R v Azaddin
[1999] WASCA 265
•23 NOVEMBER 1999
AZADDIN -v- R [1999] WASCA 265
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 265 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:92/1998 | 5 OCTOBER1999 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 23/11/99 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | AZIZUL BIN AZADDIN THE QUEEN |
Catchwords: | Criminal law and procedure Wilful murder Defence of accident not left to jury Applicant convicted of wilful murder Whether verdict should be set aside Direction to jury on intention Whether reference to ordinary, likely or probable consequences of acts rendered direction defective Criminal law and procedure Application for extension of time for appeal against conviction -Three years and nine months out of time No manifest miscarriage of justice |
Legislation: | Criminal Code 1913, s 23 |
Case References: | Dietrich v The Queen (1992) 177 CLR 292 Gavin v The Queen (1991) 6 WAR 195 Hubert v The Queen (1993) 67 A Crim R 181 Mamote-Kulang v The Queen (1964) 111 CLR 62 Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 R v Callaghan [1942] St R Qd 40 R v Martyr [1962] Qd R 398 R v Van Den Bemd (1992) 70 A Crim R 489 R v Van Den Bemd (1994) 179 CLR 137 Schulze v The Queen, unreported; CCA SCt of WA; Library No 4342; 19 November 1981 The Queen v Falconer (1990) 171 CLR 30 Thomas v The Queen (1960) 102 CLR 584 Ward v R [1972] WAR 36 A Child v Andrews (1994) 12 WAR 552 Cramer v The Queen, unreported; CCA SCt of WA; Library No 980620; 28 October 1998 H G v R [1999] HCA 2; (1999) 73 ALJR 281 Holmes v The Queen, unreported; CCA SCt of WA; Library No 970457; 12 September 1997 R v Clinton [1993] 1 WLR 1181 R v Jemielita (1995) 81 A Crim R 409 Stephens v The Queen (1985) 156 CLR 664 Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : AZADDIN -v- R [1999] WASCA 265 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Wilful murder - Defence of accident not left to jury - Applicant convicted of wilful murder - Whether verdict should be set aside - Direction to jury on intention - Whether reference to ordinary, likely or probable consequences of acts rendered direction defective
Criminal law and procedure - Application for extension of time for appeal against conviction -Three years and nine months out of time - No manifest miscarriage of justice
Legislation:
Criminal Code 1913, s 23
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dietrich v The Queen (1992) 177 CLR 292
Gavin v The Queen (1991) 6 WAR 195
Hubert v The Queen (1993) 67 A Crim R 181
Mamote-Kulang v The Queen (1964) 111 CLR 62
Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985
R v Callaghan [1942] St R Qd 40
R v Martyr [1962] Qd R 398
R v Van Den Bemd (1992) 70 A Crim R 489
R v Van Den Bemd (1994) 179 CLR 137
Schulze v The Queen, unreported; CCA SCt of WA; Library No 4342; 19 November 1981
The Queen v Falconer (1990) 171 CLR 30
Thomas v The Queen (1960) 102 CLR 584
Ward v R [1972] WAR 36
Case(s) also cited:
A Child v Andrews (1994) 12 WAR 552
Cramer v The Queen, unreported; CCA SCt of WA; Library No 980620; 28 October 1998
H G v R [1999] HCA 2; (1999) 73 ALJR 281
(Page 3)
Holmes v The Queen, unreported; CCA SCt of WA; Library No 970457; 12 September 1997
R v Clinton [1993] 1 WLR 1181
R v Jemielita (1995) 81 A Crim R 409
Stephens v The Queen (1985) 156 CLR 664
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
(Page 4)
1 KENNEDY J: The applicant was presented in the Supreme Court on an indictment containing the single count that, on or about 17 August 1992, he wilfully murdered Siti Bahyah Binti Dato Mohd Yusoff ("the deceased"). The applicant pleaded not guilty. On 16 September 1994, a jury found him guilty as charged. On 13 December 1994, he was sentenced to strict security life imprisonment, with a minimum term being set at 20 years.
2 After his having been sentenced, the applicant consulted his solicitor regarding the prospects for a successful appeal. He was told that there would be only a very slim chance of success and, on that basis, the applicant did not instruct his solicitor to lodge an appeal. In January 1995, a fellow prisoner recommended another solicitor. An application by him for legal aid was refused on or about 8 February 1995, and the refusal of aid was confirmed by the Legal Aid Commission on 24 February 1995. The applicant then consulted the solicitor who had been recommended to him. He was told by this solicitor that he had a 90 per cent chance of winning an appeal. He had a number of discussions with that solicitor up until 17 July 1996, on which day he claimed that he was told that an appeal had been filed. He maintained that subsequent attempts to contact this solicitor proved unavailing. In January 1997, he therefore contacted the court to inquire about his appeal, only to be advised that no appeal had been instituted. Between January and September 1997, he said, he suffered from depression which had been brought on by the lack of progress with respect to his appeal. He was during this period under psychological treatment and he was consulting a psychiatrist on a regular basis. On 30 September 1997, the applicant once again applied for legal aid, but this application also was refused. He later instructed other solicitors to proceed with his appeal and to brief counsel.
3 An application for leave to appeal against his conviction was subsequently filed on 6 July 1998. The draft notice of appeal, prepared by the applicant's solicitors, relied upon two grounds, namely, the refusal of the learned trial Judge to leave the defence of accident to the jury, and what was claimed to be a misdirection in relation to intention, which suggested that the jury could take into account "likely consequences". By notice dated 7 September 1999, the applicant, then acting in person, applied to amend his proposed grounds of appeal by adding three further grounds, namely, that the jury were unlawfully misled into accepting a fabricated statement, that senior counsel for the applicant had failed to object to the admission of the fabricated statement and that he has been denied access to justice and to the Court as a result of his being denied legal aid funding. The notice set out the applicant's submissions in
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- support of his proposed grounds of appeal. He appeared in person on the hearing of his application by this Court.
4 The delay in filing the application in this matter has been gross. Delays of this magnitude require a cogent explanation before the Court will be prepared to extend time. The longer the delay, the more exceptional the circumstances must be shown to have been before an extension will be granted, unless it can be demonstrated that there will be a miscarriage of justice if an extension should not be granted - see Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985; Gavin v The Queen (1991) 6 WAR 195. The power to extend time should only be exercised upon facts being established which, in the judgment of the court, appear positively to call for its exercise. In my opinion, the applicant has failed to establish that there has been any miscarriage of justice and I would accordingly dismiss his application for an extension of time.
5 The Crown case at trial, in summary, was that the applicant was a close friend of a man named Mu 'Azam. Mu 'Azam and the deceased, who was his girlfriend, were experiencing some difficulties in their relationship. Amongst other causes of conflict, the deceased did not like Mu 'Azam spending as much time as he did with the applicant.
6 The deceased was last seen alive on 17 August 1992. On the afternoon or early evening of her disappearance, the applicant and Mu 'Azam had left her at her flat. There had been an argument between the deceased and Mu 'Azam about his going out with the applicant that evening. The applicant, who was driving Mu 'Azam's car, dropped him off at the motel at which he was living, having arranged to pick him up at 9.00 pm to take him to a strip club. The applicant then drove back to his flat. The deceased telephoned the applicant, seeking Mu 'Azam. She was sitting for an examination on the following day and she asked him to get her some food because she did not want to cook for herself. He proceeded to pick her up in Mu 'Azam's car to take her to a restaurant. He strangled her while they were alone together in the car. In the struggle which developed, the front passenger seat of the car was broken. This all occurred at some time after 6.00 pm. The applicant then left the deceased's body in bushland in Welshpool. He later drove on to pick up Mu 'Azam at his motel. The time was then between 9.30 and 10.00 pm. He explained to Mu 'Azam that he was late because he had been waiting for the friend who was to have paid the entry charges for admission to the strip club. The friend had not arrived and Mu 'Azam and the applicant decided to have dinner at Fast Eddy's in Perth. After dinner they returned
(Page 6)
- to the applicant's flat, where they spent the night. Early on the following morning, the applicant stole a shovel and he again borrowed Mu 'Azam's car, ostensibly to pick up his wife, who had spent the night at her parents' home. Before picking up his wife, however, the applicant drove to where the deceased's body had been left in Welshpool and buried it in a shallow grave.
7 The applicant gave the police and the deceased's relatives a number of stories as to how the deceased had died. He initially tried to implicate Mu 'Azam by saying that Mu 'Azam had strangled her, and that the applicant had merely helped to bury the body. Later, he claimed that they had both been in it together and that they had planned to kill the deceased because she was being too possessive and might be pregnant to Mu 'Azam. He told the police that Mu 'Azam had strangled the deceased in the car while he had held her hands down so that she could not struggle. Eventually, after the applicant had been told that the deceased's body had been found and he had been charged with her wilful murder, he told the police that he alone had killed her by strangling her in Mu 'Azam's car. He told them he had intended to kill her because he thought she was too possessive of Mu 'Azam and that he had decided to get rid of her. The last admissions were made on 13 August 1993. It was these admissions which the applicant claimed had been fabricated and to which he claimed his counsel had failed to object.
8 The defence case at the trial was that the applicant was a close friend of the deceased. He claimed he had seen that the deceased and Mu 'Azam were not getting on very well and he had tried to help them sort out their problems. On the evening of 17 August 1992, Mu 'Azam and the deceased had an argument. She later telephoned the applicant at his flat and asked him for some food, saying that she had something important to tell him. While the applicant was driving the deceased to a restaurant, she told him that she loved him. They decided to go to the applicant's flat. While they were there, they began kissing and touching one another. The deceased told the applicant that he should leave his wife. He became angry. When she made a further sexual approach to him, he slapped her. She started shouting. He held the sides of her neck with both hands and told her to stop shouting. He pushed her against a wall. He held her by the neck for about five to ten seconds until she went limp and fell to the ground. He tried to revive her; but he soon realised that she was dead. He denied having tried to kill or to hurt her. Prior to this event, the deceased had only been clothed from the waist down. He now removed her jeans, tied her hands and feet and put a belt around her neck, in order, he said, to make it look like a robbery. He then drove to Welshpool with the body of
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- the deceased and left it in bushland. He later met Mu 'Azam and they went out together. The next morning the applicant, with a stolen shovel, buried the body. He claimed that every explanation he had given to the police had been untrue, asserting that he had lied to the police when he said he had strangled the deceased because he did not want anyone to know that he had almost committed adultery with her. He relied on the testimony of a cardiologist who had said in his evidence that the deceased may have died from a carotid sinus reflex which can stop a person's heart, even if light pressure is applied to the neck. This, he said, can occur in extremely rare circumstances where the person has hypersensitive nerves in the relevant area of the neck. This evidence formed the basis for the argument that the death of the deceased had been accidental.
9 The first ground of appeal relates to the refusal of the trial Judge to leave the defence of accident to the jury.
10 Section 23 of the Criminal Code relevantly provides as follows:
"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."
11 It was argued at the trial that, having regard to the evidence before the jury, the learned trial Judge should direct them with regard to the possible application of the second limb of s 23. The learned trial Judge, however, held that he was bound by the decisions of this Court in Ward v R [1972] WAR 36, a case of manslaughter, and in Hubert v The Queen (1993) 67 A Crim R 181, a case of wilful murder, in which it had been held that, where the relevant "event" occurs as the direct and immediate result of the "act", the second limb of s 23 can have no application. In Ward's case, it had been held that where, following on an act intended to cause some bodily harm to another, some unexpected occurrence supervenes, which is the immediate cause of injury to the person struck and from which he dies, then if that occurrence was not intended or foreseen and was unlikely, the death of such person would be an accident within the meaning of s 23 (at 46 - 47).
12 In Ward's case, the Court of Criminal Appeal followed the Queensland decisions in R v Callaghan [1942] St R Qd 40 and R v Martyr [1962] Qd R 398. Callaghan's case concerned a wilful murder. The trial Judge had directed the jury that a defence of accident was not
(Page 8)
- open, as a blow deliberately aimed, which had the effect, although not the intended effect, that the other person was killed, is not an accident within the meaning of s 23 of the Criminal Code. Webb CJ, at 44, said:
"I am not prepared to differ from the learned trial Judge as to the effect of s 23; but, in any case, I cannot see that any miscarriage of justice arose by reason of his direction. I think there was no miscarriage of justice warranting a new trial, as it was inevitable that the jury's verdict would have been the same, even if he had directed that the defence of accident was open - Woolmington v Director of Public Prosecutions ([1935] AC 462, at pp 482-3) - seeing that in finding wilful murder they were satisfied that the applicant not merely killed the deceased, but did so intending to kill him. A direction that the defence of accident was open could not have changed that belief; it would have had no bearing on any question of credibility; it could have had no tendency to negative intention to kill."
14 Philp J, at 51, said in relation to the trial Judge's direction:
"If A strikes B intending to kill him, his death under the circumstances supposed is not an event which occurs by accident - it is an event which occurs by design.
So also I agree with his Honour's directions that if the blow was intended to do grievous bodily harm and it did in fact kill, it would be murder.
But I do not agree with his Honour that if the blow was not intended to do grievous bodily harm or to kill, but was intended as a blow, and in the result the man at whom the blow was directed is in fact killed, the killing could not be an accident within the meaning of the Code. It is plain from the context that his Honour was postulating a deliberate blow with death supervening by accident thereon. In my view, under s 23, the killing under those circumstances would not be manslaughter …."
(Page 9)
- At 52, he added:
"Even assuming that the jury considered that the prisoner's statement that the fatal blow had been struck following the quarrel about the truck, the Judge's summing up on that topic could leave them in no doubt that they could find a verdict of wilful murder only if the blow was struck with intent to kill."
16 In R v Van Den Bemd (1992) 70 A Crim R 489, which was another case of manslaughter, the Court of Appeal in Queensland declined to follow Martyr's case, holding that the test of criminal responsibility under s 23 is not whether the death is an immediate and direct consequence of a willed act, but whether death was such an unlikely consequence of that act that an ordinary person in the accused's position could not reasonably have foreseen it. At 493, the court said:
"In the face of the reasoning of the High Court in Kaporonovski, it is plain that the decision of Martyr is no longer good authority. The test of criminal responsibility under s 23 is not whether the death is an "immediate and direct" consequence of a willed act of the accused, but whether death was such an unlikely consequence of that act that an ordinary person could not reasonably have foreseen it. In the present context that means that the relevant question was whether the jury was satisfied beyond a reasonable doubt that Bankier's was not such an unlikely consequence of the punches delivered by the accused that it could not have been foreseen by an ordinary person in the position of the accused."
17 By a majority, the High Court (R v Van Den Bemd (1994) 179 CLR 137) rejected the Crown's application for special leave to appeal from this decision. In doing so, the majority (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) said, at 139:
"The words of the section [s 23] are inherently susceptible of bearing the meaning placed upon them by the Court of Appeal of Queensland. The interpretation given to the section is one which favours the individual and reflects accepted notions of
(Page 10)
- culpability and responsibility for criminal conduct. Moreover, it is an interpretation which derives support from comments made in some judgments of this court, particularly Gibbs J (with whom Stephen J agreed) in Kaporonovski v The Queen (1973) 133 CLR 209."
18 They concluded:
"In these circumstances, the case is not one in which it would be appropriate to grant special leave to enable the Crown to challenge an order of a State Court of Appeal quashing a conviction and ordering that there be a new trial. The consequence is that the interpretation placed by the Court of Appeal on s 23 remains unaffected in that State."
- Brennan and McHugh JJ dissented, each of them following the earlier decision of the High Court in Mamote-Kulang v The Queen (1964) 111 CLR 62 - see at 146 - 149, 151 - 153. It is also to be noted that an application for special leave by Hubert had previously been refused. As to the significance of a refusal to grant special leave, see Sir Anthony Mason, "The Use and Abuse of Precedent" (1988) 4 Aust Bar Rev 93.
19 In my view, it is unnecessary to review further the conflicting authorities dealing with the proper construction of s 23 for the reason that, in convicting the applicant, the jury must have concluded that he intended to kill the deceased. To say of a death which was directly caused by a willed act of the accused done with the intention of killing the deceased that it was the result of an accident is self-contradictory. Support for this view is to be found in the observation by Mason CJ, Brennan and McHugh JJ in The Queen v Falconer (1990) 171 CLR 30, at 38:
"The first limb of s 23 requires the act to be willed; the second limb relates to events consequent upon the act : it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen : see Vallance (1961) 108 CLR 56; Mamote-Kulang of Tamagot (1964) 111 CLR 62."
20 Moreover, in Hubert's case, Murray J, with whom Pidgeon and Franklyn JJ agreed, said, at 197:
"In leaving these grounds I should recall that the applicant was of course convicted of wilful murder. If there was no error in
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- the directions by which the law as to the intention to cause the death of the deceased was explained to the jury, then it would seem difficult to suppose that in any event the jury have not necessarily negated the application of s 23. It would seem difficult to describe as an event which occurred by accident, because it was not foreseen or reasonably foreseeable, a death which was intended. That is why, I think, the test of accident to which I have referred above is qualified by excluding a death which was intended : see particularly the judgment of Taylor and Owen JJ in Mamote-Kulang (1964) 111 CLR 62 at 67 - 68."
21 In my opinion, therefore, the defence of accident was not available to the applicant on the count of wilful murder if the jury found that he had at the relevant time the intention to kill the deceased. If it be the case that the learned trial Judge should have left to the jury the defence of accident in relation to the alternative verdicts of murder and manslaughter, this would not, in my opinion, have affected the verdict of wilful murder. The position in this respect was explained by Burt CJ, with whom the other members of the court agreed, in Schulze v The Queen, unreported; CCA SCt of WA; Library No 4342; 19 November 1981, at 3:
"It must surely be a rare case in which the conviction of a person charged with murder following upon a direction which, as is here conceded, was in all respects correct can be quashed upon the ground that the trial Judge's direction as to manslaughter reveals some error. No doubt there could be such a case if the error in the direction as to manslaughter could be seen in some way to have contaminated what would otherwise have been a correct direction as to murder. But this is not said to have been such a case. It could also arise if, for example, the trial Judge were to direct the jury that a verdict of manslaughter was a verdict which was not open to them. But, again, this is not such a case."
22 In this case, the failure to give a direction in relation to accident with respect to the alternative verdicts could not have contaminated his Honour's directions on the count of wilful murder. On the basis of the foregoing, ground 1 must fail.
23 The second ground of appeal asserts that the learned trial Judge erred in his direction to the jury regarding the element of intention when he said:
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- "You can't operate on any principle that a person intends the ordinary, likely or probable consequences of his or her acts. Likely consequences can throw light upon an intention, perhaps considerable light, but there is no rule of law, or logic, or practice that is necessarily the case and it is not an infallible guide. It is only one of the matters you may wish to consider if you wish to. It is essential that you appreciate that before you can convict the accused of wilful murder or murder you must find that he himself had the relevant intention and that intention is to be found, as I have said, by way of inference from all the circumstances of the case. All the circumstances must be considered, including in particular the circumstances personal to him."
24 The learned trial Judge also instructed the jury:
"Thirdly, I come to what is really the central issue of this case. The issue of evidence is credibility and believability. The issue of law is whether the Crown has proved beyond reasonable doubt that the death of [the deceased] was one which occurred not only by the actions of the accused, but at a time when he had the intention to kill her. It is the presence of that particular intent which makes the additional element of the crime of wilful murder. If the accused unlawfully killed [the deceased] intending to cause her death, then he is guilty of wilful murder."
25 Later, he said:
"I want to spend a moment on the question of intention. Intention is the aspect of critical importance in this case. Intention to kill or to cause grievous bodily harm is a fact, an element of the crime, which the Crown must prove beyond reasonable doubt. There is no onus on the defence to negative a particular intention. The burden rests on the Crown to prove that necessary element. Intention resides in the mind of the person doing the act. It can't be proved, as many other facts are proved, by producing it to you in court; putting an exhibit stamp on it. It is not a thing that can be produced to you. You can only prove an intention by inference from the act done by the accused; from those acts which you find him to have done or from what the accused may himself have said concerning intention with which he did particular relevant acts.
(Page 13)
- In his evidence, the accused denied having any intention to kill [the deceased]. You must weigh his evidence and his statements along with whatever inference as to his intention can be drawn from his conduct and from other relevant facts. Irrespective of what the accused has said to the police or in this Court you may be able to conclude, from all of the evidence, that beyond reasonable doubt he had the relevant intention at the time of his act in relation to the deceased. That is for you to determine."
- He then went on to discuss the relevance of the consumption of drugs in relation to the formation of an intention.
26 The jury, in my view, could not have been misled by his Honour's direction on intention, which was quite clear. They must have understood that the responsibility of deciding whether the inference of an intention to kill the deceased should be drawn rested entirely with them, and that no presumption of law existed to relieve them of it - see Thomas v The Queen (1960) 102 CLR 584, at 596. They would also have understood that, before they could convict the applicant of wilful murder, they had to be satisfied beyond reasonable doubt that he had the intention of killing the deceased at the time he had his hands on her neck.
27 In my opinion, ground 2 is without substance.
28 Grounds 3 and 4 contend that the jury was unlawfully misled into accepting a fabricated statement dated 13 August 1993, and that the failure of senior counsel to object to the admission of that evidence had caused a substantial miscarriage of justice.
29 There were in fact two statements to the like effect made by the applicant on 13 August 1993. The critical admissions contained in the applicant's statements were in substance that he alone had strangled the deceased, that Mu 'Azam had nothing to do with it and that the strangling had taken place in Mu 'Azam's car and not at the applicant's flat as he had previously suggested. The applicant based his argument upon the alleged absence of any record of Detective Andrews having visited him in the Canning Vale Remand Centre between 30 March and 4 September 1993. On the evidence of Detective Andrews, however, the relevant admissions had been made initially at the Central Perth Lockup in the presence of Detective Sergeant Davis, just after the applicant had been told that he was to be charged with wilful murder, and subsequently at the Canning Vale Remand Centre in the presence of Detective Gardin.
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30 At the trial, there was no contest regarding what the applicant had said to the detectives on 13 August 1993. The applicant was cross-examined as to the events on that day. Asked whether the police had come to see him at Canning Vale Remand Centre, his response was that he could not recall. He admitted, however, having been interviewed by Detective Andrews in the presence of Detective Gardin, the latter being the detective who was said by Detective Andrews to have accompanied him to the Canning Vale Remand Centre. Detective Gardin and Detective Sergeant Davis were present in court by leave of counsel for the applicant while Detective Andrews was giving his evidence as to the interview, in which, on Detective Andrews' evidence, he confessed to having himself strangled the deceased, with no involvement by Mu 'Azam. The applicant had told him that the struggle had gone on for a couple of minutes and that, in the course of it, the front seat of the car had been broken. There was no cross-examination of Detective Andrews and, as a result, neither Detective Gardin nor Detective Sergeant Davis was called to give evidence. There was no challenge by the defence to the evidence that each of the four statements was made to the police by the accused, including those on 13 August upon which the Crown heavily relied. The defence case was that all of those statements contained lies and that the only truthful account was that which he had given in court. That is to say, the argument was not as to whether the statements were made, but only as to whether what was said was true.
31 There is no substance in the applicant's complaint regarding his senior counsel's not cross-examining Detective Andrews, which resulted in Detective Gardin and Detective Sergeant Davies not being called by the Crown to give evidence. The case was being fought on a different basis, which did not involve any challenge to the police evidence. Nor is there any substance in the complaint regarding the failure of senior counsel to require the production of statements or notes for the morning and afternoon interviews on 13 August 1993. To have done so would have opened up the possibility of the statements being required by the prosecution to be tendered as exhibits, with the strong possibility of the applicant's case being adversely affected. Once again, to have demanded the documents would have been inconsistent with the basis on which the applicant's case was being fought at trial.
32 A further complaint is made that the statements of 13 August 1993 should now be considered as inadmissible. The basis of this complaint is unsound. Section 570D of the Criminal Code, which makes an accused's admissions in serious cases inadmissible unless videotaped, was introduced by the Acts Amendment (Jurisdiction and Criminal Procedure)
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Act 1992. The amendments to the Code incorporating s 570D, however, were only proclaimed to come into force on 4 November 1996, more than two years after the trial had been held (Government Gazette, 25 October 1996, p 5631). They did not result in the statements being rendered inadmissible.
33 The proposed grounds 3 and 4 are without merit.
34 The fifth ground relates to the appliciant's claimed entitlement to "legal aid funding to facilitate counsel". Applications for legal aid funding have been refused. In this regard it must be stressed that the applicant had the benefit of senior counsel representing him at his trial and his claim now is that he is entitled to funding for an appeal.
35 The applicant seeks to draw support from Article 14(3) and (5) of the International Covenant on Civil and Political Rights. As Mason CJ and McHugh J indicated in Dietrich v The Queen (1992) 177 CLR 292, at 304 - 307, this Covenant does not form part of the domestic law of Australia and it will not do so "unless and until specific legislation is passed implementing the provisions". No such legislation has to date been passed and the Covenant has no binding force in Australia. In any event, Article 14(3) relates only to trials and has nothing to say in relation to appeals. Article 14(5) relates to appeals; but, in contrast to Article 14(3), it says nothing as to any entitlement to counsel of choice or as to any right to legal assistance without cost to a person appealing against his or her conviction. It merely relates to the right to have his conviction or sentence reviewed by a higher tribunal. The applicant also referred to Article 14(16). There is no such provision in the Covenant and I have not been able to identify any provision to which the applicant might have intended to refer.
36 The applicant did not develop his claim that he came before the Court of Criminal Appeal in circumstances that clearly displayed unfairness, bias and injustice. That claim cannot be sustained on the basis of any of the material before us.
37 In my opinion, there has been no miscarriage of justice in this matter and, as I have indicated, I would dismiss the application for an extension of time for instituting the appeal.
38 PIDGEON J: I agree with the reasons of Kennedy J. I would refuse an extension of time.
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39 MURRAY J: I respectfully agree with Kennedy J that the extension of time sought should be refused. I have nothing to add to his Honour's reasons for that conclusion.
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