R v Mohammadi
[2011] SASCFC 154
•16 December 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOHAMMADI
[2011] SASCFC 154
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
16 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
Appellant convicted by jury verdict of one count each of aggravated recklessly causing serious harm and threatening a person involved in a criminal investigation –appellant called alibi evidence at trial - appellant alleges trial Judge interfered with conduct of trial such that the defendant did not receive a fair trial – whether trial Judge gave sufficient directions to jury regarding alibi - whether level of judicial involvement in the trial amounted to material interference giving rise to an unfair trial - whether errors in summing up either separately or collectively gave rise to any risk of a miscarriage of justice.
Held: Appeal allowed – verdicts of guilty are set aside and matter remitted for retrial.
David J: Judge did not adequately direct the jury with respect to the defence case insofar as an alibi was raised – the Judge failed to direct the jury that even if the alibi evidence was rejected the prosecution still bore the onus of proving its case - trial Judge's interventions during the evidence of the alibi witness tended to indicate the Judge's view that the evidence was not to be believed - a combination of those factors led to an unfair trial in relation to the count of aggravated recklessly causing serious harm - unfairness flows through to the count of threatening a person involved in a criminal investigation.
Gray and Sulan JJ: the interventions of the trial Judge gave rise to a real risk that a miscarriage of justice may have occurred – errors in the Judge’s interventions compounded the risk of a miscarriage of justice.
R v Macbeth [2008] SASC 71; R v Esposito (1998) 45 NSWLR 442, discussed.
Ratten v The Queen (1974) 131 CLR 510; R v Mawson [1967] VR 205; Galea v Galea (1990) 19 NSWLR 263; E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146; R v Yuill (1994) 34 NSWLR 179; Whitehorn v The Queen (1983) 152 CLR 657; R v R (1989) 18 NSWLR 74, considered.
R v MOHAMMADI
[2011] SASCFC 154Court of Criminal Appeal Gray, Sulan and David JJ
GRAY and SULAN JJ.
This is an appeal by Morteza Mohammadi against conviction.
The defendant was convicted following a trial in the District Court by jury verdict of the offences of aggravated recklessly causing serious harm and of threatening a person involved in a criminal investigation. He was acquitted on a further charge of theft. The incidents giving rise to the offences occurred on 30 and 31 May 2009.
The Trial
It was the prosecution case that the complainant and the defendant were both members of the South Australian Afghan community. They had met from time to time at social functions over the previous two years. On the evening of 30 May 2009, the complainant was driving to his home at Ingle Farm. He had finished a game of volleyball and was leaving the school grounds of Enfield High School. As he departed he saw the defendant travelling in the passenger seat of a small motor vehicle.
The complainant stopped for a red traffic light at the intersection of Grand Junction and Main North Roads. While stationary, the defendant approached the front passenger side of the complainant’s vehicle and requested a lift to Pooraka. The complainant agreed. As they were travelling on Main North Road, the defendant requested that the complainant pull over and stop as he claimed that he wanted to relieve himself. The vehicle stopped, the defendant alighted and walked towards a tree leaving the passenger door open. At this time another vehicle stopped behind the complainant’s vehicle. This was the same vehicle in which the complainant had seen the defendant earlier. A man came to the driver’s side of the complainant’s vehicle. By this time, the defendant had returned. He ordered the complainant out of the vehicle to talk to the other man. At this point the defendant entered the vehicle, sat in the passenger seat and began punching the complainant to the left side of his face. This continued for some time. The other man opened the driver’s door and started punching the complainant about the face, head, shoulder and neck. The assailants suggested that they would kill the complainant.
The complainant fell from the vehicle and onto his knees at which point both assailants were punching and kicking him. Finally, he escaped by running across Main North Road. After some time he returned to his vehicle. The other vehicle had left. The passenger door was open, the driver’s door was closed. The complainant could not find the keys to his vehicle. His wallet, which had been in the glove box, was on the front passenger seat of the car with $350 missing from inside it.
The complainant rang the police and a friend, Shokrullah Mohammadi. An ambulance arrived and took the complainant to the Royal Adelaide Hospital. He suffered facial fractures which required surgery.
On 31 May 2009, the defendant visited the complainant in hospital. Shokrullah Mohammadi and another man, Amin, were visiting at the same time. It was the prosecution case that on this occasion the defendant apologised saying that the other man had had a gun, and that he had wanted to kill the complainant but the defendant did not let him do so. The defendant added “life will become difficult for you if you go to the police, you might get killed”. This statement was the subject of the charge of threatening a person involved in a criminal investigation.
The defendant denied any involvement in either the assault on the complainant or the theft of his property. His case was that he was at a friend’s house on the evening of 30 May 2009 at Hutt Street, Adelaide. He claimed to have an alibi. His friend was known by the name “Seventeen”. The defendant claimed to have been at Seventeen’s house with his girlfriend Shannon Mackereth and another friend, Seyyed Ali Mousavi. According to the defendant, he left the house with his girlfriend and friend to drink at a bar in Hindley Street until about midnight.
It was the defence case that the defendant visited the complainant in hospital as he had heard from another friend of the assault. The defendant denied threatening the complainant and denied making any admission either directly or indirectly about being involved in any assault.
The defendant gave evidence at the trial. Mackereth gave evidence in the course of which she provided an alibi for the defendant. Mousavi was also called to give evidence in relation to the alibi. However, when he was called, he did not recall his movements on 30 May 2009.
The Appeal
A number of complaints were advanced on the hearing of the appeal. The Director of Public Prosecutions conceded that there were errors made by the Judge in the summing up. It was submitted, however, that none of the errors either separately or collectively gave rise to any risk of a miscarriage of justice.
A further complaint was made that the trial Judge interfered with the conduct of the trial to such an extent that the defendant did not receive a fair trial.
It is convenient to first address the conceded errors in the summing up.
As discussed above, it was the prosecution case that the defendant had threatened the complainant while he was in hospital on 31 May 2009. The complainant did not give any evidence of the threat. The defendant denied having made any threat. The Director conceded that reference to the fact that the complainant did not give evidence of a threat should have been made during the summing up. It was an important inconsistency directly relevant to the charge concerning the threat. The Director contended that this of itself would not in the circumstances have led to a miscarriage of justice. In our view, this was a material omission. In our view it is an error that should be considered in the context of the other admitted and established errors.
It was the defence case that the complainant had falsely implicated the defendant to support a claim that the complainant was making for criminal injuries compensation. This was put to the complainant in cross-examination. The complainant denied that he falsely implicated the defendant to aid a compensation claim. The complainant responded that he could not recall completing any relevant forms but that he may have done so. During closing addresses, counsel for the defendant submitted that the complainant had a motive to lie, namely his criminal injuries compensation claim.
The Judge directed the jury on this issue as follows:
You will also take into account that [the defendant’s counsel] did not put to [the complainant] that his motive to lie was to get criminal injuries compensation. Accordingly, [the complainant] has not had an opportunity to comment on that so you do not know what he would have said about that.
It was conceded by the Director that the direction was incorrect. It was the Director’s submission, however, that no prejudice arose. The Director pointed out that the complainant had named the defendant as his attacker immediately following the incident on 30 May 2009 both to a friend and to the police. The Director went so far as to suggest that the defendant’s “theory” involved a clear allegation of invention by the complainant at a time after which he had already named the defendant. It was suggested that, in these circumstances, the defence contention was untenable and should be disregarded altogether.
The difficulty with the Director’s submission is that the members of the jury were directed in error and in circumstances in which they may have considered the Judge to have been unduly critical of defence counsel. This observation has some relevance when considering the defence’s wider complaint of extensive and undue judicial interference.
Evidence of a photographic identification procedure was led by the Crown. This was not as a result of any question about identification. The complainant had identified the defendant as his attacker. The defendant was known to him. However, during cross-examination defence counsel cross-examined the complainant about his meeting with police on the day of the identification procedure. The purpose of the cross-examination was to lay a foundation to criticise the complainant for not raising particular matters that day.
The direction given by the Judge on this topic did not address the reason for the tender of the evidence. The Judge’s direction only addressed the topic of whether during the identification procedure the complainant had accurately identified the defendant as his assailant. The Judge gave an identification warning. It was unnecessary. It could have resulted in confusing the jury. It may well have deflected the jury from considering the evidence for its correct purpose, that is, to explain why the police were talking to the complainant, and the issue that they were discussing with him. Shortly put, the direction missed the point.
The defendant complained that although the Judge had directed the jury that the use of an interpreter was a relevant matter when considering and evaluating the evidence, the Judge’s comment was only directed to the complainant and not to the defendant. It was said that the problem was compounded as the jury were directed that the evidence of the defendant was to be evaluated in the same manner as any other witness. The Director conceded that the jury may have misunderstood the Judge’s direction and as a result failed to have regard to this consideration when evaluating the defendant’s evidence. The Director submitted, however, that this error did not give rise to a miscarriage of justice. Again, it is our view that this error should be considered together with the other admitted and established errors.
We now turn to discuss the allegation concerning undue interference in the trial process by the Judge.
The defendant relied on the cumulative effect of the interventions when submitting that the Judge became so heavily involved in the taking of evidence as to go well beyond the proper role of the Judge. It was said that the interruptions to the questioning of defence counsel when leading, cross-examining and re‑examining impacted unfairly on the defence case. It was submitted that these matters together with other interchanges with defence counsel would have undermined defence counsel in the eyes of the jury.
The Director accepted that there had been an unusual level of judicial involvement in the trial but contended that the involvement did not amount to a material interference and in particular did not give rise to an unfair trial.
Many authorities have discussed the approach taken to suggested undue interference by judges in the course of criminal trials. A number of those observations can be conveniently summarised as follows:
-The role of a judge in a trial is to ensure the propriety and fairness of the trial and to instruct the jury as to the relevant law.[1] The judge is to take no part in the contest between the prosecution and the accused.[2]
-Excessive interference or involvement by a judge during the trial may constitute such a departure from the due and orderly processes of a fair trial as to result in a miscarriage of justice.[3]
-Departure from the due and orderly processes of a fair trial may infringe the principle that criminal justice must not only be done but must also appear to be done.[4]
-To determine whether a judge has inappropriately intervened, one must ask whether the judge’s intervention has created a real danger that the trial was unfair.[5] To decide this, the appellate court must consider whether the judge’s interventions “indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’”.[6]
-When deciding whether the judicial intervention has reached the point of unfairness, one must look to the number, length, terms and circumstances of the interventions and must consider the interventions in the context of the trial as a whole.[7] The point at which the intervention occurs is also relevant.[8]
-Active participation of a judge in the conduct of cases has become more common.[9] However, the judge is under more stringent requirements in respect of the conduct of criminal trials, particularly those with a jury.[10] Greater latitude of intervention by a judge through questioning and comment will be accepted when a judge is sitting alone without a jury.[11]
The above references, together with many others, are to be found in the judgment of Wood CJ at CL in Esposito.[12]
[1] Ratten v The Queen (1974) 131 CLR 510 at 517.
[2] Ratten v The Queen (1974) 131 CLR 510 at 517.
[3] R v Mawson [1967] VR 205.
[4] R v Mawson [1967] VR 205.
[5] Galea v Galea (1990) 19 NSWLR 263 at 281; R v Macbeth [2008] SASC 71 at [73]; see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146.
[6] Galea v Galea (1990) 19 NSWLR 263 at 281, citing Sir Robert Megarry, "Tempations of the Bench" (1978) 16 Alta L Rev 406 at 409; U Gautier, "Judicial Discretion to Intervene in the Course of the Trial", (1980) 23 Crim LQ 88 at 95-96.
[7] Galea v Galea (1990) 19 NSWLR 263 at 281; R v Macbeth [2008] SASC 71 at [73].
[8] Galea v Galea (1990) 19 NSWLR 263 at 281 citing R v Yuill (1994) 34 NSWLR 179 at 185; U Gautier, "Judicial Discretion to Intervene in the Course of the Trial", (1980) 23 Crim LQ at 117.
[9] Galea v Galea (1990) 19 NSWLR 263 at 281.
[10] Galea v Galea (1990) 19 NSWLR 263 at 282; citing Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84.
[11] Galea v Galea (1990) 19 NSWLR 263 at 281; see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146.
[12] R v Esposito (1998) 45 NSWLR 442 at 468-473.
In this Court in Macbeth, Doyle CJ speaking for the Court summarised the position as follows:[13]
The issue is whether the conduct of the Judge has given rise to a miscarriage of justice.
A trial Judge is entitled to question witnesses to clear up matters that are unclear, or might be unclear to the jury, or to satisfy the Judge on a matter that concerns the Judge. There might be other reasons for asking questions. Nevertheless, it is the role of counsel to present the evidence to the jury, and a trial Judge’s role in questioning witnesses is limited by that context. The Judge should not take the case (for the prosecution or for the defence) out of the hands of counsel. A judge should not get involved in questioning to such an extent that counsel, and in particular defence counsel, cannot fairly expose their case to the jury. It is not suggested that the Judge offended against this principle. Nor should a judge ask questions in a manner or to such an extent that might suggest to the jury that the judge is partisan, or has a definite view about the evidence of a witness. But even then, judicial intervention needs to be assessed in the context of the case as a whole. A judge’s questions might indicate or expose disbelief of something that is patently incredible, or might relate to something that has already been exposed as incredible. Finally, a judge must take care that in asking questions the judge does not identify the judge with the case of either party. There is a helpful discussion of the relevant guidelines in the reasons of Wood CJ at CL in R v Esposito (1998) 45 NSWLR 442 at 468-473.
In short, the complaint about the judge’s questions has to be considered in the context of the role of counsel and of a judge in a jury trial, and paying appropriate regard to principles of the kind outlined in Esposito. At the same time, one must recognise that consistently with those principles there is scope for variation of approach, from judge to judge and from case to case. The principles are important, but in the end the ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice.
[13] R v Macbeth [2008] SASC 71 at [72]-[73].
During the course of the trial, the subject of the present appeal, the trial Judge engaged in questioning, on some occasions extensive questioning, of most witnesses. The questioning occurred during the witnesses’ evidence-in-chief and in cross-examination. Both counsel for the defence and the Director produced extensive schedules on the hearing of the appeal listing and categorising the Judge’s involvement. The schedules disclose a significant number of interventions by the Judge.
In our observation, the interruptions disturbed the flow of the evidence and on occasions precluded defence counsel from cross-examining in a planned manner. A number of interruptions and comments made by the Judge could have been taken by the jury to have involved an implied criticism of the manner in which defence counsel was conducting his client’s case. It is to be accepted that many of the Judge’s interruptions, interjections and comments may have been intended to clarify matters so that the jury might understand more clearly the evidence. The difficulty arising from the Judge’s approach was that the cumulative effect of the Judge’s interventions was to materially and adversely affect the presentation of the defence case.
Several of the Judge’s interventions which were apparently designed to correct what the Judge perceived to be errors by defence counsel, in fact involved misunderstandings on the part of the Judge. On occasions it was not possible for defence counsel to adequately correct the position. The further difficulty arose of the risk of the Judge being identified with the prosecution case.
In our view, there was excessive intervention by the trial Judge, particularly during the course of defence counsel’s cross-examination of prosecution witnesses, the evidence-in-chief, cross-examination and re-examination of the defendant and of the defence witness, Mackereth.[14]
[14] We have chosen not to set out the many transcript references. They are voluminous. To do so would cause these reasons to be extended to an unreasonable length.
Having reviewed the transcript of the evidence in the trial, we have reached the conclusion that the jury may have been adversely affected by the approach adopted by the Judge. There is a risk that the jury may have perceived the Judge to have been critical of the matter in which the defence case had been conducted. This in turn may have impacted the ability of the jury to fairly consider the issues arising in the trial. We also consider that the interventions of the Judge were of such a nature as to materially disrupt the presentation of the defence case.
The cross-examination undertaken by the Judge is also a matter of concern. There is a risk that the Judge’s cross-examination which, at times could be described as persistent, may have damaged the credibility and reliability of those witnesses in the minds of the jury. The interventions of the Judge and the cross‑examination during the re-examination of the witness, Mackereth, also raised this risk.
In our view, a judge when questioning a witness should ensure that, by the tone of the questions, the judge does not leave the jury with an impression that the witness is to be disbelieved or is unreliable. There are instances when a question or questions from a judge may have that effect. But the judge should take care to ensure that the judge is not seen to be advocating for a result. By the very nature of his or her position, a jury will be looking to the judge for direction. The judge’s directions are limited to legal directions. Juries must be left in no doubt that decisions about the credibility and reliability of a witness or accused are matters for the jury. Having said that, we recognise that a trial judge has a wide discretion to intervene to correct misstatements, to clarify the evidence of a witness and, on occasions, when he considers it to be necessary, to challenge a witness’s testimony.
During closing submission of defence counsel, the Judge interrupted counsel in the presence of the jury. One interruption related to the authorship of a hospital record that had been tendered in evidence. The record was said to be relevant as to the complainant’s account of how many men attacked him. When addressing the jury, counsel for the defendant made reference to the record having been made by a Registrar. The Judge interrupted counsel to challenge this assertion saying “it’s not proved it was the registrar who made it”. Counsel was required to read from a passage on the page referred to by the Judge. Later on the same page, there was a reference supporting counsel’s submission that it was the Registrar who had made the note.
The second interruption related to the same topic when the Judge interrupted counsel to correct him saying “[a]nd we don’t know to whom it was said”. The Judge’s comment involved a misunderstanding. There was evidence before the Court as to whom the statement had been made.
In the presence of the jury, the Judge interrupted defence counsel a third time to correct a submission about the complainant’s ability to refer to something in English. The interruption was incorrect.
Finally, in the presence of the jury the Judge challenged defence counsel’s submission as to whether a particular statement had been translated. This was a significant intrusion. An argument ensued between counsel and the Judge. The matter concluded with the Judge saying “I don’t want them to think what you are asserting is correct” and counsel responding “I am sure they have picked that up. If I may I continue with my address?”
We view the interruptions by the Judge of defence counsel’s final address as a matter of some significance. It is the usual practice for counsel to be permitted to address the jury without interruption. If a Judge is concerned about the content of the address, those concerns should, absent exceptional circumstances, be discussed in the absence of the jury. The problems that may otherwise arise are illustrated by the matters discussed above. They provide a demonstration of the danger of an interruption in the course of an address. The jury was confronted with a dispute between Judge and counsel and with the impression being left that defence counsel was making incorrect assertions. A risk arises that the jury may, as a result, come to doubt much of what defence counsel has put to them.
Having reviewed the transcript of the interchanges during the summing up, it is evident that each of the matters raised by the Judge could have been addressed in the absence of the jury. That is the course that should have been followed. If error on the part of counsel is demonstrated, counsel will then have an opportunity to correct that matter before the jury. The Judge can also address the topic in the course of summing up.
In our view, the interventions by the trial Judge as discussed above gave rise to a real risk that a miscarriage of justice may have occurred. Apart from the issue of the Judge’s undue interventions, we consider that the admitted errors earlier identified compounded the risk of a miscarriage of justice. We do not consider that the defendant received a fair trial in the circumstances.
We have had the advantage of considering the reasons to be published by David J. He has referred to some of the evidence which has caused us to allow the appeal. We agree that the Judge did not adequately direct the jury with respect to the defence case insofar as an alibi was raised.
Conclusion
For these reasons we would set aside the verdicts of guilty and remit the matter for a retrial.
DAVID J: The appellant was convicted by verdicts of a jury of one count of aggravated recklessly causing serious harm, such offence being aggravated because he was in the company of another person, and one count of threatening a person involved in a criminal investigation. At the same trial he was acquitted of a third charge of theft.
He now appeals against both convictions. The appeal concerns a number of complaints regarding the trial Judge’s involvement in the questioning of witnesses during the trial and certain aspects of his directions to the jury.
Background facts
I set out the information in full.
MORTEZA MOHAMMADI
is charged with the following Offences
First Count
Statement of Offence
Aggravated Recklessly Causing Serious Harm. (Section 23(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Morteza Mohammadi on the 30th day of May 2009 at Gepps Cross, caused serious harm to Abdul Wahid Mahmoodi, being reckless as to whether such harm was caused.
It is further alleged that Morteza Mohammadi committed the offence whilst in company with another person.
Second Count
Statement of Offence
Theft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Morteza Mohammadi on the 30th day of May 2009 at Gepps Cross, dishonestly dealt with property, namely money and keys, without the consent of Abdul Wahid Mahmoodi, the owner of that property, intending to permanently deprive him of that property or make a serious encroachment on his proprietary rights.
Third Count
Statement of Offence
Threatening a Person Involved in a Criminal Investigation. (Section 248(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Morteza Mohammadi on the 31st day of May 2009 at Adelaide, threatened to cause or procure physical injury to Abdul Wahid Mahmoodi, a person who was or might be involved in a criminal investigation, with the intention of inducing him to act in a way that might influence the outcome of the investigation.
As noted, the jury found the appellant guilty on Counts 1 and 3 but not guilty of Count 2.
The appellant and the complainant were both members of the Afghan community in South Australia. The complainant gave evidence at the trial that in the two years prior to the events which were the basis of the charge, they had seen each other at parties and gatherings of the Afghan community. The complainant said that on the night of 30 May 2009 at approximately 7.30pm to 7.45pm he played volleyball at Wingfield High School and, at that time, left alone in his car to travel to his home at Ingle Farm. Whilst leaving the school, he saw the appellant travelling as a passenger in another car and waved to say hello. However, the appellant did not wave back.
The complainant gave evidence that he drove along Grand Junction Road and stopped at the intersection of Grand Junction Road and Main North Road. Whilst stationary at a traffic light, the appellant approached the front passenger side of the complainant’s vehicle and asked for a lift to Pooraka. The complainant did not see where the appellant had come from. The complainant gave evidence that he obliged the appellant and they drove along Main North Road.
At one stage, the appellant asked the complainant to pull his car over so he could relieve himself. He did so whilst on Main North Road and the appellant got out of the car leaving the door open and walked towards a tree on the side of the road. Whilst this was happening, the complainant said that he saw a further vehicle in his rear vision mirror pull up and stop behind him. It was the same car in which he had seen the appellant whilst he was leaving Enfield High School. A second man came to the driver’s side of the complainant’s car and said, “Get out of the car, the other man wants to talk to you”. The appellant then returned and got into the passenger side of the car and started swearing at the complainant saying, “Why are you not giving work to Hodgy”. The appellant then started punching the complainant to the left side of his face. The second man opened the driver’s door and also started punching the appellant in the area of the face, head, shoulder and neck. The second man was calling him names whilst doing so. Both men said to the complainant that they were trying to kill him.
As a result of being beaten, the complainant said he fell out of the car, onto his knees and both men were punching and kicking him. He managed to escape, running across Main North Road. He had difficulty seeing out his right eye because of the punches he had received and he waited until he saw that the second car had gone then returned to his car. He noticed that the passenger door was open and the driver’s side door was closed. His wallet, which he had left in his glove box, was found on the front passenger seat of the car and $350 was missing from inside it.
The beating at the hands of the two men was the subject of Count 1 and the taking of the money from the complainant’s wallet was the subject of Count 2 (of which the appellant was acquitted).
The complainant gave further evidence that after returning to his car, he immediately rang the police and his friend, Shokrullah Mohammadi. Both arrived, as did an ambulance, and the complainant was taken to the Royal Adelaide Hospital. He immediately went to the Emergency Department and presented with swelling and bruising around his left eye, swelling over his nose and difficulty in seeing. A CT Scan revealed a fracture to the left orbital floor, and a small fracture of his nose. The fracture to his orbital floor was repaired surgically on 4 June 2009.
On the next day, 31 May 2009, the complainant said that whilst he was still in hospital he was visited by the appellant and another man called Amin. Whilst there, the complainant said that the appellant apologised to him for what happened and said, “my friend had a gun he want to kill you but I didn’t let him kill you”. He also said “life will become difficult for you if you go to the police, you might get killed”. That last comment was the threat which was the subject of Count 3. The complainant said that he asked the appellant why he had assaulted him and the appellant replied, “Why didn’t you give work Hodgy and why you swear at him”. According to the complainant, he, the appellant, Shokrullah and the person Amin were there when that conversation took place.
Shokrullah, who was called by the prosecution, gave evidence that he heard the appellant apologise to the complainant at that time for having assaulted him, however he did not hear the appellant threaten to kill the complainant if he went to the police.
In cross-examination it was put to the complainant that, although he was obviously assaulted by someone, he had deliberately falsely identified the appellant as the man who attacked him and another man, Youseff, was in fact the person responsible for the assault. Also in cross-examination a number of motives were suggested as to why the complainant falsely blamed the appellant for the assault. Among those suggestions were:
(1)he wanted money to obtain Criminal Injuries Compensation;
(2)that the real perpetrators were so well connected in the Afghan community that he could not name them; and
(3)because of that the appellant was an easy target.
The person Youseff was also called by the prosecution and denied any involvement in the assault on the complainant.
The prosecution case on Counts 1 and 3 clearly depended on the credibility of the evidence of the complainant. On Count 2, it relied upon a circumstantial case that whilst the complainant was across Main North Road, and whilst the car was unattended, at that time it could be inferred that the appellant and his companion had stolen the money from the complainant’s wallet. Clearly the jury could not find that inference proved beyond reasonable doubt by virtue of their verdict of not guilty to Count 2.
The defence case
The appellant gave evidence and denied any involvement in the assault on the complainant or the theft of his property. He also gave evidence of an alibi. He said that on the night of 30 May 2009 he was at a friend’s house. He knew this friend by the nickname of “17”. That person lived in Hutt Street, Adelaide.
He gave further evidence that he was at 17’s house with his girlfriend, Shannon Mackereth, and another friend, Seyyed Ali Mousavi. He told the Court he was drinking at 17’s house before going to Isobar in Hindley Street with Shannon and Seyyed at around midnight. After the Isobar, the appellant and Shannon were driven by Seyyed to Shannon’s father’s house at Fulham Gardens. The appellant said that he woke at the house the next day between 10.00am and noon before going to visit the complainant at hospital. The reason he gave for visiting the complainant when giving evidence was that he had heard from a person called Hanif Askari that the complainant had been assaulted. He said it was cultural practice in the Afghani community when that was the case to visit someone in that situation even though he did not know him particularly well. He gave evidence that while he was visiting the complainant in hospital he did not threaten to kill him if he went to the police, and did not apologise for assaulting because he said he did not assault him.
Shannon Mackereth gave evidence at the trial in relation to the alibi. She said she was with the appellant and Seyyed and 17’s house on the night of 30 May 2009 before walking to Isobar at Hindley Street at around 10.30pm. She gave evidence that she then went back to 17’s house before being driven by Seyyed to her father’s house at Fulham Gardens. She said they awoke around 3.00pm or 4.00pm the next day and the appellant left that house soon after they woke up.
She also gave evidence that the appellant had telephoned her about eight or nine months before the trial to tell her that he had been charged with an offence. In other words, he telephoned her in late in 2010. She said that she gauged that the events that she gave evidence about was the night of 30 May 2009 by looking at her calendar. The calendar was not produced at trial and Shannon gave evidence that she had since disposed of it.
Seyyed also gave evidence but he could no longer recall his movements on 30 May 2009.
The defence case at trial was therefore that for whatever reason the complainant has involved the appellant in an assault when he was just not there. He therefore denied any knowledge of Counts 1 and 2. Furthermore, he visited the appellant in hospital but there was no conversation amounting to an admission or a threat. Added to that, he gave positive evidence that on the night in question he was with Shannon Mackereth and Seyyed Ali Mousavi at another premises.
Appeal
Ground 1
I set out Ground 1 in full.
The learned Judge erred as a matter of law in his directions to the jury in relation to the complainant’s evidence about a Criminal Injuries Compensation claim and any failure by defence counsel to cross-examine on that topic.
During cross-examination of the complainant it was put to him that he lodged an application for Criminal Injuries Compensation. That was put as a possible reason as to why he might lie about the appellant’s involvement in the assault. The complainant gave evidence that he did not remember completing any forms to that effect but did not dispute that that may have been done. It was further put that the false implication of the appellant was because, in order to make a claim for Criminal Injuries Compensation, he had to name someone. That suggestion was denied by the complainant.
Further to that topic being raised in cross-examination, the appellant’s counsel during his address submitted that there is no onus upon the appellant to give a reason why the complainant might lie and reminded the jury that it was suggested that during the trial the appellant was someone:[15]
… who would be easily blamed on the issue of providing a bad guy for the purposes of getting compensation. It was suggested to him that he wanted money. He denied that. There were questions asked about Criminal Injuries Compensation and the like.
[15] T481.
On that topic the Judge in his charge to the jury said:
You will recall that Mr Richards submitted to you that one reason Mr Mahmoodi falsely accused Mr Mohammadi was to get money from his family or from the State through criminal injuries compensation.
I tell you that every citizen has a right under our law to make a claim for compensation as a result of injuries received during the commission of a crime. That is a right that every citizen in our community has.
If you are satisfied that Mr Mahmoodi has made such an application then bear in mind that he has a right, a legal right, to do so. It is another thing altogether to be satisfied that he falsely accused someone of committing an offence so that he could make such an application and get money.
In any event, you will have to consider the evidence and whether it satisfies you that he has in fact made an application for criminal injuries compensation. You will consider Mr Mahmoodi’s evidence as to that and the evidence of Detective Anderson. You will consider what you may of Detective Anderson’s evidence on that issue. You will also take into account that Mr Richards did not put to Mr Mahmoodi that his motive to lie was to get criminal injuries compensation. Accordingly, Mr Mahmoodi has not had an opportunity to comment on that so you do not know what he would have said about that. Mr Richards did ask him if he had said to anyone that he would consider withdrawing his allegation if money was forthcoming. He denied that. No-one came along to tell you that had happened.
The Crown, on appeal, now concedes that the Judge was in error in making those comments. I set out the relevant part of the cross-examination of the complainant to illustrate that error:[16]
QI put to you yesterday that whoever assaulted you at Gepps Cross it was not this man Morteza Mohammadi, do you recall that.
AHe does, yes, I do remember.
QIf I suggest you named Morteza because you felt you had to name somebody in order to make the claim for compensation, what would you say to that.
ANo.
[16] T227.
Mrs Shaw QC, for the appellant, argues that that admitted mistake by the trial Judge placed the appellant and his counsel in an unfavourable light. It implied an unwarranted criticism of the way the defence were cross-examining the complainant and was, of course, incorrect.
The comments were unfortunate and reflected unfairly on defence counsel at the trial. However, those comments could not have amounted to a miscarriage of justice. There was no doubt that the complainant was assaulted by somebody as police officers and ambulance officers arrived almost immediately and he was taken to hospital and there was no doubt that if there was a motive to receive some form of compensation by falsely naming the complainant it could only have evolved at a later stage. Such a theory as that was only faintly suggested by the defence in cross-examination. It was quite fanciful and, as defence counsel properly pointed out in his address, it was not for him to provide a motive as to why the appellant might lie.
I would reject that ground of appeal.
Ground 2
I set out Ground 2 in full:
The Learned Judge erred as a matter of law in admitting evidence of the photographic lineup in September 2010 during re-examination of the complainant and in the evidence of Senior Constable Anderson.
This was not an identification case. There was no dispute that both the complainant and the appellant to a certain extent knew each other. There was no question of mistaken identity. During the evidence of the complainant, there was no attempt to lead evidence of a photographic identification which took place during the investigative process. In fact, there was no dispute regarding an in dock identification because that aspect of the trial was not an issue.
During cross-examination counsel for the appellant at trial asked questions concerning the appellant’s meeting with the police on the date of the identification procedure. The purpose of the cross‑examination on that topic was to investigate the possible inconsistent statements that the complainant may have made to the police especially in relation to Count 3. Indeed, the complainant was cross-examined about a statement that he gave on 19 September 2010 which was the day of the photographic identification.[17] In re-examination, to rebut the criticism that there were either inconsistent statements or no statements at all made about the incident when speaking to the police on 19 September 2010, the fact that the complainant was not there for the purpose of giving a further statement but for the purposes of looking at photographs was led by the prosecution.
[17] T151.
Mrs Shaw now argues that by presenting evidence of an unnecessary photographic identification parade (unnecessary because identification was not an issue) the prosecution have unfairly bolstered the evidence of the complainant.
I reject the argument. The purpose of the re-examination was clear and would not have afforded any prejudice to the appellant.
I reject that ground of appeal.
Ground 3
I set out Ground 3 in full:
The Learned Judge erred as a matter of law in failing to direct the jury in relation to the prosecution cross-examination of the defence witnesses and final address that the applicant and the witness Shannon MacKareth (sic) concocted a false alibi.
Mrs Shaw argues that the trial Judge has erred in not giving the jury a direction in the terms of not reasoning that if the alibi was concocted it only went to the respective credibility of Shannon Mackereth and the appellant and could not be relied upon as a consciousness of guilt.
I reject that argument. The alibi is the appellant’s answer to the charge. The question of whether the appellant has lied or not in putting forward his alibi was the issue which the jury really had to decide. In those circumstances a lies direction was not appropriate. However, the way the trial Judge dealt generally with the question of alibi has caused me great concern.
When a defence of alibi is presented, namely when an accused denies having been present at the scene of a crime at the time when it was committed and has called a witness to support that fact, it is important for the jury to be directed in clear terms that there is no onus on the accused to satisfy the jury of the truth and reliability of his alibi. It was also important to direct the jury that if it was reasonably possible that the alibi put forward was true, then they must acquit. Further, it was important to direct the jury that the rejection of the alibi evidence standing alone does not necessarily lead to a conclusion that the accused is guilty. They should have been directed that, if that was the case, they must then go on to consider all other evidence as to whether the prosecution had proved all the elements of the offence beyond reasonable doubt. In this matter the trial Judge, when talking about alibi, said the following:
The accused told you that he was not on the side of Main North Road that night on 30 May 2009. He told you that he was not one of the two men who assaulted and robbed Mr Mahmoodi. He told you that on that night he was at 17’s house with his girlfriend Shannon and with a friend Seyyed Ali Mousavi, and that he and his girlfriend and Mr Ali Mousavi later went clubbing.
The accused told you that he drank too much alcohol that night and woke up with a hangover. That morning he telephoned Hanif Askari. He was told by Hanif Askari that Mr Mahmoodi was in hospital. He either told Hanif Askari as he told you once, or he did not as he told you another time, that he was going to see Mr Mahmoodi. He told you that that was the Afghani culture. The accused told you he went to the hospital, said to Mr Mahmoodi that he was sorry that he was in hospital, that he had heard what had happened and that Mr Mahmoodi was lucky they did not kill him. He denied to you making any threat to Mr Mahmoodi.
Ms Shannon Mackereth told you that she used to be the girlfriend of the accused. Mr Mahmoodi (Mohammadi) told you that she still is. Ms Mackereth told you that when Mr Mohammadi first spoke to her after his arrest she could not recall an incident. This was over a year later. He told her it was 30 May 2009. Ms Mackereth told you that she later found a calendar and saw an entry regarding a time she spent at her mother’s. She linked that to this incident. She said it was the day after she returned from her mother’s. She said they went to 17’s house.
She told you that she no longer has the calendar. You might consider whether there was any calendar, whether there was any such entry as she described, and if there was, whether she now remembers it correctly. This is because you do not have the calendar, and you might think that the calendar was the link to this witness’s evidence.
In my view that direction does not, in the interests of fairness, satisfy those directions that should be given when an alibi defence is presented. Although there are general directions throughout the summing up about the onus of proof being upon the prosecution, it was most important that when discussing the alibi evidence that directions as to the onus of proof should be related to the alibi evidence called by the defence at trial.
If that alone was the only concern regarding the Judge’s directions on alibi (or lack thereof), there may be an argument that that could not affect the verdict. However, there were other considerations concerning alibi which, combined with his lack of direction, cause me further concern. When dealing with the alibi witness, namely Shannon Mackereth, the appellant now argues that the trial Judge’s questioning of that witness indicated at least a potential bias and had the effect of downplaying her evidence. That is part of the basis of Ground 5 of the notice of appeal which I turn to now.
Ground 5
I set out Ground 5 in full.
5.The fair trial of the applicant miscarried as a result of a combination of the errors raised in the above grounds and in the further particulars below:
5.1 The excessive intervention of the Learned Judge during the trial, in particular, during defence counsel’s cross-examination of prosecution witnesses, the evidence in chief, cross-examination and re-examination of the applicant and defence witnesses and during defence counsel’s address.
5.2 The conduct of the Trial Judge potentially adverse to the defence case that was not the subject of any direction or clarification despite the complaint of counsel.
5.3 Statements by the Trial Judge in the presence of the jury prejudicial and/or adverse to the defence case.
Although this ground involves the Judge’s intervention throughout the trial, in my view the trial has miscarried because of his intervention during the vital aspect of the trial, namely the examination of the alibi witness. In my view, many of these interventions were inappropriate and had the effect of adversely or unfairly affecting the defence case.
I set out in full the trial Judge’s questioning of the defence witness, Shannon Mackereth. The gist of her evidence is set out in my outline of the facts. When she was asked questions in chief by counsel for the appellant, the trial Judge, during evidence in chief, asked the following questions:
[18] HIS HONOUR
[18] T416.14-16.
Q.Does that mean you are now not in a relationship.
A.Not at the moment. We were, but not at the moment.
…
[19] HIS HONOUR: Have we got the calendar?
[19] T418.4-9.
MR RICHARDS: I will ask the witness about that shortly.
HIS HONOUR: Otherwise it’s secondary evidence from a document and would not be admissible.
MR RICHARDS: If your Honour pleases, I will ask this.
…
[20] HIS HONOUR
[20] T420.24-421.24.
Q.The day after you got back.
A.Yep.
XN
Q.Do you know what date that was.
A.The 30th.
Q.How did you come to see -
HIS HONOUR
Q.How do you know that.
A.Know that it was the 30th?
Q.Why wasn't it the week before the Saturday where you remember something in the calendar that you were with your mother.
A.It was that week prior.
Q.Yes.
A.Then I had come back.
Q. Was it prior to your note in the calendar.
A.No. It was -
Q.How do you know.
A.It was the week before.
Q. How do you know that.
A.Because I had written it on the Monday that to go and stay with my mum.
Q.You wrote on a calendar, I thought it was on the Saturday that there was an entry.
A.No. No, not on the Saturday, it was the Monday and I had said in my calendar to stay up there for the week at my mum's house which is what, like, made me remember.
Q.You made that note on the Monday when you left to go to your mother’s.
A.Yes. I hadn't made it on the Monday, I made it before.
Q. The -
A.I made it obviously before so I would remember.
Q.Why ‘obviously’.
A.Because I would have written it the week before that so that I knew I was going to my mum’s.
Q.I thought the week at your mother’s place came on suddenly when you had some problems with your father.
A.Yeah it had.
…
[21] HIS HONOUR.
[21] T422.8-31.
Q.You caught a bus into town you were telling us -
A.Yes.
Q. - when you got up. Go on.
A.Sorry?
Q.What happened then.
A.Then I caught the bus into town, and walked the rest of the way to Carrington Street, or near Hutt Street, where he lives off, and, yeah, I went to - I went inside and met them and it was Ali, Seventeen and Morteza they were sitting there and inside playing cards and chatting and everything and then I sat down and joined.
XN
Q.The person Ali, do you know his full name.
A.No. I know him only slightly.
Q.Can you remember what you did that night.
A.Yes.
HIS HONOUR
Q.She hasn’t said it was night. She got up and she caught the bus.
MR RICHARDS: Quite right.
HIS HONOUR: Perhaps you could get her to give the evidence.
MR RICHARDS: Yes. I will attempt to do so.
…
[22] HIS HONOUR: I don’t think she said either of those things Mr Richards.
[22] T424.5-13.
XN
Q.Did you speak to the police about this matter.
HIS HONOUR: She said she did that, she didn’t say how or when.
MR RICHARDS: I think she did say how, I may be wrong about that, I'm certainly wrong about the time. I withdraw the question.
…
[23] HIS HONOUR
Q.When you spoke to them the calendar had already gone.
A.Yeah, I had thrown that out a while ago; did a bit of a clean-out, threw everything out.
Q. So it didn't still exist then and police could have got it.
A.No.
[23] T425.1-7.
When cross-examined, the following interventions took place:
[24] HIS HONOUR
[24] T425.22-426.25.
Q.That was actually before you looked at the calendar wasn’t it.
A.No.
Q.Wasn’t it.
A.Sorry?
Q.You spoke to him about the matter before you had looked at the calendar. I may have misunderstood your evidence.
A.Sorry?
Q.I may have misunderstood your evidence.
A.Yep.
Q.I understood it to be you spoke together about the night, if you like.
A.That was about eight months.
Q. You couldn't say when it was, then you went away and found the calendar.
A.Yeah.
Q.And then you looked at it.
A.Pretty much that day.
Q.And then you threw it away. That’s the sequence, am I wrong about that or right.
A. Yeah, that’s right.
Q.I’m right.
A.Yes.
XXN
Q.When you spoke to Mr Mohammadi about the night of 30 May 2009, what did he say to you.
A.He just told me that he - he said that he’d, you know, committed - I mean someone had accused him of an offence and he had asked me if I could remember anything about the night because he was sure that I was with him and, you know, we’d done what we did and, yeah, I just thought - I didn’t doubt him, I didn’t know. I didn’t -
HIS HONOUR
Q.You didn’t doubt him.
A.I didn’t doubt but like, you know, I thought he was very sure about it, so I didn’t want to just, you know, not just like - I wanted to help him so I wanted to try and find out if it had happened and if I’d been with him, that’s why I looked at it, that’s why I had to find something.
…
[25] HIS HONOUR
[25] T428.22-24.
Q.Scotch.
A.Yeah.
…
[26] HIS HONOUR
[26] T429.30-32.
Q.Who went to your father’s house.
A.Just me and Morteza, we stayed there the night.
…
[27] HIS HONOUR
[27] T430.23-33.
Q.Who was that.
A.I’m not sure.
XXN
Q.Did you see the person who picked him up.
A.No.
HIS HONOUR
Q.This is about 3 o’clock or 4 o’clock, what -
A.Yeah about 3 or 4.
Q.- in the afternoon.
A.Yeah, it was pretty late in the afternoon he left.
…
[28] HIS HONOUR
[28] T432.2-14.
Q.Waiting for.
A.I didn’t know what I was supposed to do.
Q.You were waiting for the police to contact you.
A.Yeah.
Q.Why did you think they were going to contact you.
A.Sorry?
Q.Why did you think they would contact you.
A.I didn’t know what I was going to do at that point. I wanted to help him, but I wasn’t sure if I should go through.
Q.Through with what.
A.Being a witness and helping him out.
…
[29] HIS HONOUR: About four weeks.
…
[30] HIS HONOUR
Q.I missed that you’re looking away from me, that’s okay because you’re talking to someone in the opposite direction, but what you say, particularly at the end, disappears from at least my hearing. Can you repeat that. What did he say to you.
A.Sorry?
Q.What did he say to you a few weeks ago as to what you should do; anything.
A.No, not really.
Q.So he didn’t say anything to you.
A.He said like ‘If you could get in touch with my lawyers’ and stuff and that was just basically so I knew what he was doing, knew whether to come in, I didn't know what it was at this trial - the trial, I didn’t know what it was.
[29] T432.28.
[30] T432.36-433.13.
In re-examination, the following interventions took place:
[31] HIS HONOUR
[31] T434.11-31.
Q.You do now.
A.Well, yeah, today, because you’ve told me.
Q.Sorry.
A.Well, you’ve told me that I should have gone earlier.
Q.Who’s told you.
A.You - the lady, sorry. She just said that, you know, ‘Why didn't you go?’.
Q.That’s not telling you to go.
A.No, that’s not telling you to go.
Q.It’s asking you why you didn't.
A.I realise that now.
Q.What is it that’s happened that you realise now.
A.I’m sorry?
Q.What has happened -
A.That I could have helped earlier in the case if I’d, you know, given my evidence earlier.
Q.How would it have helped.
A.I don't know. I just thought, you know, if I knew – if I’d known about it earlier, I should have gone, told the police or somebody about it earlier.
…
[32] HIS HONOUR: What: that she had checked on the calendar?
[32] T435.1-28.
MR RICHARDS: Yes.
A. Yes, I told him that I knew that.
REXN
Q.Did you tell him you could remember the date.
A.Yes, I told him, yeah.
HIS HONOUR
Q.That was September/October last year.
A.Yeah. That’s when I looked through my calendar.
Q.Yes, and then you say you told, immediately you looked at the calendar, Morteza at that time what you had discovered.
A.Yeah.
Q.And he didn’t say anything as to what you should do.
A.Yeah, I talked to him about it.
Q.But did he say anything as to what you should do.
A.No. He said if I could get in touch with his lawyers.
Q.Back in September last year.
A. No, he didn’t say it then.
Q.No, that’s what I’m asking you.
A.Sorry; no.
Q.He didn’t ask you to do anything back in September last year when you tell us you told him what you’d seen on the calendar.
A.Yes, he just said ‘When it comes to it, can you help me and come in, like, to be a witness?’, but he didn’t say anything else. He just asked if I could be a witness.
…
[33] HIS HONOUR
[33] T435.35-436.2.
Q.And, in particular, he didn’t tell you to go and see his lawyers. Did he tell you that.
A.He said I’d need to get in touch with them to find out -
Q.With his lawyers.
A.Yes, to find out when the case was on and everything.
…
[34] HIS HONOUR
Q.But the conversation you and I were talking about was one in September/October last year.
A.Yeah.
Q.You said he didn’t ask you to do anything.
A.He just - he just asked if I would be able to come in when it happened.
Q.Mr Richards then got up and said ‘In particular, he didn’t ask you to go to the police’, speaking about September/October last year.
A.Yeah.
Q.And then I asked you ‘And he didn't tell you to go to the lawyers in September/October last year?’, is that correct.
A. Yeah. Sorry.
[34] T436.11-25.
In my view, looking at those interventions, they caused a risk of unfairness and at least tended to indicate the Judge’s view that the evidence was not to be believed. In my view, a combination of that and his lack of direction on the question of alibi amounted to the defence case being unable to be presented both fairly and clearly. A combination of those factors has led to an unfair trial.
Although the question of unfairness in relation to the alibi witness strictly speaking only applies to Count 1 on the information, nevertheless the resolution of Count 1 is an important factor in the jury’s consideration of Count 3 and such unfairness flows through to Count 3.
As a result of the combination of Grounds 3 and 5 I would allow the appeal, set aside the conviction and order a retrial. It is to be noted there are other grounds and other arguments, including an argument that the Judge did not clearly put the defence case. In the light of my findings it is unnecessary to deal with that ground and those arguments.
Conclusion
For the reasons above I would allow the appeal, quash the conviction and order a retrial.
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