed and asks the cameraman to stop the camera to give him 5 minutes' break. He follows the suggestion of the police officer to smoke a cigarette "if that will help you".
In another scene not shown to the jury the police officer asks how he is feeling and he begins crying. The police officer says, "We're all very aware of how you're feeling", and stops the camera at 9.01 am. At 9.06 am the camera restarts and he explains that the break was "in order for you to feel a bit better". The police officer explains that if the appellant feels like he cannot go on again then to let him know and the camera would be stopped.
At another point in the video not shown to the jury, the appellant again asks for another few minutes to recover. On numerous occasions after this he is sniffing and apparently struggles to speak. At a further point when he seems to become visibly distressed, the police officer gives him a break and he is seen bending over the sink.
Towards the end of the recorded walk‑through, in another part of the video not shown to the jury, the appellant, when considering the place at which his wife lay dying, apparently becomes unable to speak and begins crying and sniffing. He is comforted by the police officer who puts his hand on the appellant's shoulder. Near the conclusion of the video the police officer thanks the appellant and says that he knows that it has been "difficult and emotional" for the appellant to assist. Again, this was not shown to the jury.
In closing submissions counsel for the State told the jury that (AB 2/307):
"Some other things you can take into account: did you notice in the walk‑through, the extract which was played to you, the accused man describing how he found his wife and how he held her and I'm suggesting to you that how he held her was a matter well within his knowledge, but 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?
Here is a man who is accused of killing his wife and the police ask him to even take part in this and asked those sort of questions. You saw his reaction, his demeanour. It was, I suggest to you, cold‑blooded and clinical and this killing was cold‑blooded and clinical."
In his address to the jury counsel for the appellant adverted to what the State prosecutor had said, in this way (AB 2/317 ‑ 318):
"Then my learned friend ‑ my learned friend then says to you, 'You saw an extract on 11 July of a video and the accused wasn't very emotional.' Okay. There must be an equation that I'm missing. What, if you get into the witness box and cry for 15 minutes, you're not guilty, but what an extraordinary position because you in fact were present in court ‑ and I refer to the evidence of the police officer, page 295:
You have seen the walk‑through?‑‑‑I have seen bits and pieces of it, yes.
Would you agree with me first of all it's all quite lengthy? It takes about two hours and a bit. Do you agree with that?‑‑‑Yes, but I guess it would be unfair for me to make comment when I haven't actually seen the video for some time.
Then I then say to the court, again at page 296:
As I said, if my friend wishes me to I'm happy to tender the whole of the video.
There may be ‑
the prosecution ‑
issues as to that.
BOWDEN, MR: I'm sorry?
DEMPSTER, MR: There may then be issues as to that, your Honour.
JENKINS J: Do you have any objection to Mr Bowden's proposal?
DEMPSTER, MR: I have no objection to this portion.
Two and a half hours ‑ inflict the video on you. We put in a short section because they object and then they turn around and say, 'On the short section you've seen he's not crying.' Now, what is that about?.. "
And again, (at AB 2/329 ‑ 330):
"I mean, it's all very well for me to get up here and talk about the presumption of innocence. Yes, we have got the presumption of innocence but we have got all the trappings of guilt. Everybody wants to jump to the conclusion, 'We're the husband, therefore we are guilty.' If you were an innocent man ‑ remember the law presumes us to be innocent. If you are in fact innocent, what more can you do? What do you do when you discover the body of your wife?
You heard the witnesses say, 'Look, there was this moaning, weeping man who appeared to be angry, distressed, banging on whatever it was and screaming or talking in a language we couldn't understand.' The police get him and say to him, 'You don't have to say anything.' He talks to them for what, five hours or four hours on the video, goes back to the police and re‑enacts with them what took place. If he is an innocent ‑ and let's presume for the moment that he is innocent ‑ what more can an innocent man do?"
Defence counsel concluded his address in the afternoon. The Judge then adjourned the trial to the following day. The next morning, in the absence of the jury, defence counsel made an application to her Honour to reopen the defence case, confined solely to the appellant's demeanour on the walk‑through video, on the basis it was put to the jury that on the short extract played to them they could determine from his demeanour that he was not emotionally upset or distressed, whereas in fact at other parts the recording had to be stopped so that the appellant could compose himself. Counsel said (AB 2/335):
"His evidence will be simply confined to a short extract of the tape in a number of places where it has to in fact be stopped to enable him to compose himself and indeed the recording is in fact ceased. He recomposes himself, comes on, goes through it again and again it has to be stopped for a short period of time, and that is the basis upon which the application is made."
Her Honour said that there was no transcript of counsel's addresses (they are ordinarily not transcribed unless subsequently requested) and she did not recall what the State prosecutor had said about that. Counsel responded (AB 2/335‑ 336):
"BOWDEN, MR: My note is more of a heading than a verbatim note and that was that he drew the jury's attention to the lack of emotion displayed by the accused in the short extract and asked the jury to infer from that that you were dealing with, if you like, a cold, calculated person. I accept that I made mention of it in my closing address to counter that, but I do think that particularly where there are cultural differences one does have to be very careful and cautious about a jury inferring from demeanour according to what they consider the normal demeanour of a person in those circumstances ought be. That's really what concerns me and that is the extent of the application, your Honour."
The State prosecutor opposed the application. He explained (AB 2/336):
"DEMPSTER, MR: I was inviting the jury to find, if it found it, that the lack of emotion in those circumstances was consistent with the type of offence and my friend spent some time responding to that in closing."
Her Honour then refused leave for the defence to reopen, giving the following reasons (AB 2/337):
"JENKINS J: … The accused applies to reopen his case to show some other portions of the video‑recording of the walk‑through of the Kebabs Istan [sic] restaurant to rebut the inference that the state's counsel ask the jury to draw from the portion that was shown to the jury, that inference arising from the accused's demeanour during the part that was shown to the jury. The state ‑ and it's agreed that state counsel drew the jury's attention to the lack of emotion in the accused's demeanour in the part of the video that was shown and invited the jury to find that that lack of emotion was consistent with the type of offence which the state alleges the accused has committed.
Without having the opportunity ‑ having had the opportunity to examine the matter in detail, I accept that I have a limited, or a discretion to allow a party to reopen a case at this late stage of the trial. It was put to me by the defendant that that discretion, according to the authority, should be exercised hesitantly and sparingly. When I heard Mr Bowden's address to the jury in respect to this issue, my immediate view was that this was (a) a matter that was very marginally relevant because the jury had indeed seen the video record of interview of the accused on the day that the offence was said to have occurred and they had seen that in the video record of interview the accused was indeed upset on numerous occasions.
They had also had the benefit of hearing witnesses who say that they saw the accused what must have been very shortly after the death of Ms Dbag [sic] and that he ‑ some of the descriptions that were given were that he appeared distressed, moaning, I think also someone used the word 'anger' but certainly that there was distress being shown at that time. Consequently my initial reaction was that the demeanour some weeks later was, if anything, a red herring to the issues in the trial.
Given my view, I don't intend to allow the defence to reopen. In my view the matter can be properly dealt with by me indicating to the jury that it would be more relevant for them to consider the accused's demeanour on the day in question and to refer to the matters that I have mentioned already. It wouldn't seem to me that his demeanour two weeks later is a matter that really the jury should be taking into account in any event. So that is how I will deal with that matter."
In her summing up to the jury, the trial Judge said about this (AB 2/363 ‑ 364):
"There's one final part of the evidence that I wish to give you directions on and that is in respect to some submissions that were made to you about drawing an adverse inference against the accused because of his demeanour during the walk‑through video. Mr Dempster made some submissions to you about this and then Mr Bowden replied, said that you couldn't draw anything from the accused's demeanour during that video. 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.
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. 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 2004, the very day that Ms Dbag [sic] died.
It would also be relevant for you to take into account what some of the witnesses said who were walking past the shop. I think one in particular clearly heard what would have been the accused after Ms Dbag [sic] had died and he referred to the sound that he heard coming from the shop at that time as ‑ I think it was Mr O'Hazy and he said that between about 8.50 and 9 am he saw what appears to be the accused distressed, unhappy, angry and upset, crying and moaning.
Members of the jury, that's all I wish to say about the law relating to the evidence."
On the appeal, Mr Dempster conceded that insofar as what he had said to the jury suggested the appellant's apparent lack of distress or "cold‑bloodedness" was representative of the whole of the walk‑through video, it was misleading. But he submits that was corrected by her Honour's direction.
It is common ground that the appellant did display apparent distress and seemed to be emotionally upset when talking about his wife at several points in the balance of the recording not seen by the jury. Indeed, as I understand it, that was at least part of why the State signalled objection to the tender of the whole of it on the basis that it was self‑serving. Her Honour was told by counsel that that was so, but at no time was any suggestion put to her that the jury could be directed to ignore what the State prosecutor had said because counsel were agreed the appellant had in fact evinced distress. In the absence of such agreement, her Honour was not in a position to tell the jury what could be seen on the part of the tape which had not been shown to them. The only application made to her was for leave to reopen the defence case (presumably to show at least some of the other parts of the video, although that is not clear). It was a matter for her Honour's discretion, having heard the evidence and counsel's addresses, to assess whether there was such apparent unfairness that allowing the defence to reopen on that point, was the only way in which it could be obviated, or whether an appropriate judicial direction would satisfactorily obviate it. She concluded the latter would do so.
I am not persuaded her Honour was wrong in that conclusion. There can be no doubt that what the State prosecutor said was unfair insofar as it conveyed the implication the appellant's apparent lack of emotion and the extract the jury saw was representative of the whole of the recording. It should not have been said. But there was a great deal of evidence before the jury about the appellant being emotionally upset and distressed about the death of his wife, much more proximately to the event. It started with the recordings of his telephone calls to the ambulance and the police (exhibit 9). He was described by the witness O'Hazy (AB 1/83) who saw him shortly after the killing, as being "distressed, unhappy, obviously in a state … " and who said he "clearly felt he was upset about something". Constable Medling, who was first on the scene, said he was "sitting down and crying". In his VROI, which ran for some three and half hours, and which was an exhibit, the appellant was seen frequently to apparently be distressed. Against the background of evidence such as this and in light of the strong direction in fact given by the trial Judge, the comment made by the State prosecutor could not have been other than peripheral.
Further, in the course of her summing‑up, the trial Judge reminded the jury that although all other exhibits would go with them into the jury room, the walk‑through video would not. She explained (AB 2/343 ‑ 344) that was because not all that was on it had been tendered as an exhibit in the trial, that it would therefore remain in the courtroom and that if they wished to view it (and she told them "by all means" to do so) they need only tell the Sheriff's officer and her Honour would arrange for it to be played by the clerk of arraigns in the courtroom. The jury made no request to view the tape during their deliberations.
I am not able to say that the exercise of her Honour's discretion miscarried when she refused leave to the appellant to reopen his case. Whilst the remark made by the State prosecutor was misleading and should not have been made, the Judge's direction was sufficient to rectify it and in my opinion it did not result in a miscarriage of justice. I would not uphold grounds 1 or 2.
Ground 3 ‑ Blood on the door
To put this ground of appeal in context it is necessary to say more about the evidence.
The Kebabistan restaurant is on the corner of Beaufort and Clarence Streets Mount Lawley. The shopfront is on Beaufort Street. The length of the premises runs along Clarence Street. The roadway on Clarence and the premises are separated by a mostly dirt but slightly grassed verge and a concrete footpath. The old original brick premises have had a metal frame steel sheet wall constructed from the rear of the restaurant proper right along the side to the back of the building. This creates a long passage a bit more than one metre wide. The door in the middle of the rear wall of the restaurant proper opens directly into one end of the passage. Upon the left, facing towards the rear, is the metal wall. The right side is the wall of the old brick building, with various rooms on the other side of the brick wall. The first room is a kitchen. The next room towards the rear is described as the bakery. There is an internal door from the passageway to the bakery about one third of the way along the passageway from the restaurant. About another one third of the way along there is another internal door opening and two store rooms. Immediately opposite that, and the metal wall, is an external metal door. That is the only external door along the metal wall. It opens directly to a carport parking area alongside and parallel to Clarence Street. Looking at the door from the inside, it opens from the right. There is a solid sliding bolt fixed horizontally in the middle of the door on the right side, and another vertical sliding bolt on the top right of the door. These bolts (and hence the door) can only be opened from the inside.
Past these two doors, and at the end of the passage to the right (looking to the rear) there are two toilet cubicles.
From the photograph exhibit 10 Ms Dabag's body can be seen lying probably less than one metre from the edge of the external door when that is fully open against the side of the wall, and therefore about two metres from the external doorway opening, towards the Beaufort Street end. She is lying along the passageway with her head towards Beaufort Street.
O'Hazy was a resident of Mount Lawley. He had a routine of walking to a coffee shop on Beaufort Street every morning and then returning home. That involved him walking along Clarence Street. He normally left home at 8 am and returned about 9 am. On 4 July 2004, as he was on his way to the café, walking towards Beaufort Street along Clarence Street, about 8 o'clock, he observed a man walking towards him. The man was unremarkable. He was in his mid‑30s, with short hair, wearing a vest and a long‑sleeved T‑shirt. There was no reason for O'Hazy to pay any particular attention to him.
He was walking directly towards O'Hazy on the footpath on the same side of Clarence Road. That was the side that the kebab shop was on. The man crossed the verge, got into a car which was parked facing Beaufort Street, and drove off in that direction. O'Hazy continued on his way to the café, where he had his morning coffee. He left about 8.50 am, to return home the way he had come. His route took him along a laneway running parallel to Beaufort Street behind the shop. As he approached the corner of the laneway and Clarence Street he heard something which sounded to him like someone in distress or who was upset. He stopped to look. He was on the corner of the laneway and Clarence Street, behind the appellant's car, which was parked in the Kebabistan carport. Adjacent to the car there was a doorway. It was fully open. It opened into the passageway running parallel to the street. The sound was coming from there. O'Hazy could see into the doorway. He saw a man standing in the passageway, with his hands above his head, hitting the wall with them. He had his back to O'Hazy. The man sounded "distressed, unhappy, obviously in a state", but O'Hazy could not understand what he was saying. O'Hazy said it sounded like a domestic argument, and as he did not want to become involved in that he turned around and walked home.
About 15 minutes later he was in the passenger seat of a car being driven up Clarence Street towards Beaufort Street. He saw the same man sitting on the verge alongside a tree outside the shop. The man had his legs extended in front of him and O'Hazy could see blood on his trousers. There was an ambulance there. O'Hazy recognised the man as the owner of the kebab shop.
In cross‑examination, O'Hazy said he interpreted all the appellant's body language and the noises coming from him as a man upset, angry and disturbed.
In his evidence, Marco Sorani said the appellant and his wife were like a brother and sister to him. When he was in Perth he would visit their restaurant every day. He had been to their house many times. In April 2004 the appellant asked Sorani to find him a private investigator, because he needed someone to watch his wife. Sorani introduced the appellant to a man called Gus. Sorani said he helped out for a while after that with interpreting, but then he stopped because he did not want to be involved.
On Sunday 4 July 2004 Sorani had a painful pimple between his legs, so he went to a 24‑hour chemist on Beaufort Street. On his way he stopped at the kebab restaurant. The appellant's blue car was parked in the carport. The side door of the premises near the car was open, so Sorani went in and turned right to go into the kitchen. The appellant was coming out and was surprised to see him. The appellant's wife was also there. They all had a laugh at the appellant's surprise and talked for a few minutes, then Sorani went to the toilet because he wanted to look at himself. He returned to the kitchen and spoke to the appellant and his wife. Sorani was going to Sydney, so they talked about that. There was joking about his pimple. The conversation lasted only five or 10 minutes, then Sorani left the premises and went to the chemist. After that, he returned to a friend's house. He then realised his mobile phone was missing. When he could not find it he thought he must have left it in the toilet at the restaurant. He went back. He parked his car on Clarence Street adjacent to the rear of the premises. The side door was open, so he went in and turned left to go to the toilets. He looked in both of them, but his phone was not there. As he came out and looked back down the passageway he saw a body lying there just past the door. He approached, and could see it was Ms Dabag. He did not know, but thought she was dead. There was a lot of blood. He did not touch her. He testified that he was worried about the appellant so he went looking for him. He went to the bakery room, calling the appellant's name. There was no response. When he came out of the kitchen door into the passage, he did not want to walk over the body again, so he left through the front door onto Beaufort Street. He went into Clarence Street, got into his car and drove off. He did not go to the police, nor call them, because he did not want to be involved. That was the sum of his evidence‑in‑chief.
In cross‑examination, Sorani was referred to a statement he made to police on 5 July 2004. He made no mention in that of returning to the restaurant. Instead, he told them that he left the appellant and his wife in the restaurant and went to his girlfriend's house. She was still asleep. He woke her and told her about going to the chemist and that he was going to McDonald's in Tuart Hill, which he did. He said he there bought breakfast for his ex‑wife and children. He then went to his ex‑wife's place, where he had a shower.
He agreed with the appellant's counsel at trial that in fact it was true that he had a shower there and that he had disposed of the shoes he had been wearing at the kebab restaurant. He agreed that when asked by the police for his shoes he lied and gave them a different pair. The police later realised the shoes he gave them were not those he had been wearing, and confronted him about it. He admitted he had given them a different pair. He told the police he had disposed of the others by throwing them next to a bin. Later, the police were not able to find the bin.
Asked in cross‑examination about the car he had been driving on 4 July 2004, he said it was a white Commodore and that his girlfriend had vacuumed the interior of it a couple of days later. Notwithstanding what he told police about his shoes and that he failed to mention returning to the restaurant, Sorani maintained in cross‑examination that he did not lie to the police.
He said in his statement the appellant had let him out the front door. Further in cross‑examination, Sorani agreed he had taken part in a "walk‑through" video recording at the shop with Detective Post. On that occasion he told police the appellant let him out through the side door. However, he said he could no longer remember which door he went out.
Counsel put to the witness some other inconsistencies between his evidence‑in‑chief and what he had told the police, including whether he shook Ms Dabag's hand or hugged her when he left, and whether the music they were playing was Iraqi or Iranian.
Sorani agreed he had been nightclubbing the previous night and had too much to drink. He said he got home about 4.30 or 5.30 am. He could not recall what time he went to the restaurant, but it was early. He agreed there was some confusion in his mind about the sequence of events and what took place.
He agreed the appellant had wanted him to take some documents to friends in Sydney and asked him to come back later that day to pick them up.
He agreed Ms Dabag had made some disapproving comments about him being separated from his wife and living with a 16‑year‑old girl. He said he could not recall what she said.
Sorani said that when he arrived at the restaurant the first time, the appellant and his wife were "very happy" and just working away; there was certainly no arguing or loud voices.
Counsel then put to the witness that when he returned the second time and saw Ms Dabag's body, it was a tremendous shock. Sorani said of course it was. He agreed with counsel's suggestion that he was shocked, upset and distressed. Counsel put to him that on that second occasion the appellant was in the restaurant. Sorani said he did not see him; he must have missed the appellant somehow.
When counsel suggested to Sorani that after the police became involved he felt he may be implicated in Ms Dabag's death, he said he did not want to be involved but never thought for one minute the police would blame him.
He said when he got to the ex‑wife's place that day he changed his clothes. Those he had been wearing he left with her for washing. He said he always did that.
When counsel put to Sorani that the police had told him they thought he was involved, he said they thought he had helped the appellant. They had asked him if he had helped the appellant get rid of anything. He told them that he had not. He confirmed in cross‑examination that the appellant had never asked him to get rid of a weapon or anything of that nature and had never said he had hurt or killed his wife.
In re‑examination Sorani said that he had made a second statement to the police eight days after the first one, because they had kept coming back to him. He said there that what he had told them the first time was true, that he had "just left out some important parts". It was in that second statement he told them that he had returned to the restaurant. He said he told them then because the appellant had told him to tell the truth.
The appellant's "walk‑through video" runs for some two hours. The presently salient features of that include the appellant's description of the condition of the external side door. He told police (and demonstrated) that he let Sorani out the side door, locking it behind him. With the two sliding bolts shot home, that door cannot be opened from outside. From the appellant's account, he and his wife were the only two people then on the premises. The appellant said that when he subsequently found his wife's body, the door was open. He demonstrated it as being ajar (possibly about 30 centimetres or less), such that he had to open it further to go outside.
Clearly, if the door was then open, and if he did not open it (which he said he did not) then his wife must have. The only other alternative is that in fact it was still shut and locked when his wife was killed. That was the prosecution's scenario. If that were so, the appellant had to be the killer.
Ms Dabag had been savagely and deeply cut. There was a great deal of blood. The forensic evidence of bloodstains and bloodstain patterns given by Sergeant Reynolds included a "report of findings" dated 24 June 2005 (exhibit 3). His conclusions included the following.
The bloodstains and bloodstain patterns strongly suggest the neck injury resulting in Ms Dabag's death was inflicted at, or very close to, where her body was located. However, she had moved, or been moved, after infliction of the injury. The exact bloodshed mechanism responsible for the saturated bloodstaining observed on the right leg of the appellant's trousers could not be determined, although features of it suggest, at least in part, large volume passive or arterial flow. At the time of the deposition of the blood responsible for the saturated staining observed on the right frontal aspect of the appellant's trouser leg, it is likely the leg was bent at the knee, about 90 degrees, in a shoe to ground (as opposed to knee to ground) position. It is highly likely that the victim's upper body was in the horizontal or near horizontal position, at or soon after, infliction of the fatal injury.
The report opines that the extent of the bloodstaining on the appellant's right hand was consistent with the hand coming into contact with a large quantity of liquid blood either through immersion, splash, spill or alternatively a quantity of liquid blood being distributed (that is, wiped) over all surface aspects of the hand.
The presence of apparent coagulated blood on the appellant's trousers suggested an interval of time between exposure of the blood source to air and of the subsequent contact transfer of that blood to the trousers. Reynolds said it was not possible to quantify that time interval.
Finally, he noted that the apparent projected bloodstains observed in the appellant's shoes are not consistent with walking or stepping in blood.
Surprisingly there was no reference in Reynold's report to bloodstains on the inside surface of the external side door, and on the door frame itself. They can be seen (although not well) in photographs exhibit 11.2 and 11.2. Nor was Reynolds asked anything about them in either evidence‑in‑chief or cross‑examination.
Elaborating in evidence upon his report, he said the blood spatter patterns indicate the victim was no higher than one metre (and probably closer than that) to ground level when that blood originated. The pattern of blood on Ms Dabag's clothing indicates that at the time or very soon after the injury was inflicted, her upper body was in an horizontal or near horizontal position. The sides and straps of her brassiere were heavily bloodstained, but the cups and front had no blood on them.
The appellant's trousers were bloodstained. There was heavy bloodstaining on the right leg, particularly in the area around the thigh and knee, on the frontal aspect and extending around to the side. Reynolds described these as "predominantly saturated bloodstains". His observations suggested a mechanism such as a splash or spill or alternatively deposition by arterial spray. In any event, movement was involved. In addition, the pattern was consistent with the knee being bent 90 per cent at the time with the right foot flat on the ground.
There was significantly less blood on the left trouser leg. There were some contact stains and on the lower left frontal aspect of the left leg, what appeared to be clotted bloodstains. When blood is exposed to air, the clotting process begins generally within 90 seconds to two minutes. He was unable to quantify how much time had elapsed between the exposure of that blood to the air and the time it was transferred to the left trouser leg, although there had to be some time frame. There is a lot of variability between people, and the process is also dependent upon environmental factors.
There was projected blood on the upper surfaces of the appellant's shoes. That was not a result of walking or stepping in blood.
From photographs, Reynolds said that both the appellant's hands appeared to be bloodstained. The right hand in particular was heavily stained (AB 1/60) -
"In the photographs that I saw it appeared that essentially every surface of the hand was bloodstained. It was within the creases of the skin and on all the varying oriented surfaces such as in between the fingers, the palms, etcetera."
He added (AB 1/61) -
"My conclusion is that it has been exposed to a large volume of blood. In my report I used the terminology 'immersion', for example, if you put your hand into a large volume of blood or alternatively if there was a quantity of blood splashed onto the hand or again if blood was wiped over the many surfaces of the hand. However, the wiping motion I don't think is just incidental contact. I think it's an action, as opposed to repeated contact in just one area."
In relation to his conclusion that the victim's body had been moved, he explained he had reached that conclusion because there was a number of projected stains, the directionality of which led back to an area to the side of her head. There was also a blood void in that area which suggested that the victim's head had been in that position and then subsequently moved to the position in which she was found. He said it was not very far away; it was a very short distance, which he estimated would be in the vicinity of 10 or 15 centimetres for the movement of her head.
He was asked about this in cross‑examination (AB 1/67‑69) -
"It is clear, is it not, from what you have observed, that the body had been moved post‑impact?‑‑‑It certainly appears to, yes.
And then there was an area of bloodstaining on the face of the victim?‑‑‑Yes.
Was that consistent with people in fact touching the face of the victim, do you think?‑‑‑If the victim's face was covered in blood or the person's hands were covered in blood it could leave bloodstaining such as that.
So they are two possible scenarios; either that the victim's face was covered in blood when somebody touched it or a person's hand was covered in blood when they touched the face?‑‑‑Correct.
All right. You then examined certain items as far as the accused Mr Mahmood is concerned?‑‑‑Yes.
And I'm referring then to page 5?‑‑‑Yes.
As far as the right hand is concerned - and this is the last paragraph - it was suggested that contact between the hand and a large volume of liquid blood through immersion, a large splash or spill or, alternatively, a sufficient quantity of blood being wiped over all aspects of the hand surface?‑‑‑Yes.
Would you agree with me that the amount of blood deposited, for example, on the right hand [sic could] be consistent with a person such as the accused actually touching either the deceased or the deceased's clothing?‑‑‑I would suggest that it could be consistent with that as long as there was other movement or contact with the blood source to put that blood over all the surfaces of the hand.
So that if in fact at the time the accused was touching the clothing or the person of the deceased, that there was movement of either the clothing or the deceased or a blood supply, you could expect that type of marking on the hand?‑‑‑As I said, the bloodstaining I observed was within the creases of the hand, within all the fingers between the joins et cetera so repeated contact with a single bloodstained area in the same way I don't think would provide that sort of bloodstaining. It was on all surfaces of the hand.
That would be consistent, would it not, for example, if clothing was saturated with blood and you have held the clothing and held the person - I accept depending on how you have got your hand at the time and those sort of factors and whether there's movement of the clothing - that could cause that type of staining to appear on the hands?‑‑‑For there to be transfer from the clothing to the hand there obviously needs to be contact.
Yes?‑‑‑The contact, I would assume, would be between the palm and the finger areas with the clothing. That contact in this case I don't think then explains how you get it between all the fingers and on the back of the hand.
Are you able to - when you refer to - you suggested contact between the hand and a large volume of liquid blood. There's a number of alternatives: immersion, which we understand?‑‑‑Correct.
A large splash?‑‑‑Yes.
What do you refer to as a large splash?‑‑‑For example, if a quantity of blood - a liquid blood was available and splashed onto the top of the hand.
Then in fact came down through the ridges. Is that correct?‑‑‑Yeah.
A large spill or a spill?‑‑‑Similar terminology.
Are they in fact the same, a splash and a spill, or slightly different?‑‑‑It would depend on what terminology list you read.
Or a sufficient quantity of blood being wiped over all aspects of the hand surface?‑‑‑Yes."
The evidence was that swabs taken from the blood on the (inside of) the door and subjected to chemical testing, were found to be blood. DNA analysis showed they were consistent with the deceased's DNA, to a very high degree of probability. There was no suggestion at trial that the blood on the door was other than that of the deceased.
In opening, the State prosecutor explained the way the State sought to rely upon this (AB 1/28 ‑ 29):
"The prosecution says that … is strongly inferential that when the deceased woman had her throat cut that side door was closed because bloodstaining is on the inside of that door. It is a matter for you to assess but once this act of cutting her throat occurred the deceased woman would be in no condition to put her blood on the inside of that door."
In his closing, the State prosecutor elaborated upon that proposition (at AB 2/305 ‑ 306):
"Obviously from what happened the deceased didn't put her own blood on the back of that door. You can tell that. It's plain as anything from the position in which she was found. So how did her blood get on the back door? More importantly, what position was the back or side door in when the blood went onto the back door? You remember Mr O'Hazy telling you at some time around 9 o'clock he came out of that laneway and he heard a wailing, and we know it's the accused, and he later realised it was the accused man whom he knew from the Kebab Istan [sic] restaurant.
But he was able to look at - do you remember that evidence? He was able to look in. Plainly that door was wide open. He was able to look in and see the accused man banging with his hands on the wall inside. He could see the passageway, he could see that happening. Obviously the door is wide open. What I'm suggesting to you is that the accused opened that door after his wife was killed and if the accused was the only person in the restaurant with his wife, then I'm sure you can see that the conclusion is obvious, but if you have a look at the door, it's a matter for you but you will see that the door is raised. There is a [sic] some blood flow near the door which wouldn't be interfered with by the door because the foot of the door is raised.
If you look at the position quite high up on the door, swabs 60 and 61, plainly the deceased woman's blood has been transferred to that door. It's a very narrow passageway. It would be very difficult to have that door half open and have this sort of incident occur in the way that we know it must have."
Counsel for the appellant seemed to cast his submissions on the basis that the only way in which the prosecution had relied upon the presence of the deceased's blood on the door was to suggest it could only have been put there by the murderer. The appellant's submission then is that her blood on the door was "no more probative than the presence of the deceased's blood anywhere else on the premises". But that is a non sequitur. Whether or not the deceased's blood anywhere else on the premises had probative value would depend upon other circumstances, such as the particular location, the blood pattern, any other connection with the appellant or anyone else, and so on. The real strength of the appellant's submission about this is that the blood on the door is just as consistent with the appellant's own account of what happened as it is with him being the killer. On his account, he had the deceased propped against his knee and thigh and felt her face and chest to see if she was breathing. Given the amount of blood from her cut throat on his hands, the blood on the door is consistent with him opening the door to go outside. He described, and again demonstrated, the door being "open" in the sense that it was ajar, and he had opened it wider to go out.
The appellant submits that the trial Judge should have directed the jury that, contrary to the submission of the State prosecutor, the presence of the deceased's blood on the door was not probative in any way of the guilt of the appellant.
The direction which was in fact given by the trial Judge and which is complained of here, was (AB 2/362):
"In this case the state relies upon two DNA results as being probative of the accused's guilt. The first is that the deceased's blood is on the back of the side door to the restaurant. The State says that this is consistent with the accused opening the door after he had killed the deceased. Members of the jury, this is a matter for you but before you come that [sic] conclusion you would have to exclude as a reasonable hypothesis that the door was already open but the accused merely touched it or pulled it open further after he - when he went through the door after finding his wife's body.
You would also have to exclude as a reasonable hypothesis that another person put the blood there when they opened the door."
No point was taken about this direction at trial.
Before examining the correctness or otherwise of that direction, it is necessary to appreciate that the appellant's understanding of how the prosecution sought to rely upon this evidence does not quite accord with the way it was put by the State. As further explained in the course of the respondent's submissions, the point which the prosecution sought to make here was that the jury was being asked to find that the fact that the deceased's blood was on the inside of the door indicated the door was closed when she was killed - and if that was so, then the appellant had to be the killer.
Logically, that would be correct if it could be concluded the door was actually shut at that time. The prosecution theory in this regard depends upon acceptance that the door could only have been fully open or fully closed. If fully open, its inside face would have been towards the wall; the external side would have been facing the interior of the passageway, and there was no blood on that. So positioned, the deceased's blood could not have gotten on the interior face of the door. That was the scenario advanced by the State prosecutor, which he said was to be inferred from the evidence of O'Hazy. The suggestion was that because O'Hazy was able to look through the doorway and into the corridor and see the appellant banging on the wall, "plainly that door was wide open" and that the appellant had opened it after he had killed his wife. But as I have observed, that proposition assumes that the only other position in which the door could have been for blood to be on its inside face was that it was fully shut. That is plainly not the only possibility. If it was open, but only slightly ajar (as said by the appellant), then it was entirely possible that the blood could have come to be on it by him opening it wider, as he described. The presence of the deceased's blood on the door does not show, nor give rise to an inference, that the door was fully shut when the deceased was killed.
Be all this as it may, the evidence was relevant and admissible. There was little doubt the blood was that of the deceased. It was found on a door in close proximity to her body. It was an integral part of the crime scene and clearly related to the killing. Given what had been put by counsel, the trial Judge had to give the jury some assistance in her directions about how to deal with it.
The trial Judge did not tell the jury that the presence of the deceased's blood on the door was, nor that it could be, probative of the guilt of the appellant. What she told them was that it was a matter for them whether they accepted it was consistent with the appellant having opened the door after he killed the deceased. In other words, if inclined to conclude otherwise on the evidence that he had done so, it was a matter for them whether this evidence was or was not inconsistent with that conclusion. However, she then directed them that before they could come to that conclusion they would have to exclude as a reasonable hypothesis that the door was already open and the appellant merely touched it or pulled it open further when he went through it after finding his wife's body. She further directed them they would also have to exclude the reasonable possibility that a person other than the appellant put the blood there when they opened the door (including some other person who may have killed the deceased).
If the jury had proper regard to these directions (which it must be assumed they did) they could not possibly have taken the evidence of the deceased's blood on the door as tending to prove his guilt.
One final submission is advanced by the appellant in support of this ground. It is that the prejudicial effect of the direction by her Honour was "compounded because it made expert scientific evidence of the presence of the deceased's blood on the door (less than one in 10 billion chance that it was the blood of another …) appear relevant". It is submitted that the direction, together with the closing address by the State prosecutor, was not "only irrelevant but also 'dresses up matters which are within the ordinary experience of the tribunal of fact in a beguiling scientific garb which may conceal the blemishes within' (see JD Heydon (ed) Cross on Evidence (7th ed 2004) at 930 [29050])".
I think this submission is a red herring. There was no issue about whether or not the blood on the door was that of the deceased. The scientific evidence tending to show that it was, went only to that fact - it had nothing to do with the inferences which might or might not be drawn from the fact. It was clearly relevant to show that the blood was that of the deceased. There would have been obvious implications if the bloodstains were shown to be from someone other than the deceased, in circumstances in which there was no wound on the appellant.
The alternative way in which this ground is put is predicated on the assumption that the deceased's blood on the door was capable of being probative of the appellant's guilt. I have already said it was not, and that the trial Judge did not convey to the jury that it was. Furthermore, the directions in fact given by her Honour effectively covered the various points (i) ‑ (v) inclusive, enumerated in the ground.
This ground is not made out.
Ground 4 - Blood in the pocket
This is a lengthy ground which contains a number of alternative contentions. It asserts the trial Judge erred in:
(1)failing to direct the jury that they could not draw an inference that the deceased's bloodstaining in the appellant's pocket came from the murder weapon. This is in effect particularised as being so because the State prosecutor had not raised that proposition with the blood spatter expert (Reynolds);
(2)failing to direct the jury to exercise caution in drawing an inference because the State had not put the matter to the blood spatter expert;
(3)directing the jury to hypothesise whether the bloodstain in the appellant's pocket was the result of putting the murder weapon in the pocket or from the appellant putting his bloodstained hand in the pocket. In effect, this is particularised as being because the appellant had never had the opportunity to respond to such an allegation either in evidence‑in‑chief or cross‑examination and because it had not been raised with Reynolds.
This ground arises out of the argument put to the jury by the State prosecutor in his closing address when he was talking about the absence of a murder weapon. He said (AB 2/306 ‑ 307):
"No‑one is suggesting Mr Sorani is responsible for this but one aspect of his evidence you might find interesting and that is that when he came back that second time quite naturally he called out a nickname, uncle whatever the name was he used, for the accused and there was no response. He even went through the restaurant and he described that to you, going through the restaurant, through the kitchen and ultimately out through the front. He left by the front. He didn't want to come back and step over the body. He went out the front of the restaurant and either there within the restaurant or roundabout there was no sign of the accused. Why might that be?
You will be told by her Honour not to speculate about things but you know that the murder weapon has not been found and I'm suggesting to you that the accused was in fact, contrary to his evidence, outside the restaurant at least at that point and he must have been for more than a few minutes.
You will see an interesting DNA result in that blood was found in the inside of his right - this right‑handed accused's pocket, jeans pocket, inside, actually inside his right pocket. What I'm suggesting is he has put the weapon, whatever it was, in there and he has been absent from the restaurant disposing of that before returning and then carrying out this pretence that someone, meaning someone else, killed his wife." (My emphasis).
The portion I have emphasised above is that of which the appellant now complains. No objection was taken to it at trial and no direction about it was sought.
The evidence about this was given by Mr Bagdonavicius. The forensic biology report (exhibit 14), described their findings about the pants worn by the appellant, referenced as ATC 2:
"ATC 2 - Pants: The size 112R, blue/grey Weekenders brand pants were received in a worn and stained condition. Red/brown staining on the front legs, rear right leg, inside front right pocket and the inside and outside of the right rear pocket gave positive reactions for blood when screened chemically. Stains on the front right thigh region, front left lower leg region and inside rear pocket were sampled for cellular material and submitted for DNA analysis.
Mixed DNA profiles consistent with having come [sic from] two people were recovered. The mixed DNA profiles recovered from the front right thigh region and the front left lower leg region could be separated into major and minor components. The major component DNA profiles matched Chnar DABAG'S reference DNA profile. The minor component DNA profiles could not be interpreted.
The mixed DNA profile recovered from the stain on the inside rear pocket is tabled later in the report."
At page 18 of his report, Mr Bagdonavicius wrote:
"Mixed DNA profiles recovered from cellular material in the stain on the inside pocket of the pants (ATC 2) and MAHMOOD'S top of head swab (ATC 10) are consistent with having come from two people. Dlshad Hamad MAHMOOD and Chnar DABAG cannot be excluded as possible contributors to these mixed DNA profiles.
If it is assumed that there are two people contributing to the mixtures then it is at least 547 million times more likely to find these mixed DNA profiles if they come from MAHMOOD and DABAG than if they came from MAHMOOD and an unknown person."
He confirmed this, but did not add anything more to it in his testimony.
It is common ground that no other witness was asked about the bloodstains in the appellant's trousers pocket. Counsel for the appellant points out that although Reynolds gave extensive evidence about other bloodstains, he said nothing (and was not asked) about the pattern of blood in the inside of the front right pocket, nor whether that pattern could have arisen from a weapon. He further submits that nor was any evidence given as to whether the blood pattern on the inside of the right pocket was any different from the blood pattern inside the back right pocket (in which there was no suggestion that a weapon had been deposited). He submits that in any event, because the suggestion about the blood in the pocket coming from a weapon was made only in closing, and because it was never put to Reynolds that the blood pattern on the right side of the trousers could have occurred from the weapon, the appellant never had the opportunity to rebut the suggestion and the jury were encouraged to speculate about a matter to which no evidence had been directed.
For the appellant it is submitted that, what counsel describes as "the failure" of the State prosecutor to put this matter to its blood spatter expert in evidence‑in‑chief required one of three directions. First, it is said that although the law is not settled on this point, the trial Judge should have directed the jury that the failure by the State prosecutor to put the matter to Reynolds meant the jury should draw the inference that the bloodstain in the pocket did not come from a murder weapon. Secondly, it is submitted that a direction should have been given by her Honour that as evidence had not been given by an expert witness for the prosecution about the bloodstain in the pocket, the jury should not speculate about what that witness might have said. Finally, it is submitted that at the very least, her Honour should have directed the jury that caution should be exercised in drawing such an inference because the State had not put the matter to its blood spatter expert in‑chief. In his submission on this, counsel for the appellant asserts that trial counsel requested the Judge to direct the jury in that way. However, no such request was made. What counsel is referring to is an argument which was put by trial counsel in his address to the jury (at AB 2/318 ‑ 319):
"Then they suggest to you, 'Oh, you know, he had the knife; had the knife in the pocket.' What, they want you to guess and speculate. The witness is called. Why not ask the blood‑spatter man, 'Listen, the stain that you say is on the pocket, is that consistent with a bloodstained knife being put into the pocket?' Why not just ask him when he is in the witness box instead of not asking the witness and then three days later suggesting that you can guess and you can speculate."
In fact it was put to the appellant in cross‑examination that having killed his wife with a knife, he put the knife in his pocket, went outside the restaurant, disposed of the knife and then returned. The point was also taken up in re‑examination. The relevant portion of the transcript is at the end of the cross‑examination and the beginning of re‑examination (AB 2/277 ‑ 278):
"‑ ‑ ‑ you killed her with a knife?‑‑‑I swear by God we don't have any argument. We don't have anything between me and my wife. We was very happy that morning.
And you killed her in a particular way by putting her body over your right knee. That's, you remember, how you did it?‑‑‑Nothing happened.
Just much like the way we saw in the video there when you were showing the detectives?‑‑‑That's not me. That's not true.
Then you put the knife in your pocket and you opened the back door and you went outside?‑‑‑The door was open, I swear. When I found my wife's body the door was open.
And you ran, but you ran away a distance, didn't you?‑‑‑Your Honour, I believe I am here just to answer the question. If you give me permission answer more question and my question is answer please.
JENKINS J: Sorry?‑‑‑If - I know I am here to answer the question but I will answer more question if you give me permission please.
I don't think so, Mr Mahmood.
DEMPSTER, MR: You said you ran outside to both sides. Do you remember?‑‑‑Yeah, that's right.
You ran out to both sides?‑‑‑That's right.
I'm suggesting you ran further away, away from the restaurant. Isn't that what happened?‑‑‑No, it's just on footpath.
And you were away from the restaurant for some time?‑‑‑No.
More than a few minutes?‑‑‑No.
And you disposed of the knife?‑‑‑No.
You hid it?‑‑‑No.
And then you came back?‑‑‑No.
And then you pretended that someone else had killed your wife?‑‑‑No.
And when you said, 'Someone killed my wife', that was true?‑‑‑I didn't do it. Someone is do it.
Nothing further, your Honour.
JENKINS J: Is there any re‑examination, Mr Bowden?
BOWDEN, MR: If I may, thank you.
What they're saying is that you were angry because your wife wouldn't have sex with you. What they're saying is that you were angry with your wife and had an argument that day?‑‑‑We don't have any argument.
They're saying that you ran out of the restaurant, up the street or down the alley, with a knife in your hand and threw it away ‑ ‑ ‑
JENKINS J: Well ‑ ‑ ‑?‑‑‑That's not true.
The allegation was that it was in his pocket ‑ ‑ ‑
BOWDEN, MR: I'm sorry.
JENKINS J: It doesn't matter much but ‑ ‑ ‑
BOWDEN, MR: They're saying that you had a knife in your pocket and ran out of the restaurant and threw it away?‑‑‑It's not true.
Did you have anything at all to do with the killing of your wife?‑‑‑Sorry? No."
In her summing‑up, the trial Judge referred to the point at AB 2/362:
"The second result the state relies upon is the blood found in the accused's pocket. The state says that 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."
The trial Judge made no other specific reference to the point. She summarised the State case in this way (AB 2/366 ‑ 367):
"… Mr Dempster opened and closed for the state on the basis that the state relied upon seven matters to prove that the accused killed his wife. The first is opportunity; that is, that only the accused and Ms Dbag [sic] were in the restaurant on this morning and that even on the accused's own evidence, he had in fact locked the side door.
Secondly, the state relies upon motive and I have already put to you what the state says in that regard. Thirdly the state relies upon the lie about whether the two were arguing that morning. Fourthly, the accused relies upon the blood on the accused's trousers. Fifthly, the state relies upon the blood all over the accused's hands. Six, the state relies upon the blood on the accused's shoes and, lastly, the state relies upon the deceased's blood on the inside of the side door.
The state says, looking at all that surrounding material, you should be satisfied beyond reasonable doubt that the accused killed his wife and the state says that it is unreasonable to believe that on a quiet Sunday morning, where the deceased and the accused were alone in the shop that another person happened to come by, that the deceased opened the side door to that person, just happened to be walking past down that passage door as this person arrived at the shop, that the deceased let that person in, that person then slit her throat and left without the accused knowing about it or without anybody else seeing that person.
The state says that's really the only other hypothesis open on the evidence and the state says that simply is not a reasonable hypothesis. It doesn't accord with commonsense and it simply doesn't accord with the facts as you know them to be. So that's the state case."
She then gave a summary of the defence case as put by counsel. It is not presently necessary to say anything about that.
The immediate observation which may be made is that it is not correct to assert (as this ground does) that the appellant had never had an opportunity to respond to the point because it had never been raised with him in evidence‑in‑chief or cross‑examination. It plainly was raised in cross‑examination and responded to in re‑examination.
Next, I would not regard what her Honour said to the jury about what the State had put to them concerning the bloodstain in the appellant's trouser pocket as a direction to hypothesise (as it is characterised in this ground). Indeed, her Honour began by saying the significance of the evidence upon which the State relied in that regard was a matter for them, and went on to warn them that they could not draw that inference unless they could exclude as reasonable possibilities, any other means by which the blood could have come to be there. She instanced the appellant (innocently) putting his bloodstained hand in his pocket, whether to get something out, to look for something or just out of habit. Again, assuming the jury complied with her Honour's directions, they could not have inferred the blood in the pocket was the result of the appellant putting the murder weapon there, because on no reasonable view could those other possibilities have been excluded. That seems to me to give the resolution of this ground, because even were there to have been some unfairness arising out of the fact the State prosecutor had not raised the matter with the blood spatter expert, or (because of that) her Honour ought to have directed the jury in the terms now contended for, there was no miscarriage of justice. The result as to that would inevitably have been the same.
In any event, I am unable to accept the submission that the trial Judge erred in failing to direct the jury that because the matter had not been raised with Reynolds in his evidence‑in‑chief by the State prosecutor, they could not draw the inference that the bloodstain in the pocket may possibly have come from the murder weapon; much less that for that reason she was required to direct them to find (Appeal TS 46) that the bloodstain did not come from a knife being put in the pocket.
This may be described as a Jones v Dunkel point (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).
In support of this submission, counsel relied first on a number of civil law authorities. Particular reliance is placed upon the obiter remarks of Handley JA in Commercial Union Assurance Co of Australasia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 ‑ 419:
"There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates 'as the most natural inference that the party fears to do so'. This fear is then 'some evidence' that such examination in chief 'would have exposed facts unfavourable to the party': see Jones v Dunkel (at 320‑321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964‑5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.
There is in fact extensive case law in the United States on this question although it is not referred to in Wigmore, Evidence, 3rd ed (1940). It may be found summarised in 5 ALR 2d, par 25 at 949‑951. One of the leading cases is Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896), a decision of the Appellate Division of the Supreme Court of New York. The judgment of the Court was given by Follett J who said (at 276):
'In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favourable to the party … The existence of this rule is not disputed but it is urged that it is not applicable to this case because the daughter was produced as a witness, and that no presumption arises from the plaintiff's failure to interrogate her, that her testimony would have been unfavourable to him. I think the rule is as applicable to a case in which a party fails to interrogate a friendly witness, so situated as to be presumed to have knowledge of the existence or non‑existence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favourable to the party's case is stronger than the one which arises from the failure to produce such a person as a witness.'"
Conclusion
As in my opinion none of grounds 1 to 4 inclusive has been made out, ground 5 has been abandoned and leave to appeal was refused on ground 6, the appeal must be dismissed.
McLURE JA: The appellant appeals against his conviction for the wilful murder of his wife, Chnar Dabag. I agree with Roberts-Smith JA that the appeal should be dismissed. I propose to state my own reasons for that conclusion.
There are four grounds of appeal. The first two relate to a statement concerning the appellant's demeanour made by the prosecutor in his closing address, the third relates to the trial Judge's direction as to blood stains on the back of the side door to the premises where Mrs Dabag was killed and the fourth relates to the rule in Jones v Dunkel. In order to understand these reasons it is necessary to sketch the background facts and the cases for the prosecution and defence.
It was common cause that Mrs Dabag had been murdered at, or very close to where she was found in the passage of the couple's restaurant/takeaway food premises on the corner of Beaufort and Clarence Streets, Mt Lawley ("the premises"). The premises were L‑shaped. The front of the premises on Beaufort Street occupied the entire frontage of the property and comprised a counter area and what is described as the eatery ("the front of the premises"). There is a laneway at the rear of the premises which is parallel to Beaufort Street. Attached to and from the front of the premises to the laneway is a building that is approximately half the width of the front of the premises and which runs along the western boundary (from the laneway facing Beaufort Street) of the property ("the rear of the premises"). The eastern side of the rear of the premises faces Clarence Street. On the eastern side of the rear of the premises is a carport. Just in front of the carport is a side door to the premises ("the side door"). The side door is sometimes referred to in evidence as the back door. There is an internal passage running down the length of the eastern wall of the rear of the premises which connects, via a door, to the front part of the premises. In addition to the passageway, the rear of the premises comprise a kitchen, bakery, storerooms and at the very back, two toilets, all of which are off the passage.
The side door opens inwards and to 180 degrees so when fully opened it is flush against the eastern wall of the rear of the premises. On the morning of the murder the side door was bolted on the inside. When the side door opens to 90 degrees, the door almost entirely closes off the passage to the right (north). Mrs Dabag's body was found just to the north of the side door with her head facing in the direction of Beaufort Street. Her throat had been cut. She was murdered at around 8.45 am on Sunday 4 July 2004.
It was common cause that on Sunday 4 July Mr Marco Sorani had visited the couple at the premises and had left by the side door (which the appellant had locked after him) before Mrs Dabag was murdered.
It was also common cause that the applicant thought that his wife (of 24 years and the mother of his six children) was having an affair with one or more other men. The appellant gave evidence. He agreed in cross‑examination that he had hired two men, introduced by Mr Sorani, to investigate the appellant's suspicions that his wife was cheating on him. The appellant had discussed with one of the investigators that if that was the case, he could divorce his wife but she would get his money or perhaps the shop, neither of which the appellant wanted. The appellant gave details of his wife's movements to the investigators whose task was to watch her. At one stage, the appellant paid $1500 for a tracking device to be placed in his wife's car. He said he did not ask his wife about his suspicions because he knew she would lie to him. The investigators were unable to find any evidence of Mrs Dabag's infidelity but the appellant required them to continue their investigations. The appellant believed that the investigators "didn't give me any correct evidence and I felt they [were] lying to me" (T 322). The appellant also gave evidence that on the morning of and before the murder he thought that his wife wanted sex but she said she did not.
There was prosecution evidence from Mrs McDonald that she heard people in the restaurant arguing on the Sunday morning prior to the murder and from another witness (Mr O'Hazy) that as he was walking down Clarence Street before 9 o'clock on that Sunday the side door of the premises was fully open and he could see and hear that the appellant was in a very distressed state. This was before the arrival of the ambulance and police.
Mr Sorani who gave evidence for the prosecution said he later returned to the premises because he had left his mobile phone behind. He went in the side door which was open and went left down the passage to the toilets. When he came out of the toilets he saw Mrs Dabag's body lying in the passage. He went looking in the premises for the appellant but he was not there. He called the appellant's name and had no response. He then left the premises by the front door. Mr Sorani did not mention to police when first interviewed that he had returned to the premises. Further, when the police asked for the shoes he was wearing on the day in question he gave them the wrong ones, having disposed of the shoes he had been wearing. He also admitted that his girlfriend had cleaned his car two days after the murder. It was not put to Mr Sorani in cross‑examination that he had killed Mrs Dabag. Mr Sorani's evidence was that the police thought he had helped the appellant to get rid of the weapon.
The forensic evidence was that the throat wound was atypical. It was not a slashing injury and was described by the prosecution as short, horizontal, clinical and efficient. Further, the victim was not standing at the time the wound was inflicted. The medical evidence was that the victim's upper body was horizontal or near horizontal at or soon after her throat was cut. The appellant's right hand (he was right‑handed) was saturated in the victim's blood. The bloodstains on the appellant's trousers were consistent with the position of his wife's body at or soon after her throat was cut. Moreover, there was blood on the appellant's shoes which appeared to be projected under force although the expert (Sergeant Reynolds) agreed that it may have resulted from spilling or splashing.
The trial Judge summarised the prosecution case as follows (at T 381):
" … [T]he state relied upon seven matters to prove that the accused killed his wife. The first is opportunity; that is, that only the accused and Ms Dabag were in the restaurant on this morning and that even on the accused's own evidence, he had in fact locked the side door.
Secondly the state relies upon motive and I have already put to you what the state says in that regard. Thirdly the state relies upon the lie about whether the two were arguing that morning. Fourthly, the accused relies upon the blood on the accused's trousers. Fifthly, the state relies upon the blood all over the accused's hands. Six, the state relies upon the blood on the accused's shoes and, lastly, the state relies upon the deceased's blood on the inside of the side door.
The state says, looking at all that surrounding material, you should be satisfied beyond reasonable doubt that the accused killed his wife and the state says that it is unreasonable to believe that on a quiet Sunday morning, where the deceased and the accused were alone in the shop that another person happened to come by, that the deceased opened the side door to that person, just happened to be walking past down that passage door as this person arrived at the shop, that the deceased let that person in, that person then slit her throat and left without the accused knowing about it or without anybody else seeing that person."
The appellant denied killing his wife. The defence case at trial was that the appellant's wife had said she was going to the toilet and when she had not returned the appellant turned down the music playing in the premises and called her. He went into the passage and saw his wife lying on the floor bleeding. The side door was ajar. He lifted her upper body against his thigh but found no breathing and then went outside to see if there was anyone around. He denied that he and his wife had argued that morning. The appellant took part in a video‑recorded interview with police on the evening of the murder and the following week he went with police on a walk through the restaurant which was also recorded. The appellant's explanation of events given in the interview with police and the subsequent walk through the premises was consistent with his evidence at trial and generally with the forensic evidence.
Grounds 1 and 2
The defence tendered by consent part of the walk through video in order to demonstrate the position in which the appellant said he rested his wife. The defence offered to tender the balance of the video however the offer was not accepted by the prosecution. In parts of the video not tendered by the defence the appellant occasionally demonstrated emotion. Filming ceased on a number of occasions for the stated purpose of enabling the appellant to compose himself.
In closing submissions, the prosecutor said (at T 10):
"Some other things you can take into account: did you notice in the walk‑through, the extract which was played to you, the accused man describing how he found his wife and how he held her and I'm suggesting to you that how he held her was a matter well within his knowledge, but 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?
Here is a man who is accused of killing his wife and the police ask him to even take part in this and asked those sort of questions. You saw his reaction, his demeanour. It was, I suggest to you cold‑blooded and clinical and this killing was cold‑blooded and clinical."
Defence counsel in his closing directly challenged the prosecutor's remarks. He reminded the jury that he had been happy to tender the whole of the video but that the prosecution had issues as to that course. He said it was unfair of the prosecution to then turn around and rely on a short section of the video where he was not seen to be emotional. The following day defence counsel applied to re‑open the defence to play short extracts of the walk through video that were said to contradict the prosecutor's comment on the appellant's demeanour.
The trial Judge refused leave to re‑open. The trial Judge's assessment was that the issue was very marginally relevant because there was evidence from an independent witness and in the appellant's video record of interview with police which disclosed that he was upset on numerous occasions on the day of the murder.
In her summing up, the trial Judge referred to this matter and advised the jury that it would be unwise for them to draw any adverse view against the appellant because of his demeanour in the walk through video. She referred to the reasons for that including first, they had only seen a portion of the video; second, the video was taken some days after the death; and third, it was more relevant, if they were going to take demeanour into account, to have regard to the appellant's demeanour during the video record of interview and Mr O'Hazy's evidence of the very distressed state of the appellant just after the murder.
The appellant contends in ground 1 that the trial Judge erred in refusing the application to re‑open for the purpose of "showing the rest of the walk‑through video, including the portions of the video in which the Appellant was crying". The ground of appeal misstates the application. At trial defence counsel said it would be confined to a short extract of the video in a number of places where the tape had to be stopped to enable the appellant to compose himself. The appellant contends in the alternative (ground 2) that the trial Judge should have directed the jury that the appellant's demeanour in the walk through video was irrelevant and must be disregarded.
The walk through video was not admissible except by consent. The short section was tendered by the defence without limitation as to purpose and without any suggestion that it made other sections of the video relating to the appellant's demeanour also admissible in order to avoid a misleading impression. Defence counsel sought to rectify these matters by making the application to re‑open.
Neither party referred this Court to the legal principles that apply to an application by the defence to re‑open. Where the prosecution seeks to call further evidence after the close of the defence case, the Judge has a discretion to allow that course only in exceptional circumstances: R v Chin (1985) 157 CLR 671, 676, 684 ‑ 685. The High Court has not to my knowledge considered the circumstances in which the defence may re‑open its case after closing addresses. That question was considered by the Queensland Court of Appeal in Dyett v Jorgensen [1995] 2 Qd R 1. In that case the appellant was alleged to have assaulted a passenger in his taxi. After the parties had closed their cases and the Magistrate had reserved his decision, defence counsel applied to re‑open on the basis that he had been informed earlier that morning that a witness was able to testify that the complainant had admitted that the offence never took place. Counsel sought to recall two prosecution witnesses and one defence witness. The application was refused. On appeal, the Court held that the case ought to have been re‑opened. Pincus JA (with whom McPherson and Williams JA agreed) said (at 5):
" … there was no suggestion that the course proposed would involve any substantial inconvenience or expense and the additional evidence appeared to be both brief and material. Where it does not appear that there has been any conscious decision to omit the additional evidence sought to be called, nor that there is any practical obstacle in the way of allowing a re‑opening, I think a court would often incline towards allowing the defence a re-opening to call sufficiently important evidence, even after addresses, in a criminal case."
See also R v Massey [2000] ACTSC 107 at [29]; R v Blobel [2001] SASC 374 at [98], [100]. These authorities provide support for the proposition that the central question is whether the interests of justice and fairness to the accused require re‑opening of the defence case. I propose to apply that principle. The assessment will be affected by the issues in the case and the substance of the proposed evidence.
It was not the State case that the murder was planned and premeditated. Its case was that the murder resulted from an argument between the appellant and his wife but that the manner of the killing was cool and efficient as was the disposal of the weapon. It was part of the defence case that the appellant's highly distressed state shortly after the murder, of which Mr O'Hazy gave evidence, was inconsistent with the cool efficiency attributed by the prosecution to the killer.
The full length of the walk through video, which is in excess of two hours, is relevant to an assessment of demeanour and does not unequivocally contradict the comment made by the prosecutor. It is the case that on a number of occasions the appellant appears to be crying and filming ceases on a number of occasions, either at the suggestion of the police officer accompanying the appellant on the walk through or at the appellant's request. However, the appellant's emotions are (at least) notably muted or muffled. Further, the extremely solicitous conduct of the police officer, which appears to be based on an expectation of how an innocent spouse might react, highlights the contrast with the appellant's actual presentation. However, sections of the video arguably reflect on the appellant's demeanour in the scene tendered in evidence. For example, on the first occasion the appellant went to the area of the passage where his wife was found (which was prior to the demonstration tendered in evidence) the appellant appears to start crying and the video ceases for a short time.
I do not accept the trial Judge's characterisation of the subject of the prosecution comment as being very marginally relevant. It links with the prosecution case relating to the act of killing although it is less directly connected with the defence case which centred on the appellant's reaction on the day of the murder. If the prosecution wished to persist with its submission based on the appellant's demeanour in the extract from the walk through video, the balance of the video was also relevant to that matter. It was only if the prosecution did not wish to rely on the appellant's demeanour in the video extract tendered in evidence that the trial Judge could have directed the jury that the appellant's demeanour was irrelevant and must not be taken into account.
There remains the question whether the trial Judge erred in refusing leave to re‑open. There was no significant practical obstacle to that course. The central question is whether the proposed evidence was sufficiently material to warrant re‑opening. I am not satisfied that it was. In particular, I am not satisfied that it would have been to the appellant's forensic advantage to focus attention on his demeanour throughout the walk through video. In that light, the trial Judge's comment to the jury is to the appellant's advantage. There being no miscarriage of justice, I would dismiss grounds 1 and 2.
Ground 3
The appellant complains of the trial Judge's direction about the blood stain on the back (internal aspect) of the side door. The trial Judge said (at T 377):
"In this case the state relies upon two DNA results as being probative of the accused's guilt. The first is that the deceased's blood is on the back of the side door to the restaurant. The state says that this is consistent with the accused opening the door after he killed the deceased. Members of the jury, this is a matter for you but before you come [to] that conclusion you would have to exclude as a reasonable hypothesis that the door was already open but the accused merely touched it or pulled it open further after he ‑ when he went through the door after finding his wife's body.
You would also have to exclude as a reasonable hypothesis that another person put the blood there when they opened the door."
The back of the side door is in continuation with the internal door frame. There is blood on the right‑hand side of the side door up to its edge (SMC 61) and blood on the right‑hand side of the door frame (SMC 60) immediately below and apparently in continuation with the blood on the door. It was accepted that the blood was that of the deceased. It was also accepted that the bloodstain was placed there by the murderer. In oral submissions counsel for the appellant contended that the bloodstain was irrelevant to the guilt of the accused and had to be separated from how the side door came to be unlocked.
The case against the appellant was circumstantial. A circumstantial case is not to be considered piecemeal: R v Hillier (2007) 81 ALJR 886 at [48]. Gummow, Hayne and Crennan JJ in Hillier cited Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 with approval. They said:
" … in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together'."
The bloodstains are part of the res gestae and on that basis alone are relevant to a fact in issue. I understand the appellant's proposition to be that, taken on its own, the bloodstain evidence is not probative of the only real issue at trial being whether the appellant was the murderer. However it is an error to isolate the bloodstain evidence from the other evidence at trial. The inference to be drawn from the bloodstains was not an indispensable intermediate step in the reasoning process towards an inference of guilt which must itself be established beyond reasonable doubt (Shepherd v The Queen (No 5) (1990) 170 CLR 573) but an individual piece of evidence which had to be considered together with all the other evidence.
The State case was that the appellant and his wife were alone together in the premises which were locked at the time of the murder, immediately after which the appellant opened the side door and was seen shortly thereafter standing in the passage. The appellant was covered in the blood of the deceased which would be expected in the ordinary course to be transferred to the back of the side door during the course of unlocking and opening it. The bloodstains are entirely consistent with the prosecution case.
There was no basis for a suggestion that anyone other than the appellant and his wife were in the premises when the appellant locked the side door after Mr Sorani left. If the appellant was not the murderer, the deceased must have unlocked and opened the side door and for the murder to take place in the location it did, the side door must have been substantially open with the internal aspect facing the eastern wall. Consideration would need to be given in those circumstances as to how the bloodstain got on the back of the side door and on the door frame. The bloodstains may also be consistent with the accused's evidence although not as obviously. It would require the murderer to fully open the side door to enable him to get to the location where the deceased was found and then partially close the side door and in the process transfer the deceased's blood to the back of the door. But that does not provide an obvious explanation for the blood on the door frame associated with the blood on the back of the door. I am not persuaded that the probabilities relating to the bloodstains are equally consistent with the alternative scenarios.
In any event, any probative force associated with the bloodstains was entirely negatived by the direction of the trial Judge which was in substance that any inference to be drawn from the bloodstains in isolation had to be proven beyond reasonable doubt and that it could not be so proven unless the jury was satisfied beyond reasonable doubt that another person had not put the blood there. This may explain why experienced defence counsel did not object to the direction. I would dismiss ground 3.
Ground 4
I agree with Roberts-Smith JA that this ground should be dismissed for the reasons he gives. However, I wish to make some additional comments on the scope of the rule in Jones v Dunkel. Under the rule in Jones v Dunkel the unexplained failure to call a witness or adduce evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case.
An issue raised in this appeal is whether the principle in Jones v Dunkel extends to a situation where evidence on a subject is not adduced from a witness who has been called to give evidence. That question was answered in the affirmative by the Victorian Court of Appeal in R v GEC (2001) 3 VR 334. In that case the accused was convicted of sexual offences against the daughter of his then de facto wife. The incidents all took place many years before trial. In her evidence about one of the incidents the complainant said her mother entered the room where the sexual assault took place and asked the accused what was happening. The complainant's mother made no mention of this in her evidence‑in‑chief nor was she cross‑examined about it. The accused gave evidence denying the incidents. The Victorian Court of Appeal held that the trial Judge should have instructed the jury to the effect that they were entitled to draw the inference that any evidence the witness might have been able to give would not have advanced the prosecution case.
However, GEC was decided before Dyers v The Queen (2002) 210 CLR 285. In Dyers the trial Judge had given a direction that the jury could draw an inference that the evidence of persons the accused claimed had been with him elsewhere at the time of the alleged offence but who had not been called, would not have assisted him. The High Court held that the trial Judge erred in giving a Jones v Dunkel direction and that ordinarily such a direction is inappropriate in a criminal trial. The principal reasons expressed in the majority judgment in Dyers for that conclusion also apply when the failure is that of the prosecution: Fonseka v The Queen (2003) 140 A Crim R 315; Winning v The Queen
[2003] WASCA 245. Further, the reasoning in Dyers would apply with appropriate modification even if the rule in Jones v Dunkel extends to a failure to adduce relevant evidence from a witness who has been called.
The decision in Hillier is of no assistance to the appellant. In that case Callinan J was considering whether there had been a failure to comply with the rule in Browne v Dunn which requires that each party to proceedings give notice of the nature of the case upon which it is proposed to rely. In this case it was put to the appellant in cross‑examination that after he killed his wife with a knife he put it in his pocket, went outside and disposed of it, a matter taken up in re‑examination of the appellant.
BUSS JA: I agree with Roberts‑Smith JA.
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