Mariam v The Queen

[2014] HCATrans 286

[2014] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S224 of 2014

B e t w e e n -

MAHMOUD MARIAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 12.13 PM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR P.D. LANGE.  (instructed by Matouk Joyner Solicitors)

MR J.H. PICKERING, SC:   I appear for the respondent, your Honour.  (instructed by Director of Public Prosecutions (NSW))

GAGELER J:   Yes Mr Reynolds.

MR REYNOLDS:   In my submission, the Court of Criminal Appeal’s reasoning contains two errors in relation to the issue of fact finding on sentence, the first of which raises a point of principle.  The first point is whether any inference of fact can be drawn from a co‑accused’s acquittal.  We submit that the drawing of such an inference of fact from a co‑accused’s acquittal is impermissible for at least two reasons.  The first is set out in the application book at page 238, about line 28, where it is there noted – this is a quote from a speech of Lord Salmon, a quote from R v Darby, and that is that a person’s acquittal, a co‑accused’s acquittal cannot:

affect anyone but himself and indeed would not be admissible in evidence on behalf of or against anyone else.

GAGELER J:   I am sorry, what page is it?

MR REYNOLDS:   Page 238, line 28.  I am sorry, your Honour.

GAGELER J:   Thank you.

MR REYNOLDS:   The second – would your Honour like a moment to read that?

GAGELER J:   Yes, thank you – I have read it.  I just could not locate it.

MR REYNOLDS:   The second problem with it as a matter of principle is disclosed by the quote on that same page at line 32, a quote from the judgment of Sir Garfield Barwick, where he concludes by saying:

all that can certainly be said of a verdict of acquittal is that the accused was acquitted.”

Of course, this is all bound up with the fact that most of the time the jury is considering simply whether there is a reasonable doubt.  Now, those are probably only dicta on this issue, but we say that as a matter of principle, those two statements are correct and mean that it is not possible to make any inference of fact from a co‑accused’s acquittal. 

Now, when this was raised with the Court of Criminal Appeal in the same terms, their Honours found, as you will have seen from our outline of argument, that this reasoning was appropriate and that the argument which I have just put to your Honours, albeit without authority, was untenable.  Our point is twofold.  The first is that as a matter of principle this is impermissible, and the second point is that trials with co‑accuseds are common and this issue is apt to arise in the future and probably frequently in the future.

KEANE J:   Mr Reynolds, can I just ask you, before you go on to the second issue -at paragraph 33 on page 216 ‑ ‑ ‑

MR REYNOLDS:   I am sorry, 216?

KEANE J:   Page 216, paragraph 33.

MR REYNOLDS:   Your Honour, pardon me for a moment – yes, your Honour?

KEANE J:   It is recorded that:

Although not conceding that Mariam fired the pistol before the HEK group began an assault on the Honda . . . senior counsel accepted that the evidence established that he was the first to discharge a firearm.

MR REYNOLDS:   Yes, well that will deal with a portion, in a sense, of the sentencing judge’s inference of fact because that is to be found at paragraph 10 on page 197.  Although the point of principle I have just described still arises there is a difficulty with it being an appropriate vehicle as to a portion there what is said at paragraph 10, but not the whole.

GAGELER J:   What is left?

MR REYNOLDS:   This is at paragraph 10 on page 197 where Justice Keane is raising with me – this is at about line 18 – that one of the inferences I am talking about is:

that the jury found as a fact that Mahmoud Mariam was the first to discharge a firearm.

It is put against me, quite fairly, that that matter was conceded in the Court of Criminal Appeal.  I agree with that, but if one looks to the next three lines, there is a further aspect of the inferences that are being drawn from the acquittal.

GAGELER J:   The ambush point.

MR REYNOLDS:   Which is not touched by the relevant concession.

KEANE J:   But then is not the jury’s verdict convicting your client necessarily inconsistent with any suggestion of self‑defence?

MR REYNOLDS:   Well, the relevant fact we are talking about is the fact at lines 20 to 22 there on page 197, and looking at the jury’s verdict against my client, sure, that is consistent with him not acting in self‑defence, but one cannot extrapolate out any other findings of fact other than that.  In other words, one cannot say what other facts should be found as part of that.

GAGELER J:   Well, Mr Reynolds, the facts recorded as uncontested facts on page 217, in the first sentence at paragraph 34, are pretty strong contextual facts.

MR REYNOLDS:   At 34?

GAGELER J:   Paragraph 34.  He attended the scene armed with a loaded firearm, and on the signal, he walked towards the van and he fired the pistol no fewer than 10 times.

MR REYNOLDS:   I cannot get away from any of that, your Honour.  Those facts before the Court of Appeal were uncontested.  But it comes down to the finding that is recorded at page 197 at around line 20.  I can see what your Honour Justice Keane has said to me about the previous two lines, but my focus is on the subsequent three.  That is all it comes down to, and that is the only part of this finding of fact by the sentencing judge of which I make complaint referable to this principle which I have attempted to articulate.

GAGELER J:   Standing back just a little, all of this goes to the objective gravity of the offence.

MR REYNOLDS:   It does; I concede that.  The second point we raised is not a point of principle, but what we submit is a misapplication of well‑established law.  The relevant well‑established law is the application of the totality principle, and relevantly, where there has been a conviction for more than one offence, particularly when arising out of the same facts, the court has to assist the overall criminality in passing sentence, which involves, as your Honours know, an assessment as to whether the sentences should either be concurrent on the one hand or cumulative on the other.

We submit that it is clear, and we have quoted three passages at page 239 of the application book - one from Pearce v The Queen, which

your Honour the presiding Judge referred to on the last application.  This is about line 27, the words “and then”, that is, the sentencing judge fixes sentences for each offence and then considers questions of cumulation or concurrence.  Similar statements are made at line 33 by Justice Rothman and by Justice Handley at line 44.

Now it is, as I understand it, common ground between my learned friend, Mr Pickering, and I that this twofold process was in effect reversed here, that there was an assessment by the Court of Criminal Appeal, first of totality, and second of all an assessment as to what the individual sentences should be.  We say that it is simply not possible to look at the issue of totality in a vacuum, and that it is not possible to apply notions of concurrence or cumulation unless one has first allocated specific sentences for the other two offences.

KEANE J:   Mr Reynolds, as a matter of writing judgments, it is possible to think about things in a particular order and then, when one is putting it down, express them in a different order.  The mode of exposition does not necessarily suggest that one has departed from the path of orthodoxy.

MR REYNOLDS:   Yes.  I accept that as a matter of the behaviour of the human brain, and I accept what your Honour says about the way judges may approach things, and I accept that it would certainly be possible to have a form of express prolepsis, if I can put it that way, in a judgment.  The difficulty here is that when one looks at what the Court of Criminal Appeal – I would submit that it is not a fair inference to draw that there was proleptic reasoning of the kind that your Honour mentions. 

Now, that is, to an extent, impressionistic, but I would suggest that there is not any correlation between the reasoning in these various paragraphs that deals with one and then the other that would make what your Honour puts to me a fair inference in this particular case, although I accept that obviously sometimes judges do deal with matters in a judgment out of order or, put more strongly perhaps against me, have thought it through logically in the correct order but simply recorded in a different order.  We submit that that is not the case here.

They are the two points.  I accept the second one raises no point of principle; I accept that.  The first one does raise a small point of principle; as I said, one likely to recur in other cases because of the frequency of joint trials.  If the Court pleases, those are my submissions.

GAGELER J:   Thank you, Mr Reynolds.  We do not need to hear from you, Mr Pickering.

This case is not an appropriate vehicle for the agitation of the first ground of the application.  In our view, whatever the relevance of the acquittal of the co‑accused to the basis on which the appellant was sentenced, the conviction of the proposed appellant and with it the necessary rejection of the possibility that he was acting in self‑defence when he killed Mr Knight, the totality of the evidence given at trial and the concession made by his counsel before the sentencing judge and again before the Court of Criminal Appeal all combine to confirm that the sentencing judge was right to sentence the applicant on the basis that the applicant was the first to fire the weapon and also that he was part of a group which engaged in a form of ambush.

As to the second ground of the application, it is correctly conceded to involve no issue of principle.  The order in which the Court of Criminal Appeal expounded its reasons for upholding the appeal does not, in our view, clearly lead to an inference that there was a predetermination of the extent of accumulation.  In any event, there was no miscarriage of justice involved in the outcome of the sentencing process.  In those circumstances, the application will be refused.

The Court will now adjourn to 9.30 am on Tuesday, 16 December in Canberra. 

AT 12.26 PM THE MATTER WAS CONCLUDED