Mahmood v State of Western Australia [2008] HCA 1 30 January 2008 P39/2007
ORDER
1. Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 14 May 2007.
3.Remit the matter to the Court of Appeal of the Supreme Court of Western Australia for further hearing and disposition in accordance with the reasons of this Court.
On appeal from the Supreme Court of Western Australia
Representation
J J Edelman with C H Withers for the appellant (instructed by Kott Gunning Lawyers)
B Fiannaca SC with D A Lima for the respondent (instructed by Director of Public Prosecutions for Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Mahmood v State of Western Australia
Evidence – Criminal law – Portions of "walk through" video tendered by defence at trial – Prosecution objected to tender of whole video – In closing prosecutor invited jury to draw adverse inferences from portions played – Trial judge refused to allow defence to re-open case to tender whole of video – Whether re-opening ought to have been allowed – Whether a direction to the jury was required to overcome prejudicial effects of the prosecutor's invitation.
Criminal law – Practice and procedure – Directions to jury – Distinction between directions and comments – Whether trial judge's statements in summing up amounted to a direction.
Evidence – Criminal law – Duty of prosecutor to tender all inculpatory statements – Whether prosecutor obliged to tender "walk through" video in whole or in part.
Evidence – Criminal law – Evidence of blood stains in pocket – Whether accused had had opportunity to respond to blood-stain allegation – Whether judge's direction to the jury on this point was sufficient.
Evidence – Criminal law – Evidence of blood stains in pocket not put to prosecution witnesses but mentioned by prosecutor in closing – Whether judge required to give a Jones v Dunkel direction.
GLEESON CJ, GUMMOW, KIRBY AND KIEFEL JJ. Dlshad Hamad Mahmood (the appellant) was found guilty by a jury of the wilful murder of his wife following a trial in the Supreme Court of Western Australia. The murder took place on Sunday 4 July 2004 at premises at Mt Lawley where the appellant and his wife conducted a restaurant business called the Kebabistan Restaurant. In his evidence the appellant said that, after a visit from a friend he began cleaning the premises whilst his wife went to the toilet. When she did not return he went to find her. She was lying in a passageway bleeding. Her throat had been cut. He said that he picked her up but she was not breathing. He went outside to see if the person responsible was still…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mahmood v Western Australia [2008] HCA 1
Case
[2008] HCA 1
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by the appellant, Mahmood, against his conviction in the Supreme Court of Western Australia. The dispute arose from the prosecution's decision not to tender a full video recording of the appellant's re-enactment of events, despite the defence seeking to tender it. The prosecution had only consented to the tender of a portion of the video, arguing the remainder was "self-serving". The High Court of Australia considered whether the trial judge erred in refusing to allow the defence to re-open its case to tender the whole video and whether a direction to the jury was required to mitigate any prejudicial effect from the prosecutor's invitation to draw adverse inferences from the played portions.
The legal issues before the High Court included whether the prosecutor was obliged to tender all inculpatory statements, including the full "walk through" video, or at least parts of it. The Court also considered the distinction between directions and comments made by a trial judge in their summing up, and whether the judge's statements amounted to a direction. Furthermore, the Court examined whether a *Jones v Dunkel* direction was required when evidence of blood stains in the appellant's pocket was mentioned by the prosecutor in closing but not put to prosecution witnesses.
The High Court held that there was a failure to give a direction to the jury regarding the use they could not make of the excerpt of the video recording. The commentary provided by the prosecution as to its evidentiary value was considered a wrong decision on a question of law. The Court found that the appellant's participation in the re-enactment involved assertions of fact that were both relevant and admissible as evidence against him, including his presence at the scene and his opportunity to inflict the injuries. While the appellant's explanations during the re-enactment were proffered as exculpatory, the prosecution's selective tendering and invitation to draw adverse inferences from the played portions necessitated a proper direction to the jury.
The High Court allowed the appeal on the ground of the failure to give a proper direction. The Court set aside the order of the Court of Appeal of Western Australia and remitted the matter to that Court for further hearing and disposition, including consideration of whether there had been no substantial miscarriage of justice.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 14 May 2007.
3. Remit the matter to the Court of Appeal of the Supreme Court of Western Australia for further hearing and disposition in accordance with the reasons of this Court. (Joint judgment of Gleeson CJ, Gummow, Kirby and Kiefel JJ, Hayne J agreeing in a separate judgment)
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
CJ, GUMMOW, KIRBY AND KIEFEL JJ
HAYNE J
The second ground therefore fails.Conclusion and orders There was a failure to give a direction to the jury as to the use which they could not make of the excerpt of the video recording. The commentary which was provided as to its evidentiary value reflects a wrong decision on a question of law, a ground provided for by s 30(3)(b) of the Criminal Appeals Act. The appeal to this Court should be allowed on this ground only. There remains for consideration the application of the proviso, in sub-s (4). The matter should be remitted to the Court of Appeal to consider whether there has been no substantial miscarriage of justice[22].[22]See Weiss v The Queen (2005) 224 CLR 300. To give effect to this conclusion, the appeal should be allowed. The order of the Court of Appeal of the Supreme Court of Western Australia should be set aside. In place of that order, the proceedings should be remitted to the Court of Appeal for the completion of the hearing of the appeal consistent with these reasons. I agree with the other members of the Court that, for the reasons their Honours give, the appeal should be allowed and the matter remitted to the Court of Appeal of the Supreme Court of Western Australia. In the course of their investigations police asked the appellant to re‑enact what had happened when, as the appellant had it, he found his wife bleeding to death in a passageway behind their restaurant. The appellant agreed to do this, and the re‑enactment was video‑recorded. If, in the course of the re‑enactment, the appellant made assertions of fact that were inculpatory, the record of that re‑enactment was both relevant and admissible evidence at the appellant's trial. By the very nature of the re‑enactment in which the appellant participated he made assertions of fact that were inculpatory. Those out‑of‑court assertions against interest were admissible against him at his trial. The simplest and most obvious of those assertions against interest was that he was present at the restaurant when his wife was murdered. And much, if not all, of what the appellant said and did during the re‑enactment acknowledged that he had had the opportunity to inflict on his wife the injuries from which she died. The appellant denied that he had killed his wife and during the re‑enactment he sought to explain how it was that he had heard no assault upon his wife and had come to have so much of his wife's blood on his clothing. These explanations were proffered by him as exculpatory. And what the appellant said and did during the re‑enactment was substantially in accordance with what he said to police when he was interviewed at a police station, and a video recording was made of that interview. In that record of interview, the appellant gave an account of events in which he asserted that he had not murdered his wife. The prosecution tendered the video recording of the interview with police but did not tender the record of the re‑enactment. When trial counsel for the appellant sought to tender part of the record of the re‑enactment and offered to tender it all, the prosecution consented to the tender of only part because, so it was submitted, the full record was "self‑serving".
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
CJ, GUMMOW, KIRBY AND KIEFEL JJ,
HAYNE J