Meko v The Queen

[2006] HCATrans 578

[2006] HCATrans 578

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 2005

B e t w e e n -

TESFAYE TEKA MEKO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 2006, AT 4.14 PM

Copyright in the High Court of Australia

MR A.C. McINTOSH:   I appear for the applicant.  (instructed by David Manera)

MR K.P. BATES:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Western Australia))

GUMMOW J:   Yes, Mr McIntosh.

MR McINTOSH:   Your Honour, this is actually an application for an adjournment which is unopposed.  I am in a position to argue the matter if called upon.

GUMMOW J:   It seems to me whether we should grant the adjournment does involve some consideration of the merits ‑ ‑ ‑

MR McINTOSH:   Yes, it does.

GUMMOW J:   - - - rather than bring you back here twice or encourage you to come back twice.

MR McINTOSH:   Yes.

KIRBY J:   We hate to inconvenience you, Mr McIntosh.

MR McINTOSH:   I appreciate that.

GUMMOW J:   What would the merits of the appeal be?

MR McINTOSH:   Well, there are two points I want to raise.  The issue in this case is the…..view, the wrong direction given to the jury.  The direction to the jury was that evidence of lies refers to one issue and that is wilful murder.  The emphasis goes to only one issue, wilful murder.  We say that it goes to other issues.

KIRBY J:   I am not quite hearing you, could you come a little bit closer to the centre and share your voice with me.

MR McINTOSH:   The issue in this matter is a direction to the jury.  The direction was that lies in relation to the knife attack goes to one issue, namely, wilful murder in relation to the axe attack.  As you recall, there was an axe attack and a knife attack.  The axe was the cause of death.  The knife was not the cause of death.  The knife was inserted into the victim when the victim was nearly dead or dead.

KIRBY J:   But your client said that he did not take the knife into the room.  “Never, never, never”, he said.  He never took it into the room.  He left it outside.

MR McINTOSH:   And that is a lie.

KIRBY J:   Yes.

MR McINTOSH:   The question is, what use can that lie perform?  There was the Edwards direction given, but the Court of Appeal erred and said that it only goes to wilful murder.  Today I want to present to this Court two scenarios where that direction has to be wrong.  The first scenario is this.  Supposing the applicant could rely upon a defence of provocation, which was a live issue, in relation to the axe attack.  After the axe attack his passion cooled.  He then, quite plausibly decided to make a cool, calm, collected attack with the knife, a callous attack with the knife.  The knife attack did not cause the death.  The reason why he lied is because he did not wish to admit to the fact that he used a knife in a cold callous way, so the evidence of the lie goes to one issue and that is the knife attack.  So that is the first scenario in which the direction has to be wrong.  That is a reasonable scenario to put to the jury that the reason why he lied does not go to the axe attack, it goes to the knife attack.

KIRBY J:   This is a different point to the point argued in the Court of Criminal Appeal or the Court of Appeal, is it not?

MR McINTOSH:   It is the same point.  The Court of Appeal held that in the second ground of appeal that the evidence of lies can only go to one element, wilful murder.  I say it can go to the knife attack.  The knife attack did not result in death, so he lied because he did not want to say the truth which was, “I did a knife attack coldly”.

HEYDON J:   That scenario has nothing to do with any factual possibility in the case, does it?

MR McINTOSH:   Yes, it does.  Provocation was open.

HEYDON J:   But it has nothing to do with your client’s evidence.

MR McINTOSH:   It gives a reason why he could have lied.  Even if the Court of Appeal was saying that the only inference that can be drawn from that lie is wilful murder, no.  The other inference is it goes to the knife attack.  It is clearly wrong.  The second scenario which illustrates the Court of Appeal was, in our view, wrong is that in the heat of passion he used the axe, that is, provocation is clearly open, and he then in the same heat of passion used a knife.

Now, that would indicate he lied about the knife, that it is consistent with provocation in relation to the axe attack.  There was no provocation for the knife attack because the victim was dead or near dead, so at law provocation is not relevant, but the heat of passion with the knife attack could be ongoing with the axe attack.  That is consistent with manslaughter and not wilful murder.  Provocation or heat of passion applies to the knife attack and axe attack.

So they are the two factual scenarios which indicate that the jury was misled by thinking that evidence of lies could only go to wilful murder.  We say it possibly goes to knife attack, we say it also goes to manslaughter.  In essence, the probative value of the lies is destroyed by other scenarios.  So the correct direction to the jury would be that the lies have no probative value in relation to wilful murder.  That is the correct, in our view, direction that should have been given to the jury.  They are the two factual scenarios I wish to take you to and I advance the case no further other than from the submissions before the Court.

GUMMOW J:   Yes, thank you, Mr McIntosh.

MR McINTOSH:   Thank you.

GUMMOW J:   Yes, Mr Bates.

MR BATES:   May it please the Court.  Whilst generally evidence of post‑defence conduct said to display a consciousness of guilt may not found a conclusion that the accused was guilty of one crime rather than another, in the instant case, in our submission, clearly it did.  On the Crown case the deceased was either dead or dying from the head injuries caused by the applicant wielding a tomahawk when he stabbed the deceased in the groin.  The applicant did not dispute at trial that he killed the deceased and, in our submission, the Court of Criminal Appeal, as it then was, correctly concluded that on the specific and unusual facts of this case the post‑defence conduct could display a consciousness of guilt of one offence and one offence only, namely that of wilful murder. 

In our submission, the factual scenarios raised by my learned friend are dealt with by the trial judge in his direction when he referred to the fact typically given in a lies direction that there may be other reasons for telling a lie apart from a consciousness of guilt on wilful murder.

So, in our submission, as part of a lies direction the learned trial judge directed the jury that a person may be telling a lie for a reason apart from a realisation of guilt, in this case wilful murder.  So the issues raised by my learned friend were factual matters which could have been raised and were encompassed in the traditional lies direction given by the learned trial judge at trial.  But in our submission, on the particular facts of this case, it was open to give a lies direction that went to one issue and one issue only, namely, wilful murder. 

The Crown suggested that the additional violation of a woman already dead or clearly dying suggested vindictiveness and malice in the applicant’s attack on the deceased which went directly to an intention to kill and in the specific circumstances of this case the lie was logically only relevant to a consciousness of guilt of wilful murder.  In our submission, it was a lie about conduct carried out against a person visibly dying or dead and it could not be explained other than as a level of hostility and malice at the time of the wrongdoing that was commensurate only with an intention to kill.  So our submission is that on the circumstances of this case, circumstances that are rare, the specific lie only went to an intention to kill.

In our submission, the Court of Criminal Appeal correctly concluded that, as so much will depend on the circumstances of the particular case and the nature and significance of the particular lie in relation to the offence adopted at trial, it would be unwise to lay down any rules of general application.  In our submission, having regard to the circumstances of this case, there was no error in the way the learned trial judge directed the jury as he did in this case that the alleged lies only revealed a consciousness of guilt of wilful murder. 

In our submission, this particular case can be reconciled with the Victorian decision of the Court of Appeal in Heyes where it was recognised that whilst usually the conduct alleged to exhibit consciousness of guilt will be equivocal, pointing equally to a consciousness of guilt of, say, murder or manslaughter, it is possible in a particular case that the evidence may not be equivocal.  In our submission, if the evidence bespeaks of guilt of one offence rather than the other which, it is admittedly an unusual circumstance, it may be led as relevant to that issue and, in our submission, this was such a case.  They are the submissions we would make in response.

KIRBY J:   Could I just ask you, Mr Bates, is it your understanding that all of the issues which the applicant would have wished to raise have now been raised?  I should perhaps have asked Mr McIntosh that, but the matter was originally for an application for adjournment.  As I understand it, the whole issue that the applicant wished to raise has now been raised and you have answered it?

MR BATES:   That is correct, your Honour, yes.

KIRBY J:   Is that the case, Mr McIntosh?

MR McINTOSH:   Yes.

GUMMOW J:   Do you have anything in reply, Mr McIntosh?

MR McINTOSH:   Just a very short point.  The thrust of my argument is that the knife attack and axe attack can be viewed separately and distinctly.  The lies can go to the axe attack, but equally it can go to the knife attack and viewed that way the direction as a matter of logic has to be wrong.

GUMMOW J:   Thank you.

MR McINTOSH:   Thank you.

KIRBY J:   Mr McIntosh, may I just ask you, there were other points raised in the written submissions for the applicant.  They were apparently prepared before you came into the matter?

MR McINTOSH:   Yes.

KIRBY J:   They were presented by somebody who stated that he or she was not a lawyer nor a person within the prison, but somebody who had prepared the document.  They raised a number of issues, all of which we, of course, have considered, some of which would not really be available being matters that would raise issues of new evidence which is not admissible in this Court in an appeal.  Were you urging any of those matters upon the Court?

MR McINTOSH:   No, I do not believe in fairness I could advance the arguments that were prepared by the applicant in person or with assistance.

GUMMOW J:   We are much dependent on and grateful for your assistance as counsel.  We understand the circumstances you come here.  But it is important that we appreciate what you have just said to Justice Kirby, I think.

MR McINTOSH:   Yes, I cannot advance it any further, your Honour.

GUMMOW J:   This application began this afternoon as one for the adjournment of the application for special leave to appeal.  However, in order to understand that application, counsel accepted that he should argue the matters that he would wish to put forward on behalf of the applicant on the adjourned hearing.  Counsel agreed that he was able to do so and proceeded to argue the substance.  This argument concerned scenarios which he claimed were relevant to guilt of the crime of wilful murder provided for in the Criminal Code (WA).

We have considered counsel’s arguments and also the written materials which were provided, albeit prepared without legal assistance.  We are not convinced that the arguments advanced by counsel today which are somewhat different from what was argued in the Court of Criminal Appeal of Western Australia would enjoy reasonable prospects of success.  We are not convinced that there has been a miscarriage of justice in this case.  Accordingly, special leave is refused.

We will take a short adjournment.

AT 4.29 PM THE MATTER WAS CONCLUDED