Sleiman v The Queen

[2004] HCATrans 550

[2004] HCATrans 550

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S633 of 2003

B e t w e e n -

EMAD SLEIMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 3.08 PM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear for the applicants.  (instructed by Hopper & Co)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Office of the Director of Public Prosecutions (NSW))

McHUGH J:   Yes, Mr Wendler.

MR WENDLER:   Your Honours, before I open the application, there is an issue concerning an extension of time.  I understand ‑ ‑ ‑

MR LAMPRATI:   We do not oppose ‑ ‑ ‑

McHUGH J:   Yes.

CALLINAN J:   No problem about that.

MR WENDLER:   Yes, thank you, your Honour.  Your Honour, the special leave questions can be identified as three in number and can be described as follows:  first, whether in all the circumstances, there has been a miscarriage of justice by reason of the trial judge’s refusal to leave the alternative viable verdict of manslaughter for the jury’s consideration in the trial.  That is the first aspect to the application.  In other words, it is what might be described as a Gillard point, in broad terms. 

The second question that emerges naturally from the first question is whether in this country, a criminal trial procedure mandates that in homicide trials, trial judges are obligated to leave manslaughter to the jury if there is a viable case of manslaughter available, irrespective of how the parties or how defence counsel conducts the defence.  That is of no relevance and not a question if it is open on the evidence that there is a viable alternative level of criminal responsibility in the homicide case. 

So that is the second question and the third question that emerges is the legal relationship between sections 55 and 56 of the Evidence Act (NSW) and the common law fresh evidence rules, what that legal relationship is and whether it modifies the Gallagher/Mickelberg test that have been fashioned in this Court over some years.

It may be convenient to move to the reasons for judgment, the interlocutory judgment by his Honour Justice Sperling in the trial, which moved his Honour to refuse to leave manslaughter to the jury.  That appears at page 204 of volume one of the three application books, and I just invite your Honours to that ruling.  The background circumstances as your Honours know from the papers is that trial counsel invited the trial judge, in the circumstances of the trial, to leave for the jury’s consideration the alternative verdict of manslaughter.

At page 204 at line 40, it can be seen or observed the reason why his Honour declined to leave that alternative verdict, mainly because the defence had conducted the case on the basis that either the applicant was the stabber or he was not, and therefore, it was a murder or nothing situation.  With great respect to his Honour, that was wholly irrelevant to the consideration as to whether or not manslaughter should be left.  His Honour then proceeded to identify passages from Pemble v The Queen at the bottom of page 204 and then over to 205.  There are statements there attributed to the Chief Justice, Mr Justice Menzies which, with great respect to his Honour, were not part of the judgment and have ‑ ‑ ‑

McHUGH J:   Well, the Court of Criminal Appeal explained that.

MR WENDLER:   With respect, the Court of Criminal Appeal described the interlocutory judgment as clear and concise, and there is no treatment by the Court of Criminal Appeal about the correctness in law of those statements.  It is clear from the judgment of the Court of Criminal Appeal there is no scrutiny of those two statements in Pemble and there was reproduced in the judgment of the Court of Criminal Appeal a verbatim statement to – well , the judgment of his Honour Justice Sperling devoid, with respect, of any scrutiny concerning those two statements allegedly from Pemble.

This was a case that factually revealed that there was a stabbing in a very short period of time with two stab wounds in quick succession, and the alleged culprit decamping from the scene.  The case depended entirely on a body of identification evidence essentially, so far as the identity of the stabber was concerned. 

McHUGH J:   It was a bit more than that, was it not?

MR WENDLER:   Whether there had been more than that, the reality or really the issue really is whether this particular applicant had a trial according to law.

CALLINAN J:   But how could you stab somebody twice in the chest without having an intention to inflict grievous bodily harm?

MR WENDLER:   Well that is an alternative scenario.  The question is whether or not there has been a miscarriage of justice in not leaving the alternative scenario of manslaughter, which was a viable alternative verdict ‑ ‑ ‑

McHUGH J:   But that is the point, and why was it viable?  The Crown case was your client was the stabber.  Your case was, I was not there.  In fact, originally, you said you were not even at the hotel, but the deceased has two deep stab wounds, one 70 millimetres deep, the other one 120 millimetres deep and they could not have been inflicted by accident.  They had to be done deliberately, surely.

CALLINAN J:   And not with the intention of merely doing a dangerous act.  They were much more than that, they were with an intention to inflict grievous bodily harm.

MR WENDLER:   Well, with ‑ ‑ ‑

CALLINAN J:   You cannot go around stabbing somebody twice in the chest without having that intention.

MR WENDLER:   Well, one of the stab wounds was certainly in the chest, the other was might be described the abdomen or lower chest area ‑ ‑ ‑

CALLINAN J:   Abdomen is even just as bad.

McHUGH J:   The 70 millimetre one was between the third and fourth rib, and the 120 millimetre was between the seventh and eighth rib, was it not?

MR WENDLER:   Well, in broad terms, I think that is accurate, but nevertheless, because of the ambivalence that can emerge so far as the mental element is concerned in homicide, it was nevertheless a viable alternative ‑ ‑ ‑

McHUGH J:   I noticed you put that in your application book about the ambivalence of – what do you mean by that, Mr Wendler, precisely?  What do you mean by ‑ ‑ ‑

MR WENDLER:   Well, referable to the mental element of murder and as opposed to the alternative level of criminal responsibility in relation to manslaughter.  I mean, all I am putting to your Honours, it was open on the evidence for the jury to consider manslaughter.  They may have rejected it, but it was open ‑ ‑ ‑

McHUGH J:   I am sorry, I read these volumes through the week in Canberra the other night.  I thought that somewhere you said there was some ambivalence about - manslaughter should have been put because of the ambivalence about intent in murder.  Am I right, or is my recollection wrong?

MR WENDLER:   Well, the evidence of the actual stabbing came from only one witness, a witness by the name of Stacey, who worked at the hotel.

McHUGH J:   Yes, he was a security officer.

MR WENDLER:   He could only describe a situation where there were two, what might be described as very fast – he did not actually see the stabbing as such, and said he did not see a knife, but the inference was ‑ ‑ ‑

McHUGH J:   He just saw the knife on the floor afterwards.

MR WENDLER:   Well, which was apparently, at least on his evidence, on some previous occasion picked up by a person other than the applicant.  In other words ‑ ‑ ‑

McHUGH J:   Like Mr Kalache.

MR WENDLER:   By Kalache, whose name was mentioned in the dying declaration of the deceased, and it was in that context the very quick reflex style of action of the stabbing and the decamping ‑ ‑ ‑

CALLINAN J:   The second could not have been reflex.  I am sorry, one stabbing arguably perhaps reflex, I doubt it.  When you have a knife, you know what you are doing, but a second stabbing as a matter of reflex, I am sorry Mr Wendler, that is just not on.

MR WENDLER:   Well, it really comes down to whether it was a viable alternative to leave that scenario to the jury and if it was, then, of course, consistent with this Court’s authority in Gilbert and Gillard, that would amount to a miscarriage of justice.  There was another alternative scenario that was open, namely that the responsibility, the criminal responsibility was derivative and not primary in the sense that the jury, having regard to the dying declaration, it would have been open for the jury to find that it was Kalache who was the stabber and the ‑ ‑ ‑

McHUGH J:   But no one ever suggested it was a common purpose case, did they? 

MR WENDLER:   Well the Crown opened the case.  Kalache was discharged by direction, but it was a common ‑ ‑ ‑

McHUGH J:   Yes, but after Kalache went out, it was never left to the jury that a possible view was that the applicant was not the person who stabbed but was a party to a common purpose with Kalache to murder the deceased, but without the mental element for murder. 

MR WENDLER:   Well, that is how the case began, it did not necessarily end like that, but it began in that style.  But nevertheless, the application was properly made by counsel on behalf of the applicant to leave the alternative level of criminal responsibility, namely manslaughter to the jury and his Honour refused to do so. 

Now, in my respectful submission, that was inconsistent with this Court’s decision in Gillard, the most recent decision in Gillard, the South Australian case where the criminal responsibility was held to be derivative there, but nevertheless, manslaughter was open even though the trial judge treated the case in South Australia as being a case where it was murder or nothing. 

So the mere fact that there is a formulation or that the trial judge comes to the view that it is not open, as it were, or rather the defence has conducted the case in such a way that it is murder or nothing, does not absolve the obligation to leave manslaughter if there is a viable case to do so.  In my respectful submission, having regard to ‑ ‑ ‑

McHUGH J:   Well, that is the question, is it not?  The trial judge took the view that there was not and the Court of Criminal Appeal upheld him.

MR WENDLER:   By embracing, in effect, statements from Pemble which were erroneous.

McHUGH J:   Mr Wendler, we do not sit here as you well know, as a Court of Criminal Appeal.  You have to do more than show error, you have to show there is something special about the case.

MR WENDLER:   Well, it is the other aspect to the application, not just the miscarriage of justice point, and the miscarriage of justice point will always be a special leave point and it will be demonstrated to be so.  I mean, section 35A of the Judiciary Act mandates as much.

McHUGH J:   No, it is a factor that a court must take into account if there is a miscarriage of justice, but I think miscarriage of justice is a much misunderstood term.  It just does not mean error; otherwise every case would be arguably one for special leave.  It really means such a departure from proper procedure at the trial that the decision which is the result of that departure cannot properly regard it as a judicial decision at all.

MR WENDLER:   Well, I have set out the statement of principle in Bullard, I think the Privy Council decision and that part of Lord Tucker’s speech at 560 in the application book and in my outline of contention and that statement of principle which was embraced ‑ ‑ ‑

McHUGH J:   Well, there is no doubt whatever that if your client was entitled to have the issue of manslaughter left to the jury, and it should have been put to the jury, then there has been a miscarriage of justice because there has not been a trial according to law.  But what is put against you is that the trial judge thought it was not an appropriate case and he was upheld by the Court of Criminal Appeal.  That is your problem.

CALLINAN J:   And it looks right to me, I might say.

MR WENDLER:   Well, your Honours, scenarios involving stabbings do have an ambivalence about them in terms of ‑ ‑ ‑

CALLINAN J:   Why?  Why, a man gets a knife out of his pocket, presumably in his pocket, he is not carrying it around visibly and then he lunges it into the chest and the abdomen of somebody, and you tell me it is ambivalent.  I am sorry, Mr Wendler, that is absolute rubbish, with respect.

MR WENDLER:   It is ‑ ‑ ‑

CALLINAN J:   Nothing ambivalent about two deliberate blows with a knife.

MR WENDLER:   It is the complexion or inferences that one draws from ‑ ‑ ‑

CALLINAN J:   Inference he has intended to do what he was doing.

MR WENDLER:   Yes, but there are many serious assaults involving knives that do not amount to murder or, indeed, manslaughter, and ‑ ‑ ‑

CALLINAN J:   Do not have to.  Is not grievous bodily harm enough?

MR WENDLER:   Well, quite.  I put the application on the basis that it was a viable alternative verdict available in the dispossession by the trial judge of that viable verdict having regard to the circumstances in which the stabbing occurred has resulted, in my respectful submission, in a demonstrable miscarriage of justice and justifies intervention on that basis alone. 

If the Court pleases, the short second aspect to the application concerns what might be described as the fresh evidence point or the new evidence post-trial which was led and introduced before the Court of Criminal Appeal.  Your Honours would have seen the papers that following the conviction of the applicant, the appeal sought to introduce fresh evidence on the basis that Kalache provided a post‑trial confession admitting that he was the stabber of the deceased.  This was consistent at least, with the terms of the statement of the dying declaration that the deceased identified Kalache as the stabber.

The Court of Criminal Appeal in effect handled the post‑trial evidence as not being credible and, in effect, rejected it and held that there was not ‑ ‑ ‑

McHUGH J:   Well, Justice Sully said, did he not, that Mr Kalache’s evidence was so blatant and it is an affront to ordinary commonsense that no reasonable jury could have any reasonable doubt about the guilt of your client.

MR WENDLER:   Yes, well that was the description in broad terms that was put on it.

McHUGH J:   Well, the judges at the Court of Criminal Appeal saw Mr Kalache give evidence.  That was the view they formed.  We have not seen him.  How can we second‑guess that?

MR WENDLER:   Well, it is not a question of second‑guessing.  It is a question whether or not the legal principles concerning fresh evidence were correctly applied in relation to that evidence ‑ ‑ ‑

McHUGH J:   Well, they certainly seem to be, except you now rely on section 55 of the Evidence Act, do you not?  Is that the only reason for saying ‑ ‑ ‑

MR WENDLER:   Well, the whole focus of the evidence before the Court of Criminal Appeal was on the basis of reliability.  As I read your Honour’s treatment ‑ ‑ ‑

McHUGH J:   What I said in Papakosmas, but I mean, that does not mean that notwithstanding 55 - surely the judges in the Court of Criminal Appeal when considering fresh evidence have to consider whether it is reliable.  They do not just say section 55 says that you only look at its rationality, whether it could affect the result.  On that basis, there would hardly be a case where they would not have to set aside the verdict.

MR WENDLER:   Well, your Honour held in Papakosmas that ‑ ‑ ‑

McHUGH J:   In all these cases the evidence is not led unless it is relevant.  On your theory, that would mean that they would have to overturn their verdict.

MR WENDLER:   No, the test still remains whether or not there was a significant possibility that the jury, having that evidence before them, would have entertained a reasonable doubt.  Now, the focus is upon that question, not on the questions essentially of reliability because of section 55.  It assumes that the evidence is reliable as your Honour pointed out at Papakosmas.  It assumes it because of the words “if it be accepted”, as your Honour explained.

McHUGH J:   Yes, but the Court of Criminal Appeal is dealing with a different issue.  They have to decide whether this evidence would have affected the jury’s verdict and in determining that issue, they have to determine how reliable it is.  It is not hypothetical.

MR WENDLER:   Well, I am not suggesting it is hypothetical, but the focus, with respect, having regard to section 55 and the common law test in respect of fresh evidence described and set out in Mickelberg and I think Gallagher must to some extent have been modified or qualified by section 55.  In other words, the first question the court asks is, is the evidence relevant within the meaning of section 55, and assumes that it is reliable.

If it is not relevant, of course, that is the end of the inquiry.  If it is relevant, it moves to the final step as to whether there was a significant prospect or a significant possibility the jury would have entertained a reasonable doubt.  The whole focus on reliability in the judgment of the Court of Criminal Appeal is misconceived in relation to what now is the operation of section 55 and the way your Honour handled that ‑ ‑ ‑

McHUGH J:   No, but it is a question what is involved in significant possibility that the jury would have entertained a reasonable doubt, and part of the content of the phrase “significant possibility” is the reliability of the evidence.  It is involved in it, it is inherent in that issue.

CALLINAN J:   It may be a lower threshold too, it is significant possibility rather than probability, but if the court forms the view that it is totally implausible, that seems to be the case here, then you do not even get over that lower threshold, and you have not.

MR WENDLER:   Well, I suppose my point is that how it forms that view that the ‑ ‑ ‑

McHUGH J:   Your point is a simple enough point.  You simply say since section 55 was enacted reliability is not an issue.  If the evidence is relevant the only question for the Court is significant possibility.

MR WENDLER:   Yes, and in my respectful submission, that is a matter of some importance to the criminal justice system as far as procedure is concerned because, of course, fresh evidence issues come before courts in

criminal appeal regularly, and it is of some importance to identify what the true legal relationship is between those sections in the Evidence Act and the common law test as it now stands.  If the Court pleases.

McHUGH J:   Thank you.  Yes, the Court need not hear you, Mr Lamprati.

We are of the opinion that there is no reason to doubt the correctness of the judgment of the Court of Criminal Appeal in this matter and, accordingly, the application for special leave is refused.

The Court will now adjourn until 3.30 pm on Monday, 31 January 2005 in Canberra.

AT 3.29 PM THE MATTER WAS CONCLUDED