Mahmood v The State of Western Australia [No 2]
[2008] WASCA 259
•16 DECEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAHMOOD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 259
CORAM: McLURE JA
BUSS JA
MILLER JA
HEARD: 25 JUNE 2008
DELIVERED : 16 DECEMBER 2008
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:
Criminal law - Appeal against conviction - Wilful murder - Limited portion of video recorded 'walk through' of crime scene admitted into evidence - Prosecution invited jury to draw negative inference against appellant - Defence refused leave to reopen to tender entire video - Failure by trial judge to direct the jury to ignore the prosecution’s invitation to draw negative inference amounted to a miscarriage of justice - High Court remitted appeal for determination of whether proviso should be applied
Criminal law - Appeals - Application of proviso - Whether on all the evidence before the jury no substantial miscarriage of justice occurred - Criminal Appeals Act 2004 (WA), s 30(4) - Duty of appellate court to review all the evidence - Evidence at trial mostly circumstantial - Whether there was a denial of procedural fairness which precluded the application of the proviso - Whether natural limitations of an appellate court precluded the court from being satisfied beyond reasonable doubt of the appellant’s guilt - Whether court satisfied from record of trial that the prosecution had proved the appellant’s guilt beyond reasonable doubt
Criminal Law - Practice and Procedure - Application to adduce additional evidence - Court may admit additional evidence if the evidence is relevant to any issue before the court, including whether or not the court is satisfied that no substantial miscarriage of justice has occurred - Distinction between fresh and new evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4), s 39, s 40
Result:
Application for leave to adduce additional evidence and for ancillary orders dismissed
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr C H Withers
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: Kott Gunning
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Beamish v The Queen [2005] WASCA 62
Beins v The State of Western Australia (No 2) [2006] WASCA 272
Cesan v The Queen [2008] HCA 52; (2008) 250 ALR 192
CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838
Glennon v The Queen (1994) 179 CLR 1
Lawless v The Queen (1979) 142 CLR 659
Mahmood v The State of Western Australia [2007] WASCA 101
Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397
Mickelberg v The Queen (1989) 167 CLR 259
Plomp v The Queen (1963) 110 CLR 234
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Nicoletti [2006] VSCA 175; (2006) 164 A Crim R 81
Ratten v The Queen (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
Shepherd v The Queen (1990) 170 CLR 573
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
INDEX TO REASONS OF BUSS JA
The prosecutor's closing address to the jury
Application to reopen the defence case
The appellant's appeal to this court
The appeal to the High Court
The record of the trial
The floor plan of the Kebabistan Restaurant
The location of Mrs Dabag's body in relation to the rear door
Some features of the rear door
The evidence of Gerard Andrew Cadden
The evidence of Mark Edward Reynolds
The evidence of Megan Joy Sharman
The evidence of Stephen Henry O'Hazy
The evidence of Catherine June McDonald
The evidence of Guat Neo Chan
The evidence of Richardson Winfred Beno George
Telephone calls by the appellant to the ambulance service and the police
The evidence of Justine Maureen Morris
The evidence of Andrew Stewart Medling
The evidence of Phillip Francis Astone
The evidence of Marco Sorani
The evidence of Sandra Margaret Childe
The evidence of Aleksander Bagdonavicius
The evidence of Paul William Tubman
The evidence of Jerome Charles Sin
The evidence of Selcuk Demirci
The evidence of Hemin Othman
The evidence of Bernard Frank Lynch
The evidence of Gary Robert Hyde
The evidence of Joseph Dominic Marrapodi
The evidence of the appellant
The video‑recorded interview between the police and the appellant on 4 July 2004
The part of the video record of the 'walk‑through' that was tendered at trial
The evidence of Gloria Doreen McMahon
The evidence of John Patrick McMahon
The evidence of Adam Lovatt
The status of the video record of the 'walk‑through'
The issues on remitter
Section 30(3) and (4) of the Criminal Appeals Act
The appellant's submissions: in the present case, the proviso is incapable of application because there was a significant denial of procedural fairness
The appellant's submissions: in the present case, the natural limitations of an appellate court preclude application of the proviso
The appellant's submissions: in any event, in the present case, the respondent has not proven the appellant's guilt beyond reasonable doubt
The merits of the appeal: is the proviso incapable of application because there was a significant denial of procedural fairness at trial?
The merits of the appeal: do the natural limitations of an appellate court preclude application of the proviso?
The merits of the appeal: has the respondent proven the appellant's guilt beyond reasonable doubt?
The appellant's application for leave to adduce additional evidence in the appeal
The merits of the appellant's application for leave to adduce additional evidence in the appeal
Conclusion
McLURE JA: I have had the advantage of reading the reasons for judgment of Buss JA. I agree that the application for leave to adduce additional evidence and the appeal should be dismissed for the reasons he gives. I wish to make additional observations on two matters.
On my reading of the majority judgment of the High Court in Mahmood v State of Western Australia (2008) 232 CLR 397 this court is not required to ignore the part of the video record of the 'walk through' tendered at trial (the video evidence) in considering the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). The error at trial was not the admission of the video evidence but rather the failure of the trial judge to direct the jury that they were not entitled to take that evidence into account as relevant to, and probative of, the question of the appellant's lack of emotion and inferentially, his guilt. The admissibility of evidence for a limited purpose is well known in the criminal law. In determining whether the proviso applies, I have taken into account the video evidence save and except for the appellant's demeanour in the video which is not probative of his emotional state or his guilt.
The appellant contended that by virtue of the error of law made by the trial judge it was not open to this court to be persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the offence on which the jury returned its verdict of guilty. The underlying premise for that submission seems to be that this court is unable to exclude the possibility that the error did not impact on the jury's evaluation of the appellant's evidence with the consequence that it cannot be persuaded to the requisite standard of the guilt of the appellant based on the record alone. If that was the test, the proviso could never apply where the credibility of the accused was in issue. However, that is not the test for the application of the proviso: Weiss v The Queen (2005) 224 CLR 300. In Weiss the prosecution adduced irrelevant prejudicial character evidence at the trial of the accused for murder. The irrelevant evidence was that the accused had a sexual relationship with an under-aged female which involved the commission of a serious criminal offence. The High Court noted that the possibility the jury took account of the wrongly admitted evidence in deciding what evidence to accept or reject could not be excluded [50]. That is not determinative. When considering the proviso the task is not to be undertaken by attempting to predict what a jury, whether the jury at trial or some hypothetical jury, would or might do [35]. The High Court said:
First, the appellate court's task [in applying the proviso] must be undertaken on the whole of the record of the trial including the fact
that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial [43].
I applied this approach in reaching the conclusion that no substantial miscarriage of justice has occurred in this case. I do not understand the recent decision of the High Court in Cesan v The Queen (2008) 250 ALR 192 to involve any departure from the principles in Weiss. In Cesan there was a miscarriage of justice because the trial judge did not exercise that degree of supervision of the proceedings which would ensure, so far as reasonably practicable, that the jury paid attention to all of the evidence as it was given. As a consequence of the trial judge falling asleep during the trial, the jury did not pay attention to all of the evidence, in particular the evidence given by the accuseds. In those somewhat exceptional circumstances the High Court said it was not possible to place any weight upon the fact that the jury returned its verdicts of guilty [129]. In that context, the Court of Criminal Appeal could not be persuaded of the guilt of the accused based on the record alone [130]. There is no justification in this case for giving no weight to the verdict of the jury.
BUSS JA: On 24 February 2006, after a trial in the Supreme Court before Jenkins J and a jury, the appellant was convicted of the wilful murder of his wife, Chnar Dabag. The learned trial judge sentenced him to life imprisonment and ordered that he serve 18 years before becoming eligible for parole.
Mrs Dabag was murdered on Sunday, 4 July 2004, at premises in Mount Lawley where the appellant and Mrs Dabag carried on a restaurant business called the Kebabistan Restaurant. Her throat was cut. The murder weapon was never found.
The appellant gave sworn evidence at the trial that he discovered Mrs Dabag's body in a passageway at the rear of the restaurant premises. After finding her body, he telephoned the police, the ambulance service and his son. He was very distressed.
On the evening of the murder, the appellant voluntarily participated in a video‑recorded interview with the police. A week later he voluntarily participated in a video‑recorded 'walk‑through' of the restaurant premises.
During the 'walk‑through' the appellant re‑enacted, in the presence of police officers, the events which, according to the appellant, occurred at the restaurant premises before and after Mrs Dabag's murder on the morning in question.
The prosecutor's closing address to the jury
The duration of the video record of the 'walk‑through' exceeded 2 hours. During the prosecution case, the appellant's trial counsel tendered part of the video record. The duration of the part tendered was about 6 minutes. This part concerned the appellant's description of the manner in which he held Mrs Dabag's body after discovering it in the passageway. The purpose of the tender was to explain the position of blood on his clothes and hands.
When the appellant's trial counsel tendered that part of the video record of the 'walk through', he offered to tender the whole video:
I'm quite happy to tender the whole video but it is two and a half hours long. It can be done this way: if the jury in their deliberations require to see those portions again a note could be forwarded to the court. We could reconvene in the court and those portions be played in the presence of members of the jury. As I said, if my friend wishes me to I'm happy to tender the whole of the video (AB 245).
The prosecutor then informed the learned trial judge that 'there may be issues as to that' (AB 245). The prosecutor added that he had no objection to the tender of the part of the video which the appellant's counsel had identified. Her Honour accepted the tender of that part.
The prosecutor, in his closing address to the jury, said, relevantly:
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 (AB 307).
The appellant's trial counsel made his closing address to the jury after the completion of the prosecutor's address. He referred to the prosecutor's comment in relation to the part of the video record of the 'walk‑through' that had been tendered, and commented:
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 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? (AB 317 ‑ 318)
Application to reopen the defence case
After the appellant's trial counsel completed his address and before the learned trial judge commenced her summing up, the appellant's counsel applied to reopen the defence case for the purpose of tendering other parts of the video record of the 'walk‑through' which, according to counsel, depicted the appellant suffering emotional distress (AB 335). The application was made as a result of the prosecutor's assertion in closing that the part of the video record which had been tendered showed the appellant to be 'cold‑blooded and clinical' and that the killing was 'cold‑blooded and clinical'. The appellant's counsel sought to reopen for the purpose of correcting the prosecutor's misleading assertion. The prosecutor opposed the application and her Honour dismissed it. She decided that the matter could properly be dealt with 'by me indicating to the jury that it would be more relevant for them to consider the [appellant's] demeanour on the day in question …' (AB 337).
The learned trial judge, in her summing up, said, relevantly:
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 (AB 363 ‑ 364).
The appellant's appeal to this court
On 9 May 2006, the appellant filed an appeal notice to this court. He was granted leave to appeal on several grounds. Those grounds were amended. When the appeal was heard there were five grounds. One of them was abandoned at the hearing.
Grounds 1 and 2 read:
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.
At the hearing of the appeal, the respondent's counsel (who was also the prosecutor at the trial) conceded that if his assertion to the jury that the appellant's demeanour on the tendered part of the video record of the 'walk‑through' was 'cold‑blooded and clinical' conveyed the impression that the part was representative of the video record as a whole, then the assertion was misleading. He submitted, however, that in any event his assertion was corrected by the learned trial judge's direction.
This court (Roberts‑Smith, McLure and Buss JJA) unanimously dismissed the appeal. See Mahmood v The State of Western Australia [2007] WASCA 101.
Roberts‑Smith JA (with whom I agreed) held that the learned trial judge's direction rectified the prosecutor's assertion and that her Honour's dismissal of the appellant's application to reopen did not occasion a miscarriage of justice.
McLure JA held:
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 [155] ‑ [156].
The appeal to the High Court
The High Court granted the appellant special leave to appeal.
The appeal to the High Court concerned, first, the learned trial judge's treatment of the video record of the 'walk‑through' in the context of the prosecutor's assertion in closing and, secondly, the significance of stains of Mrs Dabag's blood in a pocket of the appellant's trousers. The ground of appeal based on the bloodstains failed, but the ground based on her Honour's treatment of the video record succeeded.
Gleeson CJ, Gummow, Kirby and Kiefel JJ held that although the learned trial judge suggested that the record of interview on the evening of the murder would be more relevant to the jury than the video record of the 'walk‑through' in assessing the appellant's demeanour, and the suggestion was made in strong terms, it nevertheless conveyed only an opinion about how the jury should view the matter. See Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397 [17]. The learned trial judge should have provided a direction, in the nature of a warning, which the law required the jury to follow [17]. Their Honours added:
The evidence available to the jury as an exhibit was only part of the video recording of the appellant giving his account of the events of the day of the murder. It was necessary for the jury to be directed, in unequivocal terms, that they knew so little of the context in which the segment of the video recording appeared that they could not safely draw the inference that the prosecutor had invited them to draw, that is to say, that they should ignore the prosecutor's invitation and remarks. However, the statements made by the trial judge in summing up would have conveyed to the jury, erroneously, that they were entitled to take the evidence into account as relevant to, and probative of, the question of the appellant's lack of emotion and inferentially, his guilt. The trial judge's remarks were directed to the reasons why they might give the evidence lesser weight than other, more contemporaneous, evidence. They failed to deny its evidentiary effect. The misdirection therefore amounts to an error of law (Gilbert v The Queen[2000] HCA 15; (2000) 201 CLR 414 at 416-417 [2] per Gleeson CJ and Gummow J, 423 [23] per McHugh J, 429 [45] per Hayne J; Darkan v The Queen (2006) 227 CLR 373 at 413 [136] per Kirby J) [18].
Hayne J agreed with the reasons of Gleeson CJ, Gummow, Kirby and Kiefel JJ. His Honour added, relevantly:
The difficulties which emerged so late in the appellant's trial stemmed from the failure of the prosecution to tender admissible evidence available to the prosecution which was evidence it asserted in its final address to the jury was relevant to, and demonstrative of, the appellant's guilt. Had the prosecution tendered in its case the complete record of the re-enactment in which the appellant had participated, trial counsel for the prosecution could not sensibly have made the submission he did and there would have been no occasion for the direction that should have been, but was not, given to the jury to ignore the argument advanced by the prosecution [42].
As to the ground of appeal based on the bloodstains, the prosecutor, in his closing address, suggested to the jury that the bloodstains in the pocket of the appellant's trousers were caused by his putting the murder weapon in the pocket before leaving the restaurant premises to dispose of it. The High Court held that the jury were not in a position to conclude that the bloodstains were made by a knife or other murder weapon placed by the appellant in the pocket. There were other possibilities, consistent with innocence [28]. The learned trial judge adequately directed the jury on this point.
The High Court allowed the appeal, set aside the order of this court (made on 14 May 2007) dismissing the appellant's appeal, and remitted the matter to this court, pursuant to s 44(1) of the Judiciary Act 1903 (Cth), to complete the hearing of the appeal by considering whether there has been no substantial miscarriage of justice within s 30(4) of the Criminal Appeals Act 2004 (WA).
The record of the trial
I turn to the record of the trial.
The prosecution called twelve witnesses. They were Gerard Andrew Cadden, Mark Edward Reynolds, Stephen Henry O'Hazy, Catherine June McDonald, Richardson Winfred Beno George, Phillip Francis Astone, Marco Sorani, Sandra Margaret Childe, Aleksander Bagdonavicius, Paul William Tubman, Gary Robert Hyde and Joseph Domenic Marapodi. Also, by consent, the prosecutor read into evidence the witness statements of various people.
The appellant's counsel called three witnesses, namely, the appellant, Gloria Doreen McMahon and Adam Lovatt.
Numerous documents, including expert reports and a floor plan of the Kebabistan Restaurant, were tendered.
I will now review the relevant evidence.
The floor plan of the Kebabistan Restaurant
The floor plan of the Kebabistan Restaurant was produced and identified by Gary Robert Hyde, a senior constable with the Western Australian Police and a forensic investigation officer. The floor plan, which was drawn to scale, became exhibit 21.
The layout of the restaurant premises, as depicted on the floor plan, is, relevantly, as follows.
At the front of the restaurant (that is, the part which abuts Beaufort Street) there is a 'main counter' area and an 'eatery' area. Those areas are, in total, about 9.7 metres by 8 metres. There is a door from the main counter/eatery to the passageway. The distance from that door to the rear door is about 13.75 metres. The width of the passageway is about 1.25 metres. The rear door has a width of about 0.9 metre, and opens onto a car bay where the appellant parked his dark blue station wagon.
There is an opening (without a door) between the main counter area and the kitchen. The area of the kitchen is about 3.4 metres by 4.25 metres. The kitchen abuts the passageway. There is a wall (without any opening) between the kitchen and the passageway.
There is an opening (without a door) between the kitchen and the bakery/oven room. The area of the bakery/oven room is about 3.4 metres by 8 metres. The bakery/oven room abuts the passageway. There is a door from the bakery/oven room to the passageway. That door is about 7 metres from the rear door. There is another door from the bakery/oven room which leads to the store rooms. There is, in turn, a door leading from the larger storeroom to the passageway. The storerooms abut the bakery/oven room. The second door in the bakery/oven room is about 1.5 metres from the doorway between the larger storeroom and the passageway. The doorway from the larger storeroom is opposite the rear door.
There are two toilets which are adjacent to the larger storeroom. Each of them has a door which leads into the passageway. The toilets are about 6 ‑ 7 metres from the rear door.
The location of Mrs Dabag's body in relation to the rear door
The floor plan of the Kebabistan Restaurant depicts the location of Mrs Dabag's body when it was seen by the first police officers to arrive after her murder. She was lying face upwards in approximately the middle of the passageway. Her head was towards Beaufort Street and her feet were pointing in the opposite direction. The distance between her feet and the commencement of the opening to the rear door was about 1 metre.
Some features of the rear door
The rear door comprised a steel door frame and a galvanised piece of sheet metal which had been welded to or otherwise installed in the frame. The exterior of the door did not have a lock or handle, or any other attachment or ornamentation. The door could not be closed or locked (or unlocked) from the outside. So, if the door was locked from the inside, it could not be opened from the outside. The interior of the door had two bolts for the purpose of locking the door. Each bolt could be slid into a socket attached to the door frame. One bolt operated in a horizontal plane and was about 0.8 metre above the foot of the door on the right‑hand side. The other bolt operated in a vertical plane and was at the top of the door on the right‑hand side. The door opened inwards, but not outwards. It faced Clarence Street and opened towards Beaufort Street. The hinges on the door permitted it to be opened 180 degrees (or almost 180 degrees) so that the inner side of the door, when fully opened, was flush (or almost flush) against the abutting wall. See the photograph received as exhibit 10. As I have mentioned, the door was about 0.9 metre, and the passageway about 1.25 metres, in width.
The evidence of Gerard Andrew Cadden
Gerard Andrew Cadden is a medical practitioner and forensic pathologist. Dr Cadden performed a post‑mortem examination on Mrs Dabag's body. Initially, he examined her body on the afternoon of Sunday, 4 July 2004, in the passageway at the rear of the restaurant premises. He found her lying face upwards in the passageway with her head pointing toward the front of the premises (that is, Beaufort Street). She had a neck injury. The injury comprised a single wound to the front of the neck. Her throat had been cut (AB 31 ‑ 32).
Dr Cadden described Mrs Dabag's neck injury as 'unusual' (AB 34). He gave this explanation:
What makes it unusual is the findings on internal examination. The wound as you see on the diagrams you're of course only looking onto the skin surface. The actual wound has two penetrating components, one at either side going quite deeply into the tissue … The left‑hand side is a component that goes downwards towards the collarbone to involve a major vessel and on the right‑hand there is an area where the vessels are damaged and the component on that side goes back towards the bony spine within the neck and it involves the outer surface of the bony spine. So one has an atypical injury in that it has these, either side, penetrating deeper aspects (AB 34).
Dr Cadden was unable to express an opinion as to whether the assailant was in front of or behind Mrs Dabag when the injury was inflicted (AB 34). Also, he was unable to determine from his examination of the wound whether the person who inflicted it was right‑handed or left‑handed (AB 44).
Dr Cadden anticipated that Mrs Dabag's death would have occurred rapidly. She would have died 'within minutes' because of the severity of her blood loss (AB 37).
The length of the wound was about 9 centimetres, the depth of the penetration was 5.7 centimetres on the left (downwards behind the left collar bone) and 5.5 centimetres on the right (downwards to involve the spine) (AB 45 ‑ 46). There were two different potential discharge pressures from the wound. The greatest vessel damage was to a vein, which discharges blood less vigorously than an artery. Also, about one quarter of the circumference of an artery was involved and that would have emitted blood by spurting or squirting (AB 46).
The evidence of Mark Edward Reynolds
At the material time, Mark Edward Reynolds was a sergeant with the Western Australian Police and a senior forensic investigations officer. Sergeant Reynolds had qualifications and experience in bloodstain pattern analysis. He prepared a report dated 24 June 2005, with Senior Sergeant Sanderson, in relation to bloodstains found at the restaurant premises and on the clothing worn by each of Mrs Dabag and the appellant on the morning in question.
Sergeant Reynolds said in his report that the amount of blood shed as a result of the injury to Mrs Dabag's neck, and the location of the bloodstaining on certain items of her clothing, indicated it was likely her upper body was in a horizontal or near horizontal position when, or soon after, the injury was inflicted (AB 55).
He noted that numerous transferred bloodstains were found near the location of Mrs Dabag's body and also in other areas throughout the restaurant. The majority of these transferred bloodstains appeared to be outsole impressions of footwear (AB 66). Numerous projected bloodstains and bloodstain patterns were found on several surfaces adjacent to her body; namely, the concrete floor, the passageway (which he sometimes referred to as the 'metal screened walkway') and several orange plastic crates located on an adjacent concrete step area (AB 53). A large transferred bloodstain was found on this area. The size, shape and location of this bloodstain suggested contact by a bloodstained hand with the concrete step area. However, no finger or palm ridge detail was observed within the bloodstain and it was conceivable that some other object than a hand was responsible for the stain (AB 66).
Sergeant Reynolds examined a series of photographs of the appellant taken shortly after Mrs Dabag was killed. The photographs show the appellant wearing the clothing he wore at the time of his wife's death. Sergeant Reynolds said in his report that all aspects of the appellant's right hand displayed apparent bloodstaining. The staining was present between his fingers and within creases of the skin. The extent of the bloodstaining to the appellant's right hand suggested contact between his 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's surface. Further, the presence of bloodstaining on multiple surfaces of his right hand strongly suggested that the stains were not a result of incidental transfer in consequence of contact with another bloodstained surface or object, even on multiple occasions (AB 68 ‑ 69).
Sergeant Reynolds received and examined certain items of clothing that the appellant had been wearing at the time of Mrs Dabag's death. They included a pair of blue trousers (marked for identification as ATC 2). The trousers displayed numerous bloodstains on the front and rear aspects. The stains comprised a number of bloodstain pattern types, including saturated, apparent projected and transferred bloodstains. The majority of bloodstaining occurred to the front of the trousers and, in particular, the right leg. This staining comprised mainly a large saturated bloodstain.
According to Sergeant Reynolds, the saturated bloodstain on the front aspect of the right trouser leg was consistent with the deposition of a relatively large quantity of liquid blood onto the trouser leg. It was not possible to define the exact mechanism or mechanisms of the blood deposition responsible for this stain. However, a number of features of the pattern suggested, at least in part, that the contributing blood source was a quantity of blood that had fallen onto the trouser leg; for example, passive flow or spill, or blood that had been projected onto the trouser leg by arterial flow or spurt. He was of the opinion that the relative position and shape of the overall bloodstain, together with the apparent bloodflow directional indicators, suggested that the trouser leg was bent at the knee when the blood was deposited. Further, he was of the opinion that the leg was bent in a 'shoe to floor' position as distinct from a 'knee to floor' position (AB 58).
Sergeant Reynolds noted that the majority of the bloodstaining on the blue shirt (marked for identification as ATC 3) worn by the appellant at the time of his wife's death was to the frontal and right sleeve areas. The staining appeared to be caused by contact transfer (AB 72). No bloodstains or bloodstain patterns indicative of projected blood were found.
Sergeant Reynolds examined the shoes (marked for identification as ATC 14) worn by the appellant at the time of his wife's death. They displayed apparent bloodstaining. A combination of blood and sand adhered to the outsole, instep and arch areas of both shoes. A number of transferred bloodstains were also observed on the shoe uppers, particularly in the toe and shoelace regions. Sergeant Reynolds expressed the opinion that, apart from the bloodstaining to the instep and arch areas of the outsoles, the number, size, shape and relative distribution of the bloodstains on the shoes were not consistent with what might be expected by simply walking or stepping in blood (AB 75, 80).
The report expressed the following conclusions:
1.The bloodstains and bloodstain patterns examined, strongly suggest that neck injury resulting in the death of Chnar DABAG was inflicted at, or very close to, where her body was located.
2.The victim Chnar DABAG has moved, or been moved, post injury infliction.
3.The exact bloodshed mechanism responsible for the saturated blood staining observed on the right leg of ATC 2 cannot be determined; however features of the blood stain suggest, at least in part, large volume passive or arterial flow.
4.At the time of the blood deposition responsible for the saturated blood staining observed on the right frontal aspect of the trouser leg … it is likely that the leg was bent at the knee, in the region of 90°, or near 90°, in a shoe to ground, as opposed to the knee to the ground, position.
5.It is highly likely that the upper body of the victim, Chnar DABAG, was in the horizontal position or near horizontal position, at or soon after, injury infliction.
6.The extent of the blood staining observed on the right hand of Dlshad Hamad Mahmood is 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 (ie wiped) over all surface aspects of the hand.
7.The presence of apparent coagulated blood on Exhibit ATC 2 suggests an interval of time between exposure of the blood source to air and the subsequent contact transfer of that blood to ATC 2. It is not possibly to quantify the time interval.
8.The apparent projected bloodstains observed on the pair of brown shoes (Exhibit ATC 14), are not consistent with walking or stepping in blood.
Sergeant Reynolds explained some of these conclusions in evidence‑in‑chief:
(a)The first conclusion was based upon the nature of the injury Mrs Dabag suffered, the volume of blood in close proximity to her body and the absence of bloodstaining in other parts of the restaurant premises (AB 61).
(b)As to the second conclusion, Mrs Dabag had been moved only a short distance after the neck injury was inflicted. Sergeant Reynolds estimated that her head had been moved about 10 to 15 centimetres. This conclusion was based on the absence of bloodstains in an area to the side of her head, despite it being apparent that projected bloodstains had emanated from that part of her body (AB 62).
Sergeant Reynolds said, in the course of cross‑examination:
(a)The area of bloodstaining on Mrs Dabag's face was explicable on the basis either that her face was covered with blood when someone touched it, or a person's hand was covered with blood when he or she touched Mrs Dabag's face (AB 68).
(b)The amount of blood on the appellant's right hand was consistent with his actually touching either Mrs Dabag or her clothing, provided there was other movement or contact between his hand and the blood source, which caused blood to cover all of the surfaces of the hand (AB 68).
(c)The bloodstaining which Sergeant Reynolds observed on the appellant's right hand was on all the surfaces of the hand including the creases and the joins between the fingers. The nature and extent of this bloodstaining could not be accounted for merely by repeated contact between his hand and a single bloodstained area of Mrs Dabag or her clothing (AB 68).
(d)Contact between the appellant's right hand and clothing of Mrs Dabag that was saturated with blood would not explain the blood between all of his fingers and on the back of his hand (AB 68).
Sergeant Reynolds clarified in re‑examination that, technically, an impact to a source of liquid blood would include walking or stepping in the blood, but that did not account for the blood on the appellant's shoes. Sergeant Reynolds was referring to considerably more force than walking or stepping into blood with a normal walking or stepping motion. He added:
If a person, for example, walked up and stomped in the blood then you may get staining such as this, but it is a forceful application as opposed to a relatively passive event of just stepping into blood as you would normally walk (AB 75).
The evidence of Megan Joy Sharman
By consent, the prosecutor read into evidence a witness statement of Megan Joy Sharman.
At the material time, Ms Sharman was the manager of the National Australia Bank branch located at 678 Beaufort Street, Mount Lawley. She said in her statement that the records of the bank revealed that on the morning of Sunday, 4 July 2004, an attempt was made to withdraw $500 from the automatic teller machine outside the Mount Lawley branch. The request to withdraw the $500 was refused after six attempts (AB 77).
The evidence of Stephen Henry O'Hazy
In July 2004, Stephen Henry O'Hazy was residing in Mount Lawley. At that time he had resided in Mount Lawley for seven years. Every morning, seven days a week, he would leave his home at about 8 am and walk to a coffee shop at the corner of Mary Street and Beaufort Street. The route he travelled involved walking along Clarence Street towards Beaufort Street. Normally, just before Beaufort Street, he would turn left from Clarence Street into a laneway that runs parallel to Beaufort Street, and continue down the laneway to Mary Street (AB 78 ‑ 79).
On Sunday, 4 July 2004, Mr O'Hazy commenced this journey at 'just before' 8 am. As he was approaching the laneway, at about 8 am, he noticed a man walking towards him on the same side of Clarence Street. He described the man as being aged in his mid‑thirties, with short hair, and wearing a vest and a long‑sleeved T‑shirt. Mr O'Hazy said the man came from the direction of Beaufort Street, but he had no idea from where he was walking. As the man came towards Mr O'Hazy, he (the man) crossed the verge, got into a motor vehicle and drove away in the direction of Beaufort Street. Mr O'Hazy had been walking on the left‑hand side of Clarence Street, going towards Beaufort Street. The man's motor vehicle was about 100 metres from the laneway. His vehicle was parked on Clarence Street and facing Beaufort Street. The rear of the Kebabistan Restaurant abuts the laneway where the laneway adjoins Clarence Street (AB 80 ‑ 81).
Mr O'Hazy walked along the laneway to the coffee shop, as usual, and had a coffee there. He left the shop at about 8.50 am and returned towards his home by the reverse route. As he was walking along the laneway and about to turn right into Clarence Street, he heard someone making a sound which indicated distress. He stopped near a blue or black station wagon which was parked at the rear of the Kebabistan Restaurant. The door at the rear of the restaurant was 'fully open' and he was able to see the passageway which ran parallel to Clarence Street. Mr O'Hazy also saw a man standing against the wall of the passageway. He had his back to Mr O'Hazy and the man's hands were above his head. The man was hitting the wall of the passageway with his hands. Mr O'Hazy watched the man for about 15 seconds. He then walked home (AB 82 ‑ 83).
Shortly after Mr O'Hazy arrived home, he travelled again along Clarence Street. On this occasion, he was a passenger in a motor vehicle driven by his girlfriend. This was about 15 minutes after Mr O'Hazy had noticed the man at the Kebabistan Restaurant. He saw the same man sitting on the verge near a tree. His legs were extended. He had blood on the front of his trousers. There was an ambulance vehicle and two tow trucks and other activity in the vicinity. He recognised the man as the owner of the Kebabistan Restaurant (AB 83).
The appellant's trial counsel put to Mr O'Hazy a comment he had made in a statement given to the police on 5 July 2004. In the statement, Mr O'Hazy said, in relation to the man at the rear of the Kebabistan Restaurant:
I could hear him crying and moaning in a language I could not understand (AB 84).
The evidence of Catherine June McDonald
In July 2004, Catherine June McDonald resided in Clarence Street, Mount Lawley. She had lived in the area for 17 years.
It was Ms McDonald's practice, on Sunday mornings, to walk from her home, along Clarence Street, to Beaufort Street and then purchase a newspaper and flowers at a shop in Beaufort Street. Ms McDonald said, in her evidence‑in‑chief, that on Sunday, 4 July 2004, she made that journey between about 8.05 am and 8.10 am. She walked along Clarence Street on the right‑hand side, going towards Beaufort Street (AB 85).
When she reached the laneway behind the Kebabistan Restaurant she crossed from the right‑hand to the left‑hand side of Clarence Street. After she had crossed to the left‑hand side, she heard sounds which appeared to be emanating from the rear of the Kebabistan Restaurant near a doorway. Her evidence as to what she heard was as follows:
What was the sound of, just what you heard?‑‑‑Voices raised in anger would be the best way - a male voice and a quieter, female voice.
Were you able to make out what was being said?‑‑‑No.
…
Did you hear words being spoken?‑‑‑Yes, but it was in a language I didn't understand.
So some words not in Australian - not in the English language. Is that correct?‑‑‑Not English.
And you said they were raised voices?‑‑‑Yes.
…
A louder voice, and a woman - - -?‑‑‑ ‑ ‑ ‑ the louder voice was male.
And a woman's voice which was quieter?‑‑‑Much quieter.
Did you stop on the pavement or did you continue?‑‑‑I continued on (AB 87).
Ms McDonald purchased a newspaper and flowers at the shop in Beaufort Street. She made another purchase at a different shop, and then returned home by the reverse route. After turning right from Beaufort Street into Clarence Street, she heard a noise when she was level with the side of the Kebabistan Restaurant. She gave this evidence:
And did you notice any noise at all on your return journey?‑‑‑There was still a loud male voice.
…
And where was that coming from?‑‑‑The same area.
Is that the door you described to us?‑‑‑Yes.
On the side of the premises?‑‑‑Yes.
Did you stop or continue?‑‑‑No.
On that return journey did you hear any other voice or was it just the male voice?‑‑(indistinct)
In relation to the volume of the male voice was it the same volume as you had heard before or ‑ ‑ ‑?‑‑‑I think it was louder; it sounded louder (AB 89).
Ms McDonald was cross‑examined on a statement she gave to the police on 5 July 2004. In the statement she said:
At about 8.15 to 8.30 on Sunday, 4 July 2004, I walked from my house towards Beaufort Street. I know it was about 8.15 because the news on the ABC Radio was just finishing (AB 90).
Ms McDonald asserted that she left home 'certainly before 8.30. It would have been closer to 8.15 am' (AB 90).
The following cross‑examination occurred in relation to the noise she heard on her walk from home to Beaufort Street:
And when you talk about these loud voices or the male voice being loud, it was certainly louder than the second voice that you heard which you think was a female voice. Correct?‑‑‑That's correct.
But you wouldn't be able to help us because you haven't, to your recollection, heard this voice previously on other occasions?‑‑‑I may have but it's certainly not one I would recognise.
So you don't know if the voice was speaking in fact or in the normal tones that that particular person speaks or whether it was a loud voice for that particular person?‑‑‑I would say it was louder than what one would normally use in a one‑one conversation.
Were you able to hear any background noise?‑‑‑There was a background noise but I couldn’t identify it.
So you wouldn't know - and please correct me if I have got it wrong - if that was, for example, a TV on perhaps or a radio on or perhaps another group of people somewhere in the vicinity talking?‑‑‑It would sound - it would have sounded more of a mechanical noise rather than something generated by an electronic medium.
And roughly, doing the best you can, how long did you hear the noise of the voices for?‑‑‑Only the length of time that I was walking along that side of the footpath, a few moments.
Then you literally continued on. You walked down to the newsagent‑‑‑Yes (AB 91).
As regards Ms McDonald's return journey, she was cross‑examined as follows:
It's also the position, is it not, that you then on your evidence heard the voices again?‑‑A voice.
When you say 'a voice' did you say to the police on 5 July 2004, 'There was still loud voices speaking in a foreign language coming from the restaurant around the same door area? First of all, I will break it up. Did you say that to the police on 5 July?‑‑‑I said that, and I have since amended that.
I will deal with that in a minute, but you agree with me that on 5 July 04 you signed a statement to the police saying, 'There was still loud voices speaking in a foreign language coming from the restaurant around the same door area'?‑‑‑Yes.
Okay. And you agree with me that you made another statement to the police dated 16 July 2004. So there's one that you signed on 5 July?
‑‑‑Yes.
Then you made another statement which was signed by you on 16 July 04 and you said again, 'There was still loud voices speaking in a foreign language coming from the restaurant around the same rear door area'?‑‑‑Yes.
All right. Would you agree with me that you said this:
I'm unable to say how many voices were involved in the argument. It was more than one voice but I'm unable to say for sure how many different voices were involved in the argument?
‑‑‑Correct.
That again was made in 2004 when the incident was a lot fresher in your memory?‑‑Yes.
And you certainly agree do you not, that what you were saying to the police then you were talking in the plural; that is, more than one voice?‑‑‑One assumes that there would be more than one person.
When you say 'one assumes,' the police explained to you the importance of the statement you were making. Would you agree with that?‑‑‑Yes.
…
In both of those statements again you have referred to voices in the plural as opposed to voice. Do you agree with that?‑‑‑Yes.
You have referred to speaking in a foreign language?‑‑‑Yes.
All right. You have referred to being unable to say how many voices were involved:
It was more than one voice but I'm unable to say for sure how many different voices?
‑‑‑That's correct.
Is it the position that in fact in 04 you could in fact recall that there were different inflections or different tones that made you conclude that there were more than one voice that you were hearing at that stage?‑‑‑As I've said, one assumed - and I suppose I shouldn't have assumed - that it would be more than one person.
Would you agree with me that you then made a further statement dated 6 February, just a couple of days ago, and that was the first time that you then said that you recall only one voice?‑‑‑Male voice. I did not hear a female voice on the second occasion.
But you agree with me that the first time that you then said that you can recall only one male voice was in fact this year in 2006?‑‑‑Well, again it's a male's voice or voices. I cannot tell you how many people were there.
All right. Can I just get the dates right first? Do you agree with me that it wasn't until 2006; that is, this year, and this month, February, that you then started saying that you are unable to say how many voices - 'but I now recall only the one voice'?‑‑‑Well, that was an extension between whether it was a male and a female voice.
So what you're saying now - and please tell me if I have got it wrong - is that there may have been more than one voice but it was definitely male voices that you heard on the second time that you went by?‑‑‑Correct.
Do you agree with me that on the second time that you have heard the voices that again there was some form of background noise?‑‑‑Yes.
In the sense of what I put to you previously, it may have been a radio; it may have been a TV. Do you agree with that?‑‑‑Yes, of some variety.
I'm sorry, I didn't catch that last - - -?‑‑‑Yes, it was a noise but, as I have said, I don't think it was electronic.
You do or you don't think it was electronic?‑‑‑I do not think it was electronic as in television or ‑ ‑ ‑
It sounded, what, like another group of people talking somewhere?‑‑‑No. It was more of a mechanical noise.
When you say more of a mechanical noise are you able to help us with some form of description of that or not?‑‑‑Slight whirring I think would be the closest.
…
And did that noise also appear to be coming from the same general vicinity as the noise of the voices that you heard?‑‑‑Yes.
…
Are you familiar with some of the ethnic radio shows? Have you ever listened to the ethnic radio shows?‑‑‑No.
All right. Have you ever watched the ethnic TV shows or anything of that nature?‑‑‑No.
You would have in your life experiences [sic] many people that you have met from different cultures and [sic] your own over a period of time?‑‑‑Yes.
Would you agree with me that some of them, particularly from different cultures, speak in a more raised voice than perhaps I do or indeed you do?‑‑‑On occasions.
…
Would you agree with me that quite often they, for example, are more flamboyant in the movement, for example, of their hands as they are talking?‑‑‑Yes, but these voices were not consistent with a general loud conversation … (AB 92 ‑ 96)
Ms McDonald clarified in re‑examination that her change in recollection related to the return journey. Also, she said that on her return journey, she again heard the male voice she had heard on her initial journey, and his voice was louder on the return journey than on the initial journey. She added that on the initial journey, the voices 'sounded fairly aggressive'. It did not sound to her to be 'like a general conversation'. It sounded 'much more aggressive than a general conversation' (AB 97).
The evidence of Guat Neo Chan
By consent, the prosecutor read into evidence a witness statement of Guat Neo Chan. She worked at a delicatessen at 555 Beaufort Street, Mount Lawley, called 'Yin Deli'. Ms Chan was working there on the morning of Sunday, 4 July 2004. She opened the shop at about 8.10 am. Shortly after opening, a customer whom Ms Chan knew as 'Catherine' arrived and bought a newspaper and flowers. The tape from the cash register indicated that Catherine came in on the morning in question at either 8.07 am or 8.20 am. She believed that the purchase recorded as having occurred at 8.20 am was made by Catherine (AB 98).
The evidence of Richardson Winfred Beno George
In July 2004, Richardson Winfred Beno George owned a shop which adjoined the Kebabistan Restaurant.
On the morning of Sunday, 4 July 2004, he was asleep in a room at his shop. He heard several noises in the area. His evidence‑in‑chief was, relevantly, as follows:
Did you hear something in particular?‑‑‑As I said, I heard a noise, an argument, sort of a noise that woke me up, but it was - that's about it.
Can you say about what time that was you were woken up at all?‑‑‑Probably about 7 o'clock.
What sort of noise was that?‑‑‑It's hard to say. The noise basically - because I'd been living there for a while, having business, the noises are more or less the same, so there was no differentiation with the noise.
Can you tell us what - can you describe to us the noise you heard that morning?‑‑‑Well, it was a different language so I couldn't understand it as far as - - -
All right. When you say it was a different language, was that a person making the noise in a different language?‑‑‑Yes, it was a person making the noise.
Was it one person or more than one person?‑‑‑I think the sound of one person.
…
Were you able to tell if it was a male voice or a female voice?‑‑‑It was a male voice.
And for how long did that male voice that you heard go on?‑‑‑I was a bit sleepy. I mean, it might have been 10 - 7, 8, 10 minutes.
About 10 minutes?‑‑‑Yeah, (indistinct)
You could hear that male voice from where you were obviously?‑‑‑Yeah, it was - yeah, well, I heard it but as I said I was still sleepy so it was just a muffled noise.
And it went on for about 10 minutes?‑‑‑About 10 minutes, yeah.
Did you hear or can you describe anything more about the noise you heard?‑‑‑No.
…
All right. Do you say that was one voice, or more than one voice?‑‑‑The voice was sort of similar. I mean, it could have been two voices, one voice. It was a sort of different pitch so - that is, being a different language I just couldn’t work it out basically.
So there were different pitches of voice?‑‑‑Yeah.
Is that how you - in a foreign language?‑‑‑Yes.
And at some point did the voice stop, or voices stop?‑‑‑Yeah, the voice stopped. Yes, the voice stopped.
What did you do then?‑‑‑I just went back to bed.
Sorry?‑‑‑I just went back to sleep.
Do you recall whether your alarm was set that morning?‑‑‑Yep, my alarm was set at 9 o'clock.
Did you get up at that time?‑‑‑Yes (AB 106 ‑ 108).
The appellant's trial counsel elicited relevant evidence, in cross‑examination, as follows:
Being Beaufort Street, it's not unusual to hear noises, from whatever cause, in the morning. Is that correct?‑‑‑That's correct.
There was certainly nothing unusual about these noises that you heard. There was certainly nothing to make you get out of bed and go and investigate or anything of that nature?‑‑‑No.
You were asleep, you heard noises. You can't even say if it was one voice of [sic] two voices?‑‑‑No.
You can assist us by saying from what you heard, it sounded as if it was in a foreign language?‑‑‑Yes.
But you certainly didn't hear any banging or anything like that?‑‑‑No.
Certainly didn't hear any screaming?‑‑‑No.
Anything of that nature at all?‑‑‑No.
…
Do you agree with me that living or working next door to the restaurant, it's not unusual for those people that come to the restaurant, be they workers or customers, quite often to speak in loud voices?‑‑‑Not unusual, no (AB 109 ‑ 110).
Telephone calls by the appellant to the ambulance service and the police
The prosecutor tendered in evidence recordings of telephone calls made by the appellant to the ambulance service and the police.
The evidence of Justine Maureen Morris
By consent, the prosecutor read into evidence a witness statement of Justine Maureen Morris.
At the material time, Ms Morris was employed as an ambulance officer with the St John Ambulance Service. On Sunday, 4 July 2004, at 8.47 am, she received a message which required her and her partner for the day to attend with their ambulance at the Kebabistan Restaurant. They arrived at 8.55 am. As they approached the corner of Clarence and Beaufort Streets, she observed a man standing on the corner who was waving his arms at them. She saw blood on his hands, arms and trousers (AB 114 ‑ 115).
Ms Morris recounted the following conversation she had with the man:
I asked him if he was hurt, to which he replied 'No'. I then asked him if he was bleeding, to which he replied 'No'. I then asked him where the blood was from, pointing at the blood on his body. The male person said, 'My wife'. I then asked him how he got the blood on him and he said, 'I was holding her'. The male person then said something along the lines of 'My wife went out the back and I came out later and she was bleeding' (AB 115).
Ms Morris then entered the Kebabistan Restaurant with a police officer. They entered through the doorway at the rear of the premises. She described what she saw, relevantly:
I followed the police officer into the shop and once inside we turned directly to our right facing Beaufort Street. I noticed that it was quite dark. There was a light coming from further up the corridor but there was no light above us. The hallway was only very narrow. It was less than two metres wide.
I also saw a channel of blood that was running down the right side of the hallway, right down past the doorway. I reckon it would have been about three metres, only a couple of steps from the doorway, before we came to the body of a female. The female was lying supine with her head at the Beaufort Street end and her feet were towards the doorway. Her left hand was gripping onto a pole that was fixed into the concrete floor and her other arm was bent a little on her other side. Her left leg was bent up and the other leg was pretty much straight down.
I also observed that her right shoe was totally off of her foot and it was lying parallel to her foot and the left shoe was only covering her toes. The rest of the shoe was sort of hanging down. The female was wearing a blue‑coloured legging type pants and a light‑coloured top made from T‑shirt type material.
On my initial assessment of the female at approximately 0910 hours I observed that she had a deep laceration to the anterior of her neck. … The female displayed no signs of life.
The blood was all very central to the female and it hadn't started to congeal yet and so I knew that this had happened only very recently. There was a row of bread crates on a brick ledge directly next to the deceased female and also a bag of onions, none of which appeared to have been disturbed. The front of her top and her pants didn't have much blood on them at all. I would have moved no further than one metre past the deceased's hand. I walked in the area where she was. I didn't move around anywhere else in the building. I didn't move the deceased at all during my assessment and when I had finished I left the hallway the same way that I came in (AB 116 ‑ 117).
The evidence of Andrew Stewart Medling
By consent, the prosecutor read into evidence the witness statement of Andrew Stewart Medling.
At the material time, Mr Medling was a police officer who worked at the Inglewood police station. On Sunday, 4 July 2004, he attended at the Kebabistan Restaurant at about 9.02 am. Constable Medling and his partner were the first police officers to arrive. He saw an ambulance and ambulance staff in attendance. They were standing beside a man who was sitting down on the verge and crying. The man had a large bloodstain on his trousers and what appeared to be blood on his hands and arms. Constable Medling approached an open doorway at the rear of the restaurant premises. He saw a small pool of blood just outside the open doorway. He looked inside and saw a number of bloodstained footprints just inside the opening. The footprints appeared to be from a boot or a shoe with a square‑shaped grip pattern. About one metre inside the opening he saw a woman lying on her back with her head closest to Beaufort Street. She was in a narrow corridor and there was a long pool of blood coming from her body towards the open doorway. He stepped inside the entrance and ascertained that it was safe for the ambulance officers to enter the premises. The female ambulance officer then entered the premises and Constable Medling stepped outside (AB 117 ‑ 118).
The evidence of Phillip Francis Astone
At the material time, Phillip Francis Astone was an inquiry agent. He had operated a private investigation business for some years. Between April and July 2004 he was assisted by two employees with surveillance and other activities. One of the employees was named Gaetano and known as Gus.
In April 2004, Mr Astone met the appellant. The appellant wished to retain Mr Astone to carry out surveillance work in relation to Mrs Dabag. The appellant told Mr Astone that he suspected his wife may be having extramarital affairs, and he wished to prove her infidelity with video recorded evidence so he could show the evidence to members of his family. There was a discussion concerning the cost of the provision of Mr Astone's services, and the appellant retained him (AB 122 ‑ 123).
Mr Astone carried out surveillance work on behalf of the appellant between April and July 2004. Mrs Dabag was placed under surveillance on at least a dozen occasions (AB 124).
On the evening of Saturday, 3 July 2004, Mr Astone received a telephone message from the appellant. He requested an update on the surveillance work that Mr Astone had been carrying out (AB 124).
Mr Astone said in cross‑examination that the appellant was referred to him by Gaetano, or Gus. A man called Marco Sorani may also have been involved in the referral. The appellant, either directly or through Mr Sorani, told him that he thought his wife may be having an affair, but he was not sure. The following exchange occurred in cross‑examination:
You also recall [the appellant] giving you his wife's name, the address of the matrimonial home and also some phone numbers from missed calls that had been made to her phone?‑‑‑That's all correct apart from me receiving her name.
You also recall receiving a photograph at some stage?‑‑‑That's correct.
You also recall him giving you some names of people that he had asked you to check?‑‑‑That's correct.
Do you recall that on an occasion he would also speak to you about her whereabouts at specific times?‑‑‑That's correct.
And you agree with me that at one stage he gave you the name of a - and I will spell it - R‑o‑n‑a‑i‑k and asked if you could find out who was this particular person's mother?‑‑‑Yes.
…
Do you agree with me that [in] some of the conversations that you had or some of the information that you received from Mr Mahmood it appeared that he was checking out your ability to actually do the job?‑‑‑That's correct.
…
Do you also agree with me that he indicated to you on a number of occasions that although he was asking you to carry out these various checks and surveillances he was hoping that in fact it wasn't true?‑‑‑Obviously, yes.
And he was also saying to you, 'Look, if it is, I need something objective on video to show both my family and also her family'?‑‑‑That's correct.
The calls - and please correct me if I have misunderstood this situation, but what you're saying as I understand it, relating to the call on the Saturday, is that you didn't actually speak to Mr Mahmood?‑‑‑That's correct.
It's not an SMS we're talking about?‑‑‑No.
It's actually a voice‑mail?‑‑‑Correct.
You didn't speak to him and then when you returned the call it in fact was the situation that you didn't speak to him then either, did you?‑‑‑That's correct (AB 127 ‑ 128).
The evidence of Marco Sorani
Marco Sorani was born in Kurdistan in Northern Iraq. In 1995 he came to Western Australia. After his arrival, he became acquainted with the appellant and Mrs Dabag.
Mr Sorani said that the appellant and Mrs Dabag were like a brother and sister to him. He often and regularly went to the Kebabistan Restaurant. If he was in Perth he would go there every day. Also, Mr Sorani had been to the home of the appellant and Mrs Dabag on many occasions. He had had meals with them.
In April 2004, the appellant told Mr Sorani that he needed a private investigator. Mr Sorani introduced the appellant to his friend, Gus. The appellant told Mr Sorani that he needed someone to 'watch his wife' (AB 133).
On the morning of Sunday, 4 July 2004, Mr Sorani had 'a pimple between [his] legs' (AB 133) that was causing him a lot of pain. He went to the Kebabistan Restaurant before going to a nearby pharmacy. On arrival at the restaurant, the only motor vehicle he noticed in the vicinity was the appellant's vehicle. It was a dark blue station wagon. The vehicle was parked in a car bay at the rear of the restaurant.
Mr Sorani entered the restaurant through the rear door. The door was open. He heard some Kurdish or Middle Eastern music. On entering the premises, he turned right, into the passageway, and went to the kitchen. Mr Sorani saw the appellant and his wife. He stayed with them for 'a couple of minutes' and then went to the male toilet. After spending some (unspecified) time in the male toilet, he went to the female toilet. The female toilet had a mirror (which, it appears, the male toilet did not). Mr Sorani said he went to the female toilet because he 'just wanted to look at [himself]' (AB 137). He then returned to the kitchen to say goodbye to the appellant and his wife.
Mr Sorani, the appellant and his wife had a discussion about Sydney (Mr Sorani was proposing to travel there), and there was some discussion about his pimple. Mr Sorani spoke with them for 'a couple of minutes, maybe five or ten' (AB 138). Mr Sorani then departed. He was not sure by which door he left. The restaurant had two doors; the 'rear (or side) door' on Clarence Street and the 'front door' on Beaufort Street.
After Mr Sorani left the Kebabistan Restaurant he went to the pharmacy. He then went to a friend's house. When he arrived at the friend's house he realised his mobile telephone was missing. He thought he may have left it in 'the toilet in the restaurant' (AB 139). Mr Sorani returned to the restaurant in his motor vehicle. He went into the premises by the rear door. The door was open. He went to both toilets. He did not, however, find his mobile telephone. He then gave the following evidence:
And then what happened?‑‑‑Then I came out and I saw a body lying there in the middle of the counter [sic].
When you say 'a body lying there,' was that in front of you?‑‑‑It was further away.
…
Did you go closer?‑‑‑Yes.
And when you went closer could you see who it was?‑‑‑When I went over, yeah, I knew who it was.
…
It was Chnar. Is that right?‑‑‑That's - yep.
She wasn't moving?‑‑‑Not that I could see.
Could you tell if she was alive or not?‑‑‑Well, I'm not an expert, I don't know, but I don't think. I'm not sure, sir, if she was alive or not.
But she wasn't moving. Could you see anything about her body?‑‑‑A lot of bloods [sic], a lot on her.
Did you come close to her body or not?‑‑‑Yes.
Did you have any contact with her body?‑‑‑No.
Did you see anybody else there at that point?‑‑‑No.
What did you do then?‑‑‑Then I feel like maybe Mr Mahmood was getting stabbed too so I got worried, looking for him.
Can you show us, from there on the plan, where you went looking for him?‑‑I went back in here to the - then I went back around to the bakery.
So that's in the door to the - which is open the side entrance, and then you said you went towards - more towards the front of the shop. Is that right? And did you see Dlshad?‑‑‑No.
Did you say anything yourself?‑‑‑Yeah, I called his name but I couldn't - had no response.
Did you call out softly or loudly?‑‑‑I don't know what to say but yeah, I called, yeah.
Did you call out to him by his name or - - -?---No, we usually use this nickname for friends, like (indistinct) it's just a nickname we use.
Where did you go from there?‑‑‑Then I left.
When you left, how did you leave? Which way did you go?‑‑‑When I came out of the kitchen I didn't want to walk over the body again because it's not polite in our culture, so I left through the front door.
So you went up through that area you have described, into the kitchen, and then right away through the front door in Beaufort?‑‑‑That corridor straight out to the front door, yeah.
Did you go to your car after that point?‑‑‑Yes.
So you turned right down Clarence to the car?‑‑‑Down Clarence.
Did you see Dlshad either in the kebab shop at that time or anywhere outside?‑‑‑I don't see him.
You drove off?‑‑‑Yes (AB 140 ‑ 141).
Mr Sorani said that he did not contact the police on 4 July 2004. He did not want to be involved.
The appellant's trial counsel cross‑examined Mr Sorani. The cross‑examination elicited the following:
(a)Mr Sorani made a statement to the police. In the statement he did not mention having returned to the Kebabistan Restaurant on the second occasion (AB 142).
(b)Mr Sorani told the police that when he returned home after his (first) visit to the restaurant, he woke his girlfriend, went to a McDonald's fast food outlet, attended at a medical centre and visited his estranged wife (AB 142).
(c)Mr Sorani had a shower at his estranged wife's home (AB 144).
(d)Mr Sorani left the clothes he had been wearing on the morning in question with his estranged wife. He said she still did his washing, and he left the clothes he had been wearing for her to wash.
(e)The police asked Mr Sorani to produce the shoes he was wearing on the morning in question. He gave the police a pair of shoes that he did not wear, and destroyed or discarded the shoes he had worn (AB 144).
(f)When the police ascertained that the pair of shoes Mr Sorani had given them were not in fact the shoes he had worn on the morning in question, Mr Sorani told them he had thrown the shoes he had worn next to a bin (AB 145).
(g)Mr Sorani was driving a white Holden Commodore motor vehicle on the morning in question. Shortly after 4 July 2004, he arranged for his girlfriend to clean the interior of the vehicle at a petrol station. The cleaning occurred 'a couple of days' after 4 July 2004 (AB 145).
(h)In his statement to the police, Mr Sorani said he left the restaurant by the front door. In a video recorded 'walk through' he told the police he left by the rear door (AB 148, 152).
The following exchange occurred in cross‑examination in relation to Mr Sorani's first visit to the restaurant on 4 July 2004:
Do you agree, for example, that when you actually went in through the side door, do you agree with me that you went straight up the passage to where Mr Mahmood and his wife were working?---Yes.
And there was a bit of a joke, bit of a joke about - I think he said to you something like, 'Has your girlfriend' or wife - 'thrown you out again'?‑‑‑Something like that.
There was also a bit of a joke about your medical condition?‑‑‑Yes.
…
What I then suggest is that you didn't go to the toilet but you stayed in there till you left?‑‑‑No, I went to the toilet there.
Is it possible that you in fact have got the sequence wrong. You went up to the male and female toilets before you actually went up - - -?‑‑‑No.
- - - to the bakery-kitchen area?‑‑‑No.
Quite sure of that?‑‑‑Because I just didn't want - I went straight there to let them know I'm back.
Do you agree with me that you were asked by Mr Mahmood - you were asked by Mr Mahmood to in fact come back and collect some mail or some documents to take - - -?‑‑‑Which - I was going to Sydney - give some for his friends in Sydney.
Because there had been a discussion?‑‑‑Yes.
He knew that you were working in Sydney or going to Sydney on occasions?‑‑‑Yeah.
On a previous occasion they had some stuff for you to take to Sydney that you hadn't taken?‑‑‑That's true.
And you agree with me that he said - that he said that he wanted you to take some, I think it was some documents or some mail to Sydney?‑‑‑Yeah, to his friends.
And asked you to come back later that day to get them?‑‑‑Yeah, if I could come back, pick them up.
And that's how it was left; that you would be coming back later on to get the mail in due course?‑‑‑Later, maybe yes.
You see, it's the position, is it not, that as far as that visit is concerned, it was only a relatively short period of time that you were there?‑‑‑Yep.
Do you remember the deceased in fact passing comment or not approving of your conduct because you were married, weren't you, but you had separated from your wife, you were living with another girl?‑‑‑Yes.
And she was relatively young?‑‑‑Yeah.
How old was she?‑‑‑16 I think.
And do you remember Chnar voicing or saying something to indicate that she didn't approve of that?‑‑‑I can't recall.
Do you understand the question?‑‑‑Not really, no.
Chnar saying things such - that 'You shouldn't be with her, you should be with the wife'?‑‑‑I don't recall that.
Do you recall Chnar passing some comment about, 'You shouldn't be here. You should be with your wife'?‑‑‑I don't recall.
Don't recall; all right. Do you agree with me that what you in fact told the police is that when you went into the passageway, when you came out from your car and went inside to the passageway, you actually looked inside the storerooms - - -?‑‑‑Yeah, the door was open.
Why in fact did you look inside the storerooms?‑‑‑Well, it's just like my shop, you know. I always go there, so I wanted to close it.
When do you say you looked inside the storerooms?‑‑‑Well, I just looked inside and closed the - - -
But when? When? Before you had gone to the toilet or after ‑ ‑ ‑?‑‑‑I can't exactly - - -
Or you can't recall? Could it be that you're not sure of the sequence of those particular matters?‑‑‑I cannot - I wasn't paying much - wasn't important - - -
Do you agree with me that when you arrived on what you say is the first time, there was no argument between the accused and his wife?‑‑‑No, they were very happy.
They were basically working away?‑‑‑Yep.
And you had been there on many occasions and the deceased is usually helping Mr Mahmood do his work and - - -?‑‑‑Yeah.
And they seemed to be quite happy to have a laugh with you?‑‑‑Very happy.
No‑one was taking anything serious about the pimples or anything like that at all?‑‑‑No.
There was certainly no loud voices or arguments or anything of that nature?‑‑‑No.
Do you agree with me - what I suggest is that the music in fact wasn't on, there wasn't any music playing at all when you went there. Do you agree with that or disagree with that?‑‑‑No, there was music but it wasn't very loud. We turned it down when we started talking - - - (AB 157 ‑ 159).
The following exchange occurred in cross‑examination in relation to Mr Sorani's alleged second visit to the restaurant on the morning in question:
You see, you then say that you went back in fact on a second occasion ‑ ‑ ‑?‑‑‑Yes.
In fact on the second occasion was when you discovered the body of the unfortunate deceased?‑‑‑That's true.
Would you agree with me that when you saw the body it was obviously a tremendous shock to you?‑‑‑Of course it was.
Do you also accept that what then took place after that you were in a state of panic?‑‑‑(indistinct)
I'm sorry, 'panic' is probably not the right word. Shock?‑‑‑Yes.
Your sequence of events may well again not be accurate as to exactly what you did from the time you discovered the body?‑‑‑Well, I'm not an expert so I don't know how you put it.
Isn't it the position that in fact you didn't go past the body into the bakery into the kitchen and call out for Mr Mahmood?‑‑‑I didn't get your question. Could you - - -
Okay. You would agree with me that when you found the body you were shocked?‑‑‑Yes.
You were distressed?‑‑‑Yes.
Upset?‑‑‑Yeah.
What I'm asking you is whether what has taken place after you have seen the body you might be confused or out of sequence. Events are a bit hazy after that particular discovery of the body?‑‑‑I'm not an expert. I don't know what you mean by that but I was shocked.
What I'm saying is that you didn't in fact call out for Mr Mahmood?‑‑‑I'm sure I did call out.
It's the position, is it not, that in fact as soon as you found the body did you then leave [sic] straightaway?‑‑‑I wanted to see if she got stabbed or something, so I wanted to find out - - -
What you're saying is that you then went up to the bakery kitchen and through the restaurant. Is that right?‑‑‑Came out (indistinct) yes.
I suggest to you that in fact if you came back on the second occasion that Mr Mahmood at all times was in the restaurant?‑‑‑I must have missed him somehow. I don't see him.
In fact it's the position, is it not, that you felt, after the police became involved, that you may be implicated in fact [in] the death?‑‑‑I don't know what you mean by that.
Okay. You knew that there was a dead woman in the restaurant. Correct? You knew that the police were investigating?‑‑‑Yes.
You knew you had been there at the restaurant?‑‑‑Yes.
You thought that the police would blame you?‑‑‑No, I never told that.
You were anxious, were you not, to distance yourself from anything to do ‑ ‑ ‑?‑‑‑‑I don't want to be involved but I never told one minute [sic] the police would blame me.
But you destroyed or got rid of your boots. Correct?‑‑‑Yeah.
Had a shower?‑‑‑Yeah.
You in fact knew that your car had been cleaned shortly after?‑‑‑Not shortly after, a couple of days.
You also gave the police a wrong set of boots?‑‑‑Yes, I did.
And you also gave the police - omitted to tell the police important information. When they asked you for a statement you didn't put about going back there for a second time, did you?‑‑‑I wanted to help the family, you know (indistinct) I ask them. They say, 'Go tell the police whatever you know.'
Do you agree with me that when you made your first statement to the police you didn't tell them what you say is the full truth?‑‑‑I didn't say - I didn't lie to the police.
You didn't tell them about going back and finding the body?‑‑‑It doesn't mean I lie.
You knew they were interested in what was going on at that restaurant?‑‑‑Yeah, but we wanted to know‑ ‑ ‑
And you made a statement saying, 'Look, I went there on the first occasion. Then I left. Went about my business to the chemist, got some McDonalds' and just completely omitted the fact that you had gone back and discovered the body?‑‑‑I went back, yes.
Correct?‑‑‑Yes.
And you did that deliberately?‑‑‑What do you mean by that?
You were deliberately doing everything you possibly could to distance yourself from the body?‑‑‑What's that supposed to mean?
Why did you get rid of your boots?‑‑‑You see a lot of movies. You don't want to be involved in these kind of things.
Why didn't you want to be involved in the case? You had done nothing wrong?‑‑‑Yeah, I know I done nothing wrong.
The reason you didn't want to get involved is you thought you were a suspect; the police would blame you?‑‑‑Not for that because, you know, I'd been in the picture for a while with the police so I didn't want to be involved (indistinct).
Did you in fact wash your clothing before the police seized it?‑‑‑I don't know. I left them in the bathroom.
I'm sorry, you left them - - -?‑‑‑(indistinct) my ex‑wife does.
Okay You say that you didn't wash your clothes. Your former wife did, Dora?‑‑‑She does my washing, but I don't know if she did it or not.
So you in fact, as soon as you got there, changed, leaving the clothes that you were wearing at your ex‑wife's?‑‑‑I always do that.
Then you went specifically to dispose of the boots. Correct?‑‑‑No, I throw the boots before I even go to home.
And then a few days later your car was cleaned by the girl that you were living with, the 16 or 17‑year‑old that you have told us about?‑‑‑Yes.
Taking you back if I may - I'm sorry, I will withdraw that. Did the police ever indicate to you at any stage that you were what's called a suspect or a person of interest?‑‑‑I don't remember, no.
The police had indicated or told you - the police had told you, didn't they ‑ ‑ ‑?‑‑‑Told me what?
The police told you that people thought that you may have been involved. Did the police ever say that to you? First of all, do you understand the question?‑‑‑Not really.
Okay. You had many meetings with the police over your statements?‑‑‑When the police thought that I helped Mr Mahmood. That's what they thought.
The police told you that they thought that you were involved. Is that right?‑‑‑They thought if I help him to get rid of whatever. I told them no.
All right, and the position is that you're not suggesting at any stage that Mr Mahmood has ever asked you to get rid of a weapon or anything of that nature at all?‑‑‑No.
He has never in any shape or form said to you that he has hurt his wife or murdered his wife or anything like that at all?‑‑‑Never (AB 159 ‑ 163).
As to the evidence of Constable Hunter and Senior Constable Sofulak, Ms Pantano deposed that Constable Hunter arrived at the Kebabistan Restaurant on 4 July 2004 at about 9.02 am. In a statement dated 4 July 2004, he said that upon arriving at the restaurant he saw the appellant sitting on the ground crying. The appellant had bloodstains on the back of his hands. Constable Hunter asked the appellant to produce his licence. The appellant then grabbed his wallet from the pocket of his trousers and opened it. Also, Ms Pantano deposed that Senior Constable Sofulak prepared a statement dated 7 September 2004. In the statement, he said he arrived at the Kebabistan Restaurant shortly after 9.07 am on 4 July 2004. He saw the appellant and asked him his name. The appellant gave a response which Senior Constable Sofulak did not understand. According to Senior Constable Sofulak, the appellant then reached into his rear trouser pocket and took out a wallet, opened the wallet and handed him a Western Australian driver's licence.
The merits of the appellant's application for leave to adduce additional evidence in the appeal
At common law, there is, of course, a well‑established distinction between new evidence, on the one hand, and fresh evidence, on the other. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. Fresh evidence is evidence which either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen [2005] WASCA 62 [9].
In Lawless v The Queen (1979) 142 CLR 659, Mason J said, in relation to new evidence:
However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted … If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand (675 ‑ 676).
In Mickelberg v The Queen (1989) 167 CLR 259, Mason CJ expressed the test to be applied by an appellate court, in deciding whether to set aside a conviction on the ground of fresh evidence, as follows:
It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen ((1986) 160 CLR 392). Deane J and I (at 402) considered that the test was best expressed in those terms. Gibbs CJ (at 399) expressed his substantial agreement with the statement, although his Honour emphasized that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said (at 421) that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say (at 421) that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements (273).
The approach of an appellate court to the consideration of fresh evidence will be different if the appellant submits that a conviction should be set aside outright (and there should not merely be a retrial) in that innocence is shown, or the existence of an appropriate doubt established. See Ratten v The Queen (1974) 131 CLR 510, 518 ‑ 519 (Barwick CJ), and the examination of the relevant issues by Steytler J (as his Honour then was) in Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [207] ‑ [211].
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P (Wheeler and Pullin JJA agreeing) reviewed the relevant authorities concerning the admissibility at common law of new and fresh evidence on appeal, and said:
It has been suggested that the distinction between fresh and new evidence is not as significant as it once was: see, for example, Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, per Malcolm CJ with whom Pidgeon and Murray JJ were in agreement. However, as this Court has noted in Easterday v The Queen (2003) 143 A Crim R 154 at [204] and in Beamish at [13], the distinction is one which is soundly based in principle and which continues to be recognised, even though there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials: see Ratten v The Queen (1974) 131 CLR 510 at 517; Mickelberg (High Court) at 301; De La Espriella-Velasco v The Queen (2006) 31 WAR 291 at [150] - [153].
Where the evidence is fresh, the test appears to be whether there is a significant possibility that, in the light of all of the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted the accused: see Gallagher, at 399, 402 and 421; Mickelberg, at 273, 275 and 302; Beamish at [14] [81] ‑ [82].
I agree, with respect, with his Honour's observations.
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence;
…
In Rinaldi, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
Counsel for the respondent submitted that this court's power under s 40 of the Criminal Appeals Act to admit additional evidence on appeal must be exercised in the context of the grounds of appeal. If the additional evidence sought to be adduced is not relevant to a ground of appeal, the court is not empowered by s 40 to admit the evidence. In the present case, the sole ground on which the High Court allowed the appeal was the learned trial judge's failure to provide a direction, in the nature of a warning, which the jury was required to follow, in relation to the prosecutor's invitation and comments in his closing address. According to counsel for the respondent, the additional evidence on which the appellant seeks to rely is not relevant to that ground and, in consequence, this court does not have power under s 40 to admit the evidence.
In my opinion, the respondent's submission is without merit. The status of the appellant's appeal before this court on remitter is that the appeal is still on foot. The appellant has made out an error of law by the learned trial judge within s 30(3) of the Criminal Appeals Act and the issue before this court is whether, despite that error, this court should dismiss the appeal under s 30(4). In my opinion, the court's power under s 40 is not circumscribed in the manner contended for by the respondent. The power to admit additional evidence on appeal is exercisable if the evidence in question is relevant to any issue before the court, including whether or not this court should be satisfied, in terms of s 30(4), that no substantial miscarriage of justice has occurred, even though the evidence does not directly relate to an existing ground or a proposed new ground of appeal.
I will deal now with the appellant's application to the extent it relates to Mr Sorani.
Counsel for the appellant submitted to this court that the evidence of Mr Sorani's plea of guilty and his conviction was relevant and had probative value in the present case. First, Mr Sorani's credibility (in particular, his evidence about returning to the restaurant) should be seriously questioned. Secondly, Mr Sorani was the kind of person who would stab someone in a fit of rage, and it was possible, together with other evidence at the trial, to infer from the fresh evidence that he 'could be responsible for the crime' (ts 18) of which the appellant had been convicted.
The appellant's trial commenced on 20 February 2006. By letter dated 14 February 2006 from the prosecutor to the appellant's trial counsel, sent by facsimile transmission, the prosecutor informed the appellant's counsel, relevantly, as follows:
I enclose a copy of the criminal history of Marco Sorani, together with a copy of the statement of material facts in relation to the recent allegations against him of unlawful wounding and threats to kill. You will also be aware of his publicised involvement in the Metro City Nightclub stabbing and shooting incident in the early hours of 23 January 2005. However, should you choose to go down the path of attacking his credit, I will object to any reference to that last aspect for these reasons: Sorani has never faced a charge arising from the nightclub incident. There were proposed Corruption & Crime Commission charges against him arising from his subsequent questioning before the Corruption & Crime Commission but the Court of Appeal dismissed that charge or charges and that was the end of the matter.
The statement of material facts enclosed with the prosecutor's letter related to the offences in respect of which Mr Sorani subsequently pleaded guilty and was convicted. The statement reads, relevantly:
1)ACCUSED 1: SORANI, Marco
OFFENCE:Unlawful Wounding
Section 301(1) Criminal Code
INCIDENT NUMBER: 100106150011308
VICTIM 1:WOOD James David
The complainant in this matter is a 40 year old male about 180 cms tall and of medium build. He has indicated that he would like to supply a victim impact statement.
At about 2.00pm on Tuesday 10th January 2006 the accused was driving a vehicle on the Mitchell Freeway Leederville. A vehicle being occupied by both complainants verged into the lane causing the accused to brake.
The accused drew level with the complainants and indicated that they should stop on the emergency stopping lane. He repeated the gesture until they complied. Once both vehicles were stationary the accused has alighted from his vehicle and approached the complainant David WOOD.
As the complainant spoke the accused has pushed him causing his body to turn and exposing his left side. The accused stabbed the complainant in a punching motion under the left arm pit with a 40 mm bladed knife that he held in his right hand, causing a 40 mm cut. The complainant felt a stabbing pain and retaliated by punching the accused to the face a number of times before collapsing down onto one knee.
The complainant was aided by his son to return to their vehicle and the accused returned to his vehicle.
The complainants were admitted to hospital for treatment where they were kept overnight for treatment to their injuries.
2)ACCUSED 1: SORANI Marco
OFFENCE:Unlawful Wounding
Section 301(1) Criminal Code
INCIDENT NUMBER: 100106150011308
Victim 1:WOOD David Douglas
The complainant in this matter is a sixteen year old male approximately 180 cms tall of average build. He is the son of the first complainant. He has indicated that he wishes to supply a victim impact statement.
The complainant approached the accused who had hold of the first complainant[']s clothing and would not let go. He came to the aid of his father and punched the accused on face and hand to break his hold.
The accused stabbed the complainant in the left shoulder area causing a pinching pain. Almost immediately after the complainant felt a stabbing pain just above the original injury.
The accused and both complainants returned to there [sic] respective vehicles.
The complainants were admitted to hospital for treatment where they were kept overnight for treatment to their injuries.
On Friday 13th January 2006 the accused attended at Perth Detectives Office in response to a request by police. He was conveyed to Wembley Detectives Office where he declined to answer allegations in relation to the offences.
Accordingly, the appellant's trial counsel knew before the commencement of the trial that Mr Sorani had been charged in connection with the road rage incident and knew of his impending trial (ts 16). The appellant's counsel also knew of other matters (being the matters referred to in the prosecutor's letter and the matters directly relevant to the charge against the appellant on which Mr Sorani was cross‑examined at the appellant's trial) which impacted on Mr Sorani's credibility and reputation (ts 16). The only fresh evidence relating to Mr Sorani that the appellant seeks to adduce on the appeal is the guilty plea and the conviction.
At trial, the appellant's trial counsel made a confined challenge to Mr Sorani's evidence. The challenge was limited to his evidence that he returned to the restaurant, found Mrs Dabag's body and the appellant was not present. The appellant's counsel made a decision to confine, in that manner, his challenge to Mr Sorani's evidence.
Further, the appellant's trial counsel made a decision not to cross‑examine Mr Sorani in relation to the matters disclosed in the prosecutor's letter, including the statement of material facts. His counsel could have sought to impugn Mr Sorani's credit and reliability on the basis of that material, and the subsequent plea of guilty and conviction does not, in my opinion, materially alter the position.
As I have mentioned, the appellant's trial counsel was an experienced and capable criminal defence counsel. He did not put to Mr Sorani in cross‑examination that he was responsible for or had been involved in Mrs Dabag's death, and he did not suggest to Mr Sorani that there was any animosity between him and the deceased. See [228] above. Also, as I have mentioned, it was not suggested before this court (and it could not properly have been suggested) that the appellant's trial counsel did not conduct a competent cross‑examination of Mr Sorani or did not otherwise conduct the appellant's defence competently. No evidence was adduced before this court to the effect that trial counsel's failure to cross‑examine Mr Sorani in relation to the road rage incident was not a calculated decision; that is, there was no evidence that the failure was attributable to a mistake or an oversight.
I have decided that, even without the additional evidence sought to be adduced by the appellant, Mr Sorani was not a credible or reliable witness. I have not relied on any of Mr Sorani's evidence in concluding that the respondent has proved the appellant's guilt beyond reasonable doubt. Further, I have decided that the submission of the appellant's counsel to this court that there was a suspicion Mr Sorani may have been responsible for Mrs Dabag's death, alternatively, that Mr Sorani's conduct at the material time raised a reasonable doubt as to whether the appellant killed her, should be rejected. See [228] ‑ [229] above. Even if the fresh evidence sought to be relied on by the appellant (that is, the guilty plea and the conviction) were to be admitted, that evidence would not alter my opinion on those submissions. It is apparent from the papers before this court that the knife used by Mr Sorani in the road rage incident was a small penknife that was attached to a key ring. That kind of knife and the circumstances in which it was used are far removed from the present case in which there was no evidence that Mr Sorani had any motive to kill Mrs Dabag, there was no evidence that he harboured any animosity towards her, and the nature of the wound inflicted on her was vicious, clinical and atypical.
In my opinion, the appellant has not established any proper basis for the admission of the fresh evidence in relation to Mr Sorani.
I turn now to consider the appellant's application to adduce the other evidence in the appeal.
During oral submissions before this court, counsel for the appellant said:
I turn now briefly to Mr McCance's evidence of the DNA in the pocket. I can deal with this quite quickly. In the Court of Appeal last time [the court held that] the evidence of the DNA in the back pocket was not probative of guilt by itself because there were other theories that were consistent with innocence. If that is the position that is taken by this court on this appeal then I don't need to put in evidence [sic] to otherwise undermine the theory that he may have put the knife in the back pocket (ts 24).
This court indicated to counsel for the appellant that his proposition was correct (ts 24).
On appeal from this court, the High Court held that the jury was not in a position to conclude that the bloodstains in the pocket of the appellant's trousers were made by a knife or other murder weapon placed by the appellant in the pocket. There were other possibilities, consistent
with innocence [28]. The learned trial judge adequately directed on this point.
I have not relied on the bloodstains in the pocket of the appellant's trousers in concluding that the respondent has proven the appellant's guilt beyond reasonable doubt.
As to the evidence of Constable Hunter that, upon arriving at the restaurant on 4 July 2004, he saw the appellant sitting on the ground crying, I have accepted that at the material time the appellant was emotionally distressed.
In the circumstances, I would not receive the evidence of Senior Constable McCance, Constable Hunter or Senior Constable Sofulak.
Conclusion
I would dismiss the appellant's application to adduce additional evidence in the appeal.
I would also dismiss the appeal in that, even though the appellant has established that the learned trial judge made an error of law, I consider that no substantial miscarriage of justice has occurred.
MILLER JA: I agree with Buss JA.
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