Saad v The Queen

[2006] HCATrans 335

[2006] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M147 of 2005

B e t w e e n -

MARY SAAD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 1.48 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear on behalf of the applicant with my learned friend, MS S.E. CURE.  (instructed by Leanne Warren & Associates)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear on behalf of the respondent with my learned friend, MR C.B. BOYCE.  (instructed by Solicitor for Public Prosecutions)

CALLINAN J:   Yes, Mr Croucher.

MR CROUCHER:    If the Court pleases, the principal point of special interest which arises on this application is whether the so‑called rule in Gilbert’s Case with respect to murder and manslaughter cases when there has been a failure to leave manslaughter where there is a viable manslaughter which gives rise to a miscarriage of justice and an order for a retrial, whether that same rule applies in the same way or at all to non‑murder/manslaughter cases. 

There has been a series of cases in most Australian jurisdictions grappling with that issue and also in the United Kingdom over the recent years.  For example, in Victoria, cases of Doan and Kane have looked at the issue; in New South Wales, Elfar; in South Australia, Matthews and Burgess; and in Queensland, Rehavi and many other cases; also in the United Kingdom, Fairbanks and Maxwell in both the Court of Appeal and the House of Lords. 

The question is of a great deal of importance to the administration of criminal justice and this is a particularly suitable vehicle to consider the case because Mr Justice Nettle who delivered the principal judgment in the Court of Appeal concluded, having examined the record as per vice in this Court recently, that if this doctrine applied to a case like this then there would be a miscarriage and a retrial would have to be ordered.  So that the narrow question that would arise for this Court on an appeal is (a) whether the doctrine does apply or (b) if it does apply, may be it applies in a slightly different way, for example in the way in which other courts have considered that it might apply in England, a so‑called interest of justice test which seems in some ways different from the test enunciated by this Court in Gilbert’s Case. 

The reasons why Gilbert should apply in the present case are those which it is submitted arise from Gillard and Gilbert themselves.  It is submitted there is no reason in principle or policy to confine the principles in Gilbert and Gillard to murder/manslaughter cases.  In Gilbert at paragraph 16 of the joint judgment of the Chief Justice and Justice Gummow, their Honours observed that:

[Juries] make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences.

Similarly, in your Honour Justice Callinan’s judgment at paragraph 101 of Gilbert, your Honour said:

It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.

It is submitted that those sentiments were equally applicable to the present case.  It was highly likely that the jury would conclude that the applicant’s request of Dr Zaky not to pass on the medical records which revealed –…..belief that the records would tend to demonstrate a link between her and the deceased’s death and also between her lover and the deceased’s death.  But if assist an offender or accessory after the fact, as it used to be known, was left, the jury would have been compelled to consider whether that request was designed by the applicant to protect her lover from prosecution because he had told her his crime, accessory after the fact, in which case she would be guilty of that or might be guilty of that, instead of being invited to conclude only that it was designed to protect her from prosecution because of her knowledge of her own part in the crime. 

Further, again, in the joint judgment of Chief Justice Gleeson and Justice Gummow in Gilbert, their Honours observed at paragraph 17 that in the present:

age of concern for the victims of violent crime ... a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.

Those thoughts, it is submitted, are equally applicable to a circumstance here.

CALLINAN J:   Is there an application for any direction to that effect?

MR CROUCHER:   No, there was not, nor was there in Gillard.  In fact, it was quite the opposite.  The submission in Gillard was do not leave manslaughter.  Here there was simply nothing said about it.

CALLINAN J:   One can see why in this case the applicant’s counsel would want to conduct it on a basis of all or nothing.

MR CROUCHER:    So can I, with respect, your Honour, yes, but he did not.  He did leave the door ajar, your Honour, and this was not picked up.

CALLINAN J:   Where did he do that?

MR CROUCHER:   In his final address counsel for the applicant said this at page 87 to 88 of the application book.  Starting at line 23 on page 87 counsel said this:

So now you are being thrown into what is the worst kind of case because it is the most controversial, a circumstantial case.  In a circumstantial case the Crown has to knock out everything.  They have to prove beyond reasonable doubt that it is murder.  That means any competing hypothesis has to be excluded.  They have to exclude suicide or anything else.

Just pausing there, the defence was suicide for both accused in the case.

CALLINAN J:   An extraordinary suicide, seatbelt on and flames licking around him.

MR CROUCHER:   The Crown’s own witnesses, the pathologist and the fire expert, said they had seen that sort of thing before.

CALLINAN J:   Yes, but very, very rarely with the seatbelt on, do you remember?  Practically never.

MR CROUCHER:   But it happens.  They said they have seen it, that sort of thing.  In any event, counsel goes on:

In Mary Saad’s case, if I can be completely blunt, what that means is they have to exclude suicide, and then the other thing you have to look at, and for completeness sake, did Hany –

that is the co‑accused –

do this as a frolic of his own?

CALLINAN J:   All the more reason why, if counsel thought that there was any possibility of an alternative verdict for the benefit of his client, he would have expressly drawn the trial judge’s attention to it and asked for directions accordingly, if you say that counsel was conscious of it, and you say that does show a consciousness of it.

MR CROUCHER:   Well, he has left it open, your Honour.  Your Honour, of course, would be familiar that in many murder/manslaughter cases the defence might be alibi, “I didn’t do it, wasn’t there”, but a trial judge is nevertheless compelled to leave manslaughter where it might arise on the facts.  In this case, what the trial judge did when dealing with the issue of the defence said this – at page 192 of the application book through to 193, starting at 192, line 24, his Honour said this:

In this case the defence has put forward a positive case, as it were, that what occurred was suicide, therefore, it follows that for you to convict the accused in this case you would have to be satisfied that suicide is not a rational hypothesis, because suicide, of course, if the deceased man killed himself, it would follow that the accused were not guilty.  So that if you considered that suicide was a rational hypothesis from the facts which you accept, well then it would be your duty to acquit.  On the other hand, if you consider that all [the] circumstances put together excludes suicide and it is in fact murder, well then you would convict –

With respect, no, because you would not have excluded the alternative hypothesis, in the applicant’s case, that the co‑accused did it on a frolic of his own.  The importance in this case of such an alternative hypothesis was that virtually all of the evidence which pointed to murder also pointed to her being an accessory after the fact or being potentially guilty of assist an offender.  The post‑offence conduct relied on was a series of lies and behaviour, particularly the behaviour in contacting the doctor about the pills or the prescriptions that had occurred. 

Now, it is but a short step between murder and accessory after the fact in this case, but it was a step that was foreclosed, as was the alternative effectively of an acquittal based on the fact that he was murdered but by the co‑accused on a frolic of his own, was foreclosed by that direction and the failure in the alternative to put that which was put by counsel for the applicant in the trial below at the passage I have just referred your Honours to.

Now, as I say, the point that it was not specifically reserved has not stopped this Court in Gillard – in fact, it was expressly sought that manslaughter not be left in Gillard by the defence, so that should not stop this Court from considering the point in this case.  It is a matter of real importance to the administration of criminal justice, as I say.  The cases to which we have referred your Honours before show that courts of criminal appeal in dealing with all of the non‑murder cases have grappled with whether or not Gilbert does apply in the same way.  Generally speaking they have said no but something similar.  This is somewhere between the two.  This is a murder case but the alternative verdict is accessory after the fact. 

Now, it is put against us that unlike murder/manslaughter where manslaughter is, in a sense, necessarily included in murder, it is the difference between, say, mens rea or some other form of defence that will determine the difference between the two – and that is true – that, therefore, that means that the principle cannot apply.  It is respectfully submitted that that is not a proper basis for the denial of the operation of the principle. 

It is true that the principle may be rooted in history, in part, at least, where the difference between murder and manslaughter made a significant difference to whether a person lived or died, for example, but, nevertheless, the way the principle has now developed and the way it was explained by the Court in Gilbert and Gillard, for example, that juries make their findings of fact depending on the choices that they have to make – juries rooms might not be a place of undeviating logic or rigour in these particular circumstances – juries are faced with unpalatable choices sometimes between letting someone go who may well have been involved in covering up her lover’s crime. 

Those sorts of considerations, it is respectfully submitted, are equally applicable to a situation like this and ought to give rise to the setting aside of a conviction when there was a viable alternative left.  There can be no debate that there was a viable alternative unless there was some sort of notice of contention, because, as I say, Justice Nettle came to the view that the principle in Gilbert, had it applied, would have compelled a new trial to be directed, because his Honour looked at the record à la vice and said that was the view that he came to. 

Now, even if the alternative verdict ought not to have been left, that is one thing, and does not give rise to a miscarriage of justice, but another thing is, as we have sought to point out before, his Honour’s directions foreclosed the jury from considering an alternative hypothesis consistent with innocence in any event.  It became suicide or nothing on his Honour’s directions when it should have been, “Suicide, yes, he is acquitted, but if not suicide, did the co‑accused do it on his own as a possibility?  If you can’t exclude that possibility, she must be acquitted.”  The jury were never told about that; in fact, the directions that I have taken your Honours to foreclose that possibility. 

Because of that error, it is submitted it also makes it an attractive vehicle to consider the related question of whether or not the alternative verdict ought to have been left and the broader question of how this doctrine might apply to other cases which can be considered at the same time.  If the Court pleases, those are our submissions.

CALLINAN J:   Yes, there is no need for us to hear you, Mr Holdenson.

The directions of the trial judge which the applicant would wish to argue were defective if special leave were granted were responsive to the conduct of the case by the parties, especially on behalf of the applicant.  The case was, it should also be pointed out, an extremely strong, albeit a circumstantial, one.  For these reasons special leave should be refused.

AT 2.03 PM THE MATTER WAS CONCLUDED