Salehi v The Queen - [1999] WASCA 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SALEHI -v- R [1999] WASCA 279

CORAM: KENNEDY J
PIDGEON J
MURRAY J

HEARD: 6 OCTOBER 1999

DELIVERED : 8 DECEMBER 1999

FILE NO/S: CCA 21 of 1998

BETWEEN: KAMAL ALI SALEHI
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Joint trial of two accused persons - Out-of-court statements by one accused implicating the other did not require severance of trials - Admissibility of opinion of forensic pathologist as to manner of infliction of wounds - Admissibility on appeal of evidence challenging accuracy of translation of out-of-court statements of applicant

Legislation:

Nil

Result:

Application for leave to appeal refused

Representation:

Counsel:

Applicant: Mr S W O'Sullivan
Respondent: Mr B Fiannaca

Solicitors:

Applicant: Mr M D Cole
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Demirok v The Queen (1977) 137 CLR 20
Gallagher v The Queen (1986) 160 CLR 392
Shepherd v The Queen (1990) 170 CLR 573

Case(s) also cited:

Re Attorney-General's Reference (No 1 of 1977) [1979] WAR 45
Chidiac v The Queen (1991) 171 CLR 432
Dobson v The Queen, unreported; CCA SCt of WA; Library No 8213; 11 April 1990
M v The Queen (1994) 181 CLR 487
Mickelberg v The Queen (1989) 167 CLR 259
Morris v The Queen (1987) 163 CLR 454
R v Annakin (1987) 37 A Crim R 131
R v Chan Kam Wah, unreported; 1995 CCA SCt of NSW; 13 April 1995
R v Darby (1982) 148 CLR 668
R v De Jesus (1986) 22 A Crim R 375
R v Grondkowski [1946] KB 369
R v Marinovich (1990) 46 A Crim R 282
Ah Poh Wai v The Queen (1995) 15 WAR 404

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. I am in agreement with those reasons and with the order which his Honour proposes.
PIDGEON J: I agree with the reasons of Murray J.
MURRAY J: The applicant was presented with one Alikhani for trial in this Court before Franklyn J and a jury upon an indictment containing two counts. The first charged the two men with an aggravated offence of burglary in that they entered the home of a Mrs Reynolds, in company, armed with knives, when they knew or ought to have known that Mrs Reynolds was present in the house. The second count on the indictment charged both men with the wilful murder of Mrs Reynolds.
Prior to the trial, on 12 December 1997, there were proceedings before the trial Judge under the Criminal Code (WA), s 611A. They took the form of a voir dire as to the admissibility of video‑recorded interviews conducted by police with each of the accused men. His Honour concluded that the evidence of both interviews was admissible and not to be excluded from evidence in the exercise of his Honour's discretion. The trial itself commenced on 15 January 1998. The jury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] WASCA 279
Decision Date: 8 DECEMBER 1999

CaseChat Overview and Summary

Salehi appealed against his conviction for murder. Salehi and Alikhani were jointly tried. The trial judge allowed the admission of out-of-court statements by Alikhani which implicated Salehi. The jury found Salehi guilty of murder. Salehi argued that the admission of the out-of-court statements by Alikhani was inadmissible, prejudicial, and of limited probative value. Salehi also argued that the trial judge should have excluded evidence from a forensic pathologist as it was speculative and inexpert. Salehi submitted that the failure to exclude this evidence deprived him of a fair trial. Salehi also submitted that evidence of motive to involve a co-offender as a method of reducing the penalty upon an admitted offender was not considered by the jury. Salehi argued that the unreliability of the translation of Alikhani's interviews meant that the trial was unfair and the verdict unsafe and unsatisfactory.
The court found that the out-of-court statements were not inadmissible and that the prejudicial effect of those statements was not so great as to require a severance of trials. The court held that the evidence of the forensic pathologist was admissible and that the trial judge was correct not to exclude it or to direct the jury as to its limited probative value. The court held that the trial judge had not erred in failing to particularise to the jury the evidence legally available against Salehi. The court held that Salehi's right to silence had not been infringed. The court held that the fresh evidence of unreliability of the translation did not render the whole of the evidence of the interview so unreliable as to be inadmissible.
The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The grounds of Salehi's application for leave to appeal against conviction are formulated as follows:"The Appellant Salehi was denied a fair trial by reason of:Particulars1.The Jury was shown Out of Court Statements made by the co accused Mojhtaba Alikhani which implicated the Appellant Salehi. These were contained in a Video Taped interview between Police and Alikhani on 2 May 1997 and an Audio Taped Interview between police and Alikhani on the same date. These statements were:(a)inadmissible against Salehi;(b)prejudicial to Salehi;(c)of limited probative value against Alikhani.and accordingly should not have been admitted into evidence either because of their inherent inadmissibility or as an exercise of judicial discretion due to the unfairness caused to Salehi in a joint trial.2.The prejudice caused to Salehi by the admission into evidence of the said statements was of such magnitude that it would be incapable of being overcome by the directions of the learned trial judge; especially given the 'expert' evidence of the forensic pathologist Dr Margolius to the effect that there was the possibility, if not likelihood, that a second person was involved in restraining the victim for at least part of the time she was being stabbed. (Salehi being so identified by Alikhani in the said out of court statements).3.The evidence of Dr Margolius concerning the likelihood of restraint of the victim was inadmissible against Salehi as inexpert speculation and should have been excluded by the learned trial judge; failing such exclusion the learned trial judge should have directed the jury that as a matter of law the evidence could not be used against Salehi because there were a number of equally reasonable inferences available which were consistent with the non involvement of Salehi.4.In so far as the learned trial Judge failed to exclude the said evidence of Dr Margolius or to so direct the jury concerning it the Appellant Salehi was deprived of a chance of acquittal reasonably open to him.5.The learned trial Judge, in the context of a joint trial in respect of a particularly brutal killing in which inadmissible and highly prejudicial evidence against Salehi was heard and seen by the jury, should have particularised to the jury the only evidence legally available to the jury when considering the case against Salehi. In the absence of such a direction Salehi was deprived of a chance of acquittal reasonably open to him and the resulting verdict is unsafe and unsatisfactory.6.In the circumstances of the accused Salehi exercising his right of silence in the trial he was unfairly deprived of the benefit of that right by the matters set out above and to that extent the trial was unfair.7.Individually and cumulatively the abovementioned matters have rendered the trial unfair to Salehi and the resultant verdict unsafe and unsatisfactory.FRESH EVIDENCEIn the event that the Court is prepared to consider the evidence contained in the Affidavit of Shahen Wheatley sworn 28 September 1999:8.The effect upon a jury of evidence of motive to involve a co offender as a method of reducing the penalty upon an admitted offender in the instant case could only benefit Salehi's case and its absence from the trial because of cultural and linguistic ignorance means Salehi's available defence was inhibited to the point that the trial became unfair.9.The errors in translation demonstrated in the said Affidavit are of such an order and importance that they render the whole of the evidence of the subject interview so unreliable as to be inadmissible.10.In so far as the jury had before it evidence against Salehi which was of the nature of admissions and which was so critical to the case against him and so unreliable, the trial process was unfair and the resulting verdict unsafe and unsatisfactory."

Decision

Reasons for decision

PIDGEON J

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Ratio Decidendi

Legal Principle Established

Established by: PIDGEON J

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