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 returned their verdicts on 29 January. Both accused persons were convicted as charged, of aggravated burglary and wilful murder.
Later on that day the two convicted persons were sentenced for the burglary to 5 years imprisonment to be served concurrently with the penalties imposed for the offence of wilful murder. The applicant does not seek leave to appeal against his conviction of, or sentence for, the offence of aggravated burglary. There was, of course, in respect of that term, no order of eligibility for parole.
In respect of the offence of wilful murder Alikhani was sentenced to strict security life imprisonment with a non‑parole period of 20 years. Alikhani seeks leave to appeal against both that conviction and sentence, but those applications have not yet been heard by the court. Salehi was sentenced to life imprisonment upon his conviction of wilful murder and a non‑parole period of 15 years was fixed. Again, he does not seek leave to appeal against that sentence. The present application is confined to his conviction of wilful murder.
However, I note in passing that the less severe sentence imposed upon Salehi was grounded by the trial Judge upon the following basis of fact:

"As to Salehi, I am satisfied that he went with Alikhani to the house with knowledge that Alikhani intended to confront Mrs Reynolds there and to ensure that Alikhani could enter the house confident that Mrs Reynolds would be there alone. He had the intention of acting as lookout so that Alikhani could carry out whatever his intention might be in the course of that confrontation. I am satisfied that he encouraged Alikhani to proceed with the confrontation, whatever it involved. He was aware that Alikhani was armed with a knife and himself carried one which I am satisfied by inference he carried for use, either physically or by way of threat, if disturbed. At the latest, when at the house and before Alikhani forced entry he was aware that Alikhani intended to kill or might kill Mrs Reynolds, this resulting from a conversation with Alikhani. He nevertheless remained there and even entered the house for a period, thereby affording Alikhani further encouragement before returning to the outside where he kept watch. He kept watch to enable Alikhani to carry out his intention uninterrupted. However, I find the criminal gravity of his involvement to be less than that of Alikhani and I agree with the prosecution view that a sentence of life imprisonment is appropriate in his case."

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:
Particulars
1.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 EVIDENCE
In 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."
I have mentioned that this was a joint trial. Neither accused person apparently made an application for a separate trial at any stage of the trial. Both accused persons are of the Iranian nationality. They were assisted throughout the trial by interpreters. Alikhani gave evidence in his own defence. The applicant declined to do so.
I shall not, I think, find it useful or necessary to discuss each of the grounds of the application in detail. They raise three separate issues which will need to be addressed -
(1)Concerns about the admission into evidence against Alikhani of his out of court statements to the extent that they implicated the applicant. The instructions given to the jury by Franklyn J are not directly criticised. What is argued is the proposition that no direction by his Honour could remedy the prejudice which was occasioned to the applicant by the admission of that material into evidence. Therefore, it is submitted, the proper course, despite the absence of any application to that effect, was to exclude at least the offending parts of such statements because they were inadmissible against the applicant, or upon the discretionary ground that their admission into evidence would be unfair to the applicant. The criticism offered of the directions to the jury by the trial Judge is that his Honour failed to isolate for the jury that evidence which was legally available to them in considering the case against the applicant. Grounds 1, 2, 5, 6 and 7 appear to be those directed to these propositions.
(2)Those submissions and the argument about the magnitude of the prejudice caused to the applicant are linked to the evidence of Dr Margolius, the forensic pathologist, who discussed the multiple wounds to, and injuries received by, Mrs Reynolds and ventured opinions as to how they might have been received, suggesting that at some points at least of the attack upon her, parts of her body must have been restrained or in particular positions with respect to the attacker, and discussing whether the indications were that only one person was involved or whether there might have been two people involved in the attack. This evidence is said to be inadmissible because the opinion was "inexpert" and speculative. The evidence lacked probative value, so it is argued. Grounds 3 and 4, and again, 5, 6 and 7 appear to be those concerned with this submission.
(3)Finally, leave is sought to adduce what is described as fresh evidence in the form of an affidavit by a Ms Shahen Wheatley, sworn on 28 September 1999, which is concerned with an aspect of what is said to be Iranian law and what are said to be errors of translation during the interview of the applicant by the police, which are asserted to have the effect that the whole of the evidence of that interview was so unreliable as to lack probative value and to be inadmissible.
Before turning to a discussion of these issues, it is necessary to say something about the Crown case and mention the evidence which was called. Mrs Reynolds met her future husband while he was in Kazakhstan on business. She and her daughter came out to Australia and she was married here. She attended English classes at Balga TAFE. Alikhani and Salehi were friends. They had come from Iran to Australia at the same time. Alikhani and Mrs Reynolds commenced a sexual relationship.
The Crown case was that she ended the relationship, but Alikhani would not accept its termination and he commenced to harass Mrs Reynolds and her husband in a variety of ways, making telephone calls, following them about, attempting to speak to Mr Reynolds and the like.
They endeavoured to protect themselves from this harassment. Their telephone was converted to a silent number. Mrs Reynolds transferred to the Perth TAFE and in December 1996 she obtained a restraining order against Alikhani. The order was not served until 29 December 1996. PC Hancock noticed Alikhani driving a motor vehicle in which Salehi was a passenger. They were in the vicinity of the Reynolds' residence. Constable Hancock knew of the restraining order and he stopped the car. Alikhani had no sufficient licence. He was taken to the police station where Constable Hancock served him with the restraining order. He explained it to Alikhani in English and Alikhani appeared to be able to understand.
On 31 December 1996 PC Scott stopped Alikhani, who was driving his motor vehicle in the vicinity of the Reynolds' residence. In the vehicle he had a large kitchen knife and a pair of gloves. He was brought to the police station and charged with breaching the restraining order and the possession of an offensive weapon. On this and a later occasion, in January 1997 when Alikhani was again charged with a breach of the restraining order, it does not appear to have been suggested that Salehi was present. At some stage it would appear that Mrs Reynolds withdrew the restraining order she had obtained only to seek another in April 1997, an order which appears never to have been served.
Mrs Reynolds was killed during the morning of 2 May 1997 in a study in her home. She was alone. Mr Reynolds was at work when he learned of his wife's death. On the previous evening Alikhani and Salehi had been with a friend, a Mr Popovici, who lived in the same block of flats as Salehi. Salehi indeed spent the night in Mr Popovici's flat after Alikhani left. When Mr Popovici arose on the following morning, Salehi was gone and he was not in his own flat. About 11.00 or 12.00 am, Mr Popovici saw the two men arrive at the block of flats in Alikhani's car. They went to Salehi's flat. Alikhani left a few minutes later.
Later on 2 May, at about 1.00 pm, another friend of Salehi, a Mr Music, visited the block of flats and saw Salehi with Popovici and others who were drinking. Salehi was not drinking. When Music asked him why, he said he had a problem, "Maybe I go to gaol". He would not say why.
Contemporaneously with these events, Alikhani attended at the Perth Police Station. He spoke to PC Mulhall and confessed that he had murdered his "girlfriend", Mrs Reynolds, at her house by stabbing her with a knife. He had an injury to his thumb which he said he cut while he was stabbing Mrs Reynolds. He was at that time wearing clothing which belonged to Mr Reynolds, which he had donned when his own clothing became bloodstained during his attack on his victim.
Detective Stone attended at the Reynolds' unit. It was evident that entry had been gained by forcing the rear sliding door. Upstairs in the third bedroom or study the deceased was found under a mattress on the floor. She had many stab wounds; indeed there were 68 separate sites of injury to the left side of her neck, on the front of her chest, particularly about the left breast, to her arms, her back, her buttocks, and even her legs. There were injuries other than stab wounds.
On 2 May 1997 Alikhani was further interviewed by Detective Sergeants Savage and Smith at the homicide squad office in Perth. It was a relatively short interview because it soon became evident that an interpreter was required. One was arranged, a Ms Kazemi. She was a well qualified interpreter of Farsi, the Iranian language spoken by both Alikhani and Salehi. She had been interpreting in courts since 1987. She had known both men since 1995 when they first came to this country. She had no difficulty, she said, interpreting for Alikhani on this occasion. At the conclusion of the video‑recorded interview, which occupied most of the afternoon, Alikhani was informed that he was to be charged with "a serious assault" pending the post‑mortem examination of Mrs Reynolds. I shall return to what Alikhani said at this interview shortly.
On the following morning at about 9.00 am, Alikhani was again interviewed by Detectives Gartlan and O'Reilly in the presence of a Justice of the Peace, a Mr Hewitt, at the Reynolds' home. All three of those persons gave evidence that Alikhani appeared to have no difficulty communicating with the police officers in English. Again, I shall return in due course to the content of that interview.
The police found a knife inside a doona cover at the crime scene and Salehi was carrying a small knife when he was apprehended by the police at his flat on 2 May 1997. A video‑recorded interview was conducted with him on that evening, again by Detectives O'Reilly and Gartlan, with Ms Kazemi as the interpreter. Again her evidence was that she knew Salehi, had interpreted for him before, and had no difficulty interpreting on this occasion or indeed at a later video‑recorded interview which was conducted on 9 May at the Canning Vale Prison where Salehi was being held on remand. Again it will be necessary to return in due course to the content of these interviews. That of 9 May was played to the jury, in edited form at the request of the defence. The voir dire proceedings to which I have previously referred were not concerned with the admissibility of this interview.
It should be noted that when Salehi and his flat were searched, no evidence was found of injury to his person, damage to his clothing, bloodstains or the like. There were no traces of blood on the knife found on his person and no identifiable fingerprints belonging to him were found at the Reynolds' residence.
By way of contrast, there was a considerable body of circumstantial evidence which was capable of implicating Alikhani. I have mentioned the cut to his hand and the finding of the knife at the scene. There was a red mark on his left hand which a forensic odontologist said was consistent with a human bite mark. Abrasions on the outer left lower leg of the deceased woman presented markings which matched the serrations on the knife which was found at the scene. There would seem to be no doubt that the knife was the murder weapon. DNA testing revealed blood on it which was consistent with having come from both the deceased and from Alikhani. His blood was found elsewhere in the premises.
The Crown case as opened and as supported by the evidence led, was that on the morning of 2 May Alikhani engaged the assistance of Salehi, armed himself with a knife which he himself described as a killing weapon and drove to the Reynolds' residence. When they first arrived Mr Reynolds was evidently at home. They left and waited for him to go to work and for Mrs Reynolds' daughter to leave for school. When they returned, Salehi confirmed that the way was clear. Both went into the backyard of the residence. They broke and entered the rear door. Both were armed and their intention was that Alikhani would attack Mrs Reynolds.
They located her in the upstairs study. Alikhani did indeed attack Mrs Reynolds. Despite her struggles he stabbed her many times, changing the weapon from his right hand to his left when he became tired. He targeted her neck, chest and groin. The attack was ferocious and sustained, but not frenzied, an attack cold‑bloodedly committed for the avowed purpose of killing his victim.

Salehi was present initially in the room and may well have assisted to hold Mrs Reynolds' legs during the initial stages of the attack, but he soon left and returned outside the house where he kept watch. The Crown case against him was that he was guilty of wilful murder because he aided Alikhani. He may well have done so directly in the initial stages of the attack, but he certainly did so, so the Crown averred, by keeping watch, well knowing what was happening inside the house. So far as Alikhani was concerned, it was said that the killing was motivated by the history of the relationship between him and the deceased of which Salehi well knew.
The case against Alikhani was of very considerable strength. Apart from the evidence to which I have referred, there was direct confessional evidence that he acquired the knife for the purpose of killing her and that he killed her intending her death; that he continued to stab her until he was well satisfied that she was dead, as he confessed initially when he went to the police station and as he confessed in the videoed interviews conducted on 2 May and at the scene on 3 May 1997.
So far as Salehi was concerned, there was some evidence tending to implicate him outside his own statements, but that was merely evidence of his friendship with Alikhani and his association with him at significant times prior to 2 May 1997, together with the evidence of Popovici of the two friends being together on 2 May 1997 and Salehi's guarded admission to Music made shortly after the events in question.
The principal evidence against Salehi was confessional in nature. When he was first interviewed on 2 May 1997 he denied having anything to do with the burglary or the killing. He maintained those denials on that day and made no admissions until he was interviewed again on 9 May 1997. I shall, of course, return to the content of that interview in more detail when discussing the third issue raised by the grounds of the application, but it is sufficient for present purposes to note that although he made no confession that he directly assisted Alikhani in the killing, he did agree that, knowing that Alikhani intended to kill Mrs Reynolds and then that he was in the process of doing so, he remained on watch, generally outside, but entering the ground floor of the unit on one occasion. It was imperative then that the jury, if they were to find Salehi guilty beyond reasonable doubt, accepted that confessional material as a reliable account of Salehi's role in the commission of the crimes.
The only other evidence available against Salehi, to which I have not already referred, was that given in his own defence by Alikhani. That evidence confirmed that Salehi was with him on 1 May 1997 when he investigated the Reynolds' residence and found no‑one at home. He said he collected Salehi at 5.00 am on the following morning, 2 May. They drove to Mr Reynolds' place of work where Alikhani had planned to assault Reynolds and steal his house keys. He changed his mind and they drove to the Reynolds' residence.
The purpose of bringing Salehi was that Alikhani feared he might be recognised by Mrs Reynolds' neighbours. He sent Salehi to investigate the Reynolds' residence. Salehi came back and reported that it appeared that Mr Reynolds was still home. They left and returned later. This time Salehi reported that Mr Reynolds' car was gone. They went to the back of the house. Alikhani cut what he thought was a telephone line because he did not want Mrs Reynolds to telephone the police. His plan was to enter the house, find her inside and tell her that she must leave him alone. He told Salehi of this plan and Salehi approved.
They broke in through the back door of the unit, taking care to leave no prints. Alikhani carried the knife to defend himself because Mrs Reynolds had previously threatened to send people to kill him. Salehi remained on the ground floor of the unit. He at no time came upstairs. Alikhani, however, went upstairs and found Mrs Reynolds in the study. He described how he came to stab her once, but he could remember nothing more until he realised she was dead. When finally he returned downstairs, Salehi had already left the house. It is evident that upon that evidence, without regard for the confessional evidence, Salehi could be firmly placed at the scene but could not have been convicted of the aggravated burglary charged or of any form of homicide.
Alikhani was, of course, cross‑examined about his confessional statements. For present purposes it is relevant only to note that he said in evidence that he implicated Salehi as assisting in the actual killing because he was angry at Salehi for allowing him to go into the house in the first place and for his refusal to accompany Alikhani when he went to the police to give himself up. There came a point during his cross‑examination by the Crown in relation to his out of court confessional statements when Alikhani refused to answer any further questions. In particular, he declined to answer questions about the role Salehi may have played in the study during the course of the killing. Not unnaturally, counsel for Salehi had no cross‑examination and Alikhani concluded his time in the witness box by declining even to answer questions put to him by his own counsel in re‑examination.
I turn then to the issue concerning out of court statements made by Alikhani implicating Salehi. On 2 May 1997 Alikhani spoke of being assisted in the burglary by a friend. He said the friend came to where he was with Mrs Reynolds when she started to scream. He would not name the friend because he did not want him to be involved. He enlisted the aid of his friend because he had promised to help. The friend was also armed with a knife. He took the friend because he feared that he would be identified by neighbours and prevented from entering the house if he was seen in the area. He spoke of the plan to obtain the keys from Mr Reynolds and of the change of plan. When asked why his friend had a knife, Alikhani said to the police:
"Because my friend is not a fool and he know if you trespass in somebody's house, if you enter into somebody's house and if there is someone in the house and something would happen, so he was afraid. He had the knife with him."
Alikhani said that his friend knew he had his own knife which he described as a killing knife and when asked if he had discussed with his friend why he had the knife, Alikhani said:
"No; because he's a grown up and he can think about himself, and he knows if you want to enter into somebody's house illegally, so anything can happen to you."
Alikhani said that he had discussed with his friend the possibility that a knife would be used on someone in the house. When asked what the discussion was he said:
"We have talked to each other and said: 'Once we enter into this house, if nobody is in the house because we are entering without permission, so we will not use -- if nobody is in the house, we will not use the knife. But if somebody is in the house, because we have entered into this house without permission, we will use our knives.'"
He was asked what he meant when he said they would use their knives and he answered, "To kill Tatiana." (Mrs Reynolds). Later, Alikhani told the police that he had discussed with his friend that his intention when he went into the house was to have his revenge by killing Mrs Reynolds and that his friend agreed to help him, but not himself to kill her. While he cut the telephone wire his friend kept watch. They broke in using the flat end of a wheel brace, which his friend helped to obtain, again while the friend kept watch.
When they went upstairs and found Mrs Reynolds, she screamed and struggled. Alikhani told the police, "My friend came and just took her leg, but he didn't use his knife or stab or do anything." He said that after he first stabbed Mrs Reynolds he told his friend to leave. He said that his friend had held the woman's legs because she was kicking, "protecting herself". He thought his friend held the woman by her ankles or feet. He told his friend to leave when he did not need his help any more and also because he did not want his friend to see Mrs Reynolds as she was naked from the waist down.
When, after he ultimately left the house, he met his friend again, the friend declined to come to the police with him and urged Alikhani not to give himself up. Alikhani refused whereupon his friend extracted a promise that he would not be named to the police. As has been seen, Alikhani did not name his friend at that time, but he identified him as Salehi when the video‑recorded interview was conducted with him at the scene on the following day. The substance of that second statement, in so far as it implicated Salehi, was the same as the first.
When the Crown prosecutor opened this evidence to the jury he told them that what Alikhani said in his out of court statements could be taken as evidence against Alikhani, but provided no evidence against Salehi. Immediately after the opening address, Franklyn J repeated that instruction in some detail with respect to what Alikhani was alleged to have said in out of court statements implicating Salehi, and vice versa. The instruction was clear and correct in law. Neither defence counsel took any exception to it at the time.
That warning was repeated by Franklyn J at the close of proceedings on the following day immediately after Alikhani's out of court statements were first introduced into evidence through the first of the interviewing officers, Detective Sergeant Savage. Again the warning was clear and given in legally appropriate terms. On the next day of the trial, again at the close of proceedings, and this time immediately after Detective O'Reilly first gave evidence of the out of court statements made by Salehi on 9 May 1997, Franklyn J warned the jury that they might not use as evidence against Alikhani anything they found Salehi had said in his out of court statement which tended to implicate Alikhani. His Honour told the jury that would be evidence against Salehi, but not against Alikhani.
When his Honour came to direct the jury after the close of all the evidence, he commenced his directions by instructing the jury that although the two accused persons were jointly tried, the guilt of each could be established only upon the evidence separately available against each accused person, as if each had been separately tried. His Honour later specifically again warned the jury that what they found that Alikhani had said out of court tending to implicate Salehi was not evidence against him. That was contrasted with the evidence given by Alikhani in the courtroom. It is convenient that I should set out that direction:
"I am referring firstly to the out of court video statements of the accused Alikhani. Although what he has said there is evidence against Alikhani and may be used by you to assist in determining his guilty or innocence, nothing in his statements can provide any evidence whatsoever against Salehi.
For example, and this is for example only, that Alikhani says that Salehi came upstairs and held Mrs Reynolds' leg or legs whilst he stabbed her is no evidence against Salehi that that is what occurred and you must ignore that evidence when considering the case against Salehi, and indeed you must ignore any other statement made by Mr Alikhani in his out of court statements, videoed interviews, implicating or stating what Salehi did or didn't do. It is just not evidence against Salehi and it is not open to you to use it against Salehi.
However, what Alikhani says in the witness box in giving evidence at this trial as to Salehi's involvement, to the extent that he did, if accepted by you as true is evidence against Salehi and may be used by you in determining whether Salehi is guilty of either offence charged or any alternative offence."
It is important for present purposes to note that the specific example given was that which concerned the question whether or not Salehi had directly assisted Alikhani with the killing in the study. Again, that instruction was reinforced by giving the same instruction about what Salehi may have said in out of court statements implicating Alikhani. His Honour then reminded the jury that Salehi had given no evidence at the trial and said that in that event there was no evidence emanating from Salehi's statements which was available against Alikhani.
The instruction was repeated, or his Honour discussed the evidence in terms which were consistent with the instruction, on no less than four further occasions during the course of his Honour's address, which included detailed reference to the evidence in the context of the various issues raised.
This was a case where Alikhani and Salehi were charged with the offences in question in the same indictment and their joint trial was sought on the ground that the offences arose substantially out of the same facts: Criminal Code, s 586(7). It was therefore a classic case for a joint trial unless on the ground of prejudice to either accused person the trial was severed. As I have mentioned, no such application was made. The authorities concerning such matters need not be discussed, but it would be rare indeed that this Court would hold that despite the absence of an application, the situation was such that the trial Judge should, of his own motion, have severed the trial where the ground is said to be that there was evidence admissible against a co‑accused which implicated the present applicant without being evidence against him.
I put to one side in this regard the question of the admissibility of the opinion evidence of Dr Margolius which to my mind raises a quite different question. Here the contention of the applicant is that the prejudice was so grave that it was incapable of correction by a proper direction given by the learned trial Judge. For myself I could not accept that submission. The evidentiary point was clear and easy to grasp. The jury were properly instructed on numerous occasions. There is no reason to suppose that they could not understand and give effect to the instruction they were given. After all, all they had to remember when listening to the recorded interviews was that they could only provide evidence against the particular accused person who was the speaker on the occasion in question. I think it is important not to lose sight of what Barwick CJ said in Demirok v The Queen (1977) 137 CLR 20 at 22:
"In the administration of the criminal law, it must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the Judge's direction. The law cannot be administered upon any other basis."
I would not grant leave and uphold the appeal upon the grounds which raise this particular point.
I turn now to the concerns raised about the evidence of Dr Margolius, the forensic pathologist who undertook the post‑mortem examination of the deceased woman and who also attended the crime scene while the body was still there on 2 May 1997. As I have mentioned, at post‑mortem Dr Margolius noted 68 separate sites of injury, most of them knife wounds and a number of them presenting evidence of more than one stabbing wound within the same area of injury. She was able to say that many of the wounds were consistent with having been inflicted by the large knife found later at the scene in a doona in the study and which was identified as belonging to Alikhani. The knife was bent, consistently with it having struck bone.
There were "hilt abrasions" associated with some of the wounds on the skin of the deceased indicating that the knife had penetrated her body to the hilt. Some injuries to the hands, arms and legs of the deceased were regarded as defence wounds consistent with Mrs Reynolds having tried to protect herself from the knife attack. I have mentioned the various parts of the body where the penetrating wounds were concentrated. The doctor thought that the injuries to the arms, the legs and the genital area would have occurred earlier in the attack than those to the left front of the chest and the neck because they were, or were associated with, the defensive wounds.
For present purposes I should look more closely at the doctor's evidence in respect of the wound she designated on a diagram of the injuries, part of exhibit Q, as wound 15. This was a wound received to the lower portion of Mrs Reynolds' right buttock. There was an indication that Mrs Reynolds moved at the time this wound was received. It was an earlier wound. It penetrated deeply into her body in an upward direction, through the inside lining of the abdomen, and penetrated completely through the bladder.
Because of its position, Dr Margolius' opinion was that unless Mrs Reynolds was standing with her back to her assailant so that the blow was struck in an upward motion, with the flat of the blade in a horizontal plane, from behind her, her legs, particularly her thighs, would have to be open when the blow was struck. So if the blow was struck from in front of her, she would have to be lying on her back with the upper portion of her legs apart.
The injuries to much of the woman's legs, including bruising and the serrated abrasions matching the knife to the lower parts of the legs, were described as defensive injuries. When asked whether, having regard to the presence of defensive injuries to the legs and the position of wound 15, the evidence was in her expert opinion consistent with Mrs Reynolds' legs being held apart by a second person when the wound was inflicted, Dr Margolius expressed the opinion, in giving her evidence in chief, that the legs must have been restrained in some way, otherwise the wound could not have been received in the position it was unless from a blow struck in the way I have described from behind.
Her opinion was that both legs would need to be held with the thighs apart. Given that the person inflicting the wound would only have one free hand to restrain one limb, the other leg must have been restrained by another person or in some other way. It could be tied, weight could be put upon it, but there were no marks to suggest either means of restraint and given the extent and the multiplicity of the defence type wounds, and that there was quite a struggle, she would have expected to see some bruising from some such means of restraint.
On the other hand there were bruises to the lower portion of the front of the legs which were consistent with finger marks, as of the legs being held at that point. There were no finger mark bruises on the upper portion of the legs, no marks there as if from a ligature of some kind and no evidence of bruising as from the firm weight of a knee or something of the kind. Dr Margolius made it clear that the thighs would not only have to be apart when wound 15 was received but, in her view, they must have been raised above the surface upon which she was lying.
A further feature of significance was two injuries, numbers 21 and 22, on the inside of her upper thighs and towards the front of the body in the genital region. These injuries, Dr Margolius thought, were associated with wound 15 in that they were consistent with injuries caused by the hilt of the knife hitting the two inner thighs as the deceased endeavoured to close her legs at the time when she was receiving wound 15, by way of a reflex mechanism to the penetration of the knife. Again, that was further evidence to support the doctor's conclusion that wound 15, although at the back of the leg and under the buttock, was the result of a blow struck from above Mrs Reynolds and in front of her as her thighs were parted and at least somewhat raised.
Dr Margolius was cross‑examined about these injuries by counsel for Alikhani and she was re‑examined by the Crown prosecutor. She made it clear that in her view injury 15 was received not only while Mrs Reynolds was alive, because of the bleeding into the bladder as that organ was penetrated, but also, because of the association of the wound with the defence injuries to the legs which were described, including particularly injuries 21 and 22, while she was conscious and still attempting to defend herself. Because of the site of the wound and the path it took into Mrs Reynolds' body, she repeated her view that it was received from the front and not behind and its position led her to express the opinion that the upper part of Mrs Reynolds' legs were both apart and somewhat raised when the knife penetrated her body.

She reiterated her opinion that the legs were in some way restrained at this time and it is clear that she based that conclusion upon the physical evidence that she observed at post‑mortem. There was no indication of restraint to the upper portion of the legs and she was not able to say how the restraint may have been applied. She said expressly that she could not say that two people must have been involved at this time, "but it is one person at least with a restraint".
Immediately Dr Margolius concluded her evidence, Franklyn J told the jury that they should not overlook that whether the legs were up or down or whether there was more than one person involved at any particular time, were merely matters about which, from her expert stand point and having examined the body of the deceased, Dr Margolius gave her opinion. The jury need not accept that opinion or that it led to any particular conclusion of fact which was for them to determine.
One of the criticisms offered by the applicant of the evidence of Dr Margolius is that in the areas discussed above, of relevance to the applicant's case, the evidence was inadmissible as "inexpert speculation" and should have been excluded. I cannot accept this proposition. The evidence discussed is clearly opinion evidence, but it is equally clearly based upon the undoubted expertise of Dr Margolius as a duly qualified medical practitioner and forensic pathologist. It was based upon her knowledge of wound 15, its association with other apparently contemporaneous and related wounds and injuries, her knowledge of human anatomy and movement. Her opinion was clearly admissible to the extent that she was permitted to give it. What weight it carried to establish the presence of Salehi at the relevant time was of course quite another matter.
As to the direction required of the learned trial Judge to assist the jury with this evidence, his Honour gave them a direction in appropriate terms, of which no complaint is now made, about proof by way of circumstantial evidence and the drawing of inferences and conclusions from such evidence. His Honour expressly tied that direction to the evidence of Dr Margolius. He told the jury that while her expertise was unchallenged, her opinions were in the end only inferences which she thought might be drawn from the physical evidence before her at post‑mortem. Particularly in respect of the proposition that two persons might have been involved in the attack upon Mrs Reynolds, his Honour warned the jury that it was for them to draw the conclusion, if it was open, and that it was a conclusion only to be drawn by way of inference from the evidence Dr Margolius gave. His Honour said, "you could only rely on it if you are satisfied beyond reasonable doubt that the inference she suggests is the only inference open to you on the evidence."
In discussing the Crown case and the reliance placed upon the evidence and opinion of Dr Margolius to establish the presence of Salehi, his Honour reminded the jury of the evidence and observed:
"I suggest that you treat Dr Margolius' evidence ‑ and this is no disrespect to Dr Margolius ‑ because it is almost entirely inferential evidence in the area we are now concerned with, with great caution, recognising that you can only conclude from her evidence that Mr Salehi played that physical part in holding her legs if you are satisfied beyond reasonable doubt that it is the only inference open on the evidence."
To my mind that was an entirely appropriate way of dealing with this evidence, and the criticism offered by the applicant that the learned trial Judge should have directed the jury that as a matter of law the evidence could not be used against Salehi, is entirely without merit. It would require of his Honour a direction which would indeed be wrong in law.
Indeed, what his Honour said about this aspect of Dr Margolius' evidence was conservative and perhaps more than fair to the applicant. She had given her expert opinion upon the matter of restraint when at least wound 15 was inflicted upon Mrs Reynolds in association with the injuries 21 and 22 and the other defensive wounds and injuries to the legs in particular. If the jury accepted that opinion, it was open to them to conclude that at the time wound 15 was inflicted, at least for that short period, Mrs Reynolds' legs were restrained in the position described. It was open to them to conclude that the restraint could not have been entirely imposed by Alikhani as he inflicted the wound. They could then consider whether there was some other mechanical means (a power cord was suggested) which might have aided the process of restraint. If they rejected that proposition, it was open to them to conclude that there must have been a second person present. Other evidence suggested that that person could not have been other than Salehi.
In my opinion, the important part of the process leading to that conclusion would be the jury's acceptance that the restraint involved could only be by human agency and by more than one person so that the second person must have been Salehi. It was to those parts of the reasoning process that the standard of proof beyond reasonable doubt and the direction about the circumstances in which an inference of guilt might be drawn were to be applied: Shepherd v The Queen (1990) 170 CLR 573.
It follows from these conclusions that not only is it my view that grounds 1, 2, 3 and 4 may not be upheld, but grounds 5 ‑ 7 inclusive are also without merit. So far as ground 5 is concerned, it is clear from a perusal of his Honour's charge to the jury that the learned trial Judge carefully particularised for the jury the evidence which was legally available to them when considering the Crown's case against each accused person.
I turn to the question of fresh evidence. It will be recalled that the Crown placed considerable reliance upon the video‑taped interview of Salehi by Detectives O'Reilly and Gartlan with the assistance of the interpreter, Ms Kazemi, which was held on 9 May 1997. I have said that unless the jury accepted that evidence as being reliably interpreted, then they could not convict the applicant of either offence with which he was charged.
Although he had previously denied any involvement in these crimes, or that he was even with Alikhani at the relevant times, on this occasion when interviewed the story he told through the interpreter was that he was with Alikhani who collected him early in the morning. He agreed that when they first drove to the Reynolds' residence it was evident from the cars that Mr Reynolds was still home. When they returned the second car was gone. They went into the back yard and gained entry into the house through the back door. Both went inside. Salehi did not go upstairs, but he saw Alikhani do so. He then went outside into the garden. He heard a woman screaming, ran away and caught a bus to Mirrabooka. Later, he there met up again with Alikhani. He knew of the association between Alikhani and Mrs Reynolds.
When asked whether he had discussed with Alikhani that Mrs Reynolds would be killed, he said that occurred in the morning. Alikhani had said, "I'm going inside. Whoever would be in the house, I will kill, and I have had it until here in my throat and I cannot have any more patience and I love this woman".
When asked about what he said later to Music about going to gaol, he said he had made this statement because of what he had done and because he knew that Alikhani was going to hand himself in to the police. Although Alikhani had said to him that he would not bring Salehi's name into it, Salehi was sure he was going to prison. He added, "I then spoke to the police and said, 'I have killed someone'." As to that statement, prosecuting counsel told Franklyn J at trial that the Crown would not rely upon those words, although it took the view that they had been accurately interpreted and Salehi had said them. It was thought that there must have been confusion because it was clear that when earlier interviewed on 2 May 1997, Salehi had said no such thing.
Salehi denied holding Mrs Reynolds' legs while Alikhani stabbed her. He twice said that Alikhani had only said he was involved in that way "because his sentence would be less". He did not go upstairs. Indeed, while he waited in the garden until he ran away he said that was not because Alikhani had asked him to look out for the police and neighbours, in other words to act as a lookout. However, the recorded interview contains the following exchange:
"Question: You knew that [Alikhani] was going to the unit to kill [Mrs Reynolds]. You stood in the yard as a lookout to see whether police would come.
Answer: Yes."
On that evidence, together with that given by Alikhani at the trial, if that was accepted, at least to the extent that Salehi was implicated, there was clear evidence upon which it was open to the jury to convict Salehi of both the aggravated burglary and the wilful murder.
The so called "fresh evidence" which the applicant seeks to adduce pursuant to the Criminal Code, s 697(c), is in the form of an affidavit sworn by Ms Wheatley on 28 September 1999. She was born in Iran and is a qualified interpreter in the Farsi langugage, as is Ms Kazemi. Ms Wheatley is qualified as a lawyer in Iran. She would testify that under Iranian law, if two people are found guilty of a crime, the punishment may be divided between them according to their level of criminal responsibility, by which I think she means culpability.
It will be recalled that Salehi touched upon this when interviewed on 9 May 1997 when he said that Alikhani had falsely sought to implicate him in the killing by saying that Salehi had held Mrs Reynolds by the legs while Alikhani stabbed her "because his sentence would be less", but there was nothing further said in evidence at trial about this, as I understand the position. Certainly this was one aspect upon which Alikhani declined to answer the prosecutor's questions.
The submission is that if this had been brought out it would give credence to the defence suggestion that Alikhani had a motive to falsely implicate Salehi, but of course the evidence that he did implicate Salehi falsely in that way was given and the motive was attributed to Alikhani.
The remainder of Ms Wheatley's affidavit reviews the video tape of the interview of 9 May 1997 and suggests points at which Ms Kazemi is said to have made errors of interpretation. It is contended that had this evidence been available at trial, the whole of the evidence of the interview should have been considered so unreliable as to be inadmissible. I shall return to that proposition in due course, but for the Crown, objection is taken to the admission of the evidence and if it is to be admitted, evidence upon the matters raised in Ms Wheatley's affidavit is sought to be adduced in the form of an answering affidavit by Ms Kazemi, who was not cross‑examined at the trial and who gave evidence that her interpretation was accurate.
The matters of some significance which Ms Wheatley's affidavit, taken at face value, would appear to be capable of establishing are as follows -
(1)When first asked about the discussion Alikhani had told police that he had with Salehi about killing Mrs Reynolds, the answer as given by Ms Kazemi was "No. No. He's lying. We have never been talking about this.", before however Salehi went on to say that Alikhani did say that he would go inside the house and would kill whoever was there, referring apparently to Mrs Reynolds. I have quoted that portion of the interview previously. Ms Wheatley says that the true answer given was, "No. We didn't discuss it at all. He's lying. I haven't discuss that I will murder anyone. We have never been talking about this." Ms Kazemi accepts that she omitted the additional sentences. It amounts to the proposition that she got accurately the substance of the initial self‑serving denial, although she incompletely relayed in English the words used.
(2)At one point Ms Kazemi has Salehi saying that he ran away when he heard Mrs Reynolds screaming. Ms Wheatley says the Farsi word for "voice" was used. Ms Kazemi agrees. She says the word can be used interchangeably to mean "voice" or "scream". No exception seems to be taken to another portion of the interview where the Farsi word for "screaming" rather than the Farsi word for "voice" is said by Ms Kazemi to have been used. This matter seems to me to have no significance. In any event, Alikhani's evidence at trial was that when he first attacked Mrs Reynolds she was screaming and he was trying to stop her.
(3)Ms Wheatley, in her affidavit, says of the question and answer that I have quoted above, when Salehi agreed that he waited in the garden as a lookout to see whether the police would come, that there is no Farsi word for "lookout". Ms Kazemi agrees. It is accepted that she used Farsi words conveying the idea of "standing around looking for if police come or not". I would have thought that was a lookout, and as the interview shows, Salehi said this is what he did.
(4)At one point the police asked Salehi whether Alikhani asked him to look out for the police and the neighbours. Although he had previously admitted that he had been acting as a lookout for the police, he answered "No. He didn't. Not at all. I was doing this not ‑ ‑", and he was then interrupted by another question. Ms Wheatley says that he did not say "I was doing this not" but he said "I thought about neighbours myself." Ms Kazemi does not agree that there is any inaccuracy in her interpretation or that she omitted anything, but if the words suggested by Ms Wheatley were used, they tend to convert the denial into an admission that he was acting as a lookout for the police and the neighbours, although Alikhani had only asked him to keep watch for the police and he thought himself that he should keep an eye out for the neighbours.
I do not propose to discuss the other matters raised by Ms Wheatley's affidavit which seem to me to be of no significance, either substantively or to advance the proposition that this Court should take the view that although the issue was not raised at trial, the interpretation of the interview with Salehi on 9 May 1997 was so unreliable that this Court should hold the evidence to be inadmissible, and because of its importance as a body of evidence sustaining the jury's verdicts, quash the convictions. It would certainly follow that if the court was persuaded of unreliability to that degree the convictions could not be allowed to stand because the evidence otherwise available would be insufficient to satisfy a reasonable jury of guilt beyond reasonable doubt.
In my view the matters which might be established in this regard, taking Ms Wheatley's evidence at its highest, are not capable of leading to the view about the admissibility of the evidence urged upon the court for the applicant. Such errors as might have been made in interpretation do not seem to me to detract substantially or at all from the accuracy of the important sections of the answers which contain the declarations against interest by the applicant. In particular, they do not detract from the reliability of the account of his admission that Alikhani did before they entered the house tell Salehi, in effect, that he would kill Mrs Reynolds if he found her inside. Nor do they detract from the evidence that Salehi confessed that his role was to act as a lookout, knowing the purpose for which the house was broken and entered and for which Alikhani sought to find Mrs Reynolds. Indeed, if Ms Wheatley is right about this aspect, it rather strengthens the effect of the admissions made.
The evidence now advanced is certainly not fresh evidence. There is nothing to suggest that it could not with reasonable diligence have been available to the applicant at trial, nor, as I have indicated, does it seem to me to be of sufficient strength that it might require interference with the verdict even though not fresh evidence as that concept is traditionally understood: Gallagher v The Queen (1986) 160 CLR 392. I would not admit this evidence upon the application for leave to appeal.
It follows that in my view leave to appeal should be refused in this case.