Sleiman v The Queen [2012] HCATrans 200

[2012] HCATrans 200

[2012] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M175 of 2011

B e t w e e n -

MIRVAT SLEIMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 1.01 PM

Copyright in the High Court of Australia

MR D.A. DANN:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Melasecca, Kelly & Zayler)

MR B.L. SONNET:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Vic))

HAYNE J:   Yes, Mr Dann.

MR DANN:   If the Court pleases, it is submitted that this application raises both a specific issue in respect to an individual miscarriage of justice in the applicant’s case and a general issue arising in relevance to the application of the principles set out in R v Darby.  If I can deal with the specific issue first, the instant case, the alleged miscarriage, it is submitted that this is in fact one of those cases referred to in Darby where the evidence against one individual, one co‑accused, is in fact overwhelming, and a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt in respect to the other.

HAYNE J:   Is not the central difficulty you have in this case that there was a recording of the conversation that was the formation of the conspiracy?

MR DANN:   Yes, your Honour, I was going to concede that that formed the centrepiece of the case against both.  But, the battleground really was, well, how is that phone call to be interpreted, and the contentions were being made in respect to this applicant; well, this is a woman, a somewhat mentally fragile woman, responding in that particular conversation in a way that she does, but not evidencing a genuine agreement to follow through, and indeed, the surrounding evidence was that indeed there was surrounding evidence that she had in fact made contrary indications by way of assertion and comment to the co‑accused about that particular phone call that he was speaking rubbish and he should not have been speaking it, but that is how the defence was categorised.

The point I am making, to interpret that conversation and whether that conversation was evidence of a genuine agreement, there was other evidence led in this trial, and most of that other evidence related to the co‑accused, so that there was a body of evidence, it was submitted, that related to that co‑accused which did not relate to this applicant.  I just want to briefly take the Court through it.  As against the co‑accused, there was evidence of a past act of violence in the lead up to the formation of this alleged conspiracy.

In that particular incident, which is said to be January, so we are dealing with the phone call being 16 January, of an incident where it is said that the co‑accused pulled the hair of the victim, pulled her head towards his groin, put his fist toward her forehead, put his hands around her and when she gave evidence of that incident how it reads is that her state of mind was that this man was going to kill her there and then in that particular incident.  Her evidence was she thought that was it, that he was going to reach for a knife, because that is what he had done previously.

There was evidence in the case against the co‑accused that he had made efforts to concoct a false story about his wife’s behaviour in the lead‑up to the formation of this alleged conspiracy; that is, he had been telling people, it is said, on the Crown case, falsely, that she was suicidal, that she was abusing alcohol so as to lay an explanation for her disappearance, which was said to occur in the near future.  There was evidence in his case that he had taken a sudden interest in the financial arrangements of the two of them operating a joint business, so that whereas he had never been interested in the financial or administration of that business before suddenly, in the lead‑up to this alleged conspiracy, he had taken an interest in those affairs.

HAYNE J:   Be it so, assume that there was a deal of other evidence against Mr Rolls, first it might be observed that that is in the nature of things given what was alleged, that the person who might stand to gain from the conspiracy is likely to have a lot of evidence led against him showing how he is going to gain.  What follows?  What is the consequence?

MR DANN:   Well, the consequence really is weighing up whether ‑ ‑ ‑

HAYNE J:   Where you have got the recording of the conspiracy.  It is a distinctly unusual case.

MR DANN:   It is an unusual case, but the consequence is whether the direction that was given to the jury is appropriate in the circumstances of this case, where in Darby it is said that that type of direction will be appropriate where there is no material difference in the evidence to be led against both conspirators.  Now, here, if there is in fact not only material difference but, it would be said, a substantial difference, then the question is, and the consequence is, is that direction, and was it appropriate?

CRENNAN J:   All these arguments were put to the Court of Appeal, were they not?

MR DANN:   There were put to the Court of Appeal.

CRENNAN J:   That is dealt with, I think, in paragraph 87 of Justice Harper’s judgment, to be found at page 236 of the appeal book.

MR DANN:   That is correct, your Honour, and it is submitted, and this really is the second half of the submission, that in dealing with these arguments ‑ ‑ ‑

CRENNAN J:   Justice Harper makes the same point which has been made by Justice Hayne, and that is that the critical evidence was in the conversation.

MR DANN:   But it could not be that the way this case unfolded and the way the contentions were put to the jury could not be that – and it was not – the Crown was simply saying, well, certainly it was the centrepiece in respect of their presentation of the case, but all this other evidence was led and led for a purpose, to give meaning and colour to this conversation.  It was not just days of irrelevant evidence being called; the Crown had a purpose in calling all of that evidence as to preparations undertaken by the co‑accused, a dry run, in the words coming out of his mouth, that he had undertaken ‑ ‑ ‑

HAYNE J:   What then is the theory of the defence case, that he may have meant to hire someone to kill his wife, but what, that Mr Sleiman was simply engaging in a, what, joke?

MR DANN:   The theory of the defence case was that she was a woman who herself had her own difficulties, fragile mentally, there was a self‑harming attempt, that she was a person that was willing to respond in that particular conversation in the way that she did, but that was not evidence of a genuine understanding by her, number one, that he would follow through on any of those expressed intentions, and two, that she would lend herself to that.  Now, the co‑conspirator gave evidence, of course.  Now, I have not relied on it, and I was not intending to rely on this evidence as part of this exercise, but in that evidence he was cross‑examined by the applicant’s counsel where that defence, in fact, was fleshed out through the evidence.

So, it was not just theory, it was evidence in this case that the jury were entitled to consider and that the learned trial judge, of course, also was entitled to consider in framing the appropriate directions.  So that going back to the respective evidence, there was evidence of preparations undertaken in his case, evidence in his case of overtures to his wife for her to join him on a hiking trip, something that had never occurred before, and your Honours will recall reference in the critical call to just that, one of the possibilities being suggested was a hiking trip, the other, of course, being the beach, and in his case again there was evidence of the trip to the beach.

CRENNAN J:   Well, in the conversation the task of committing the murder was assigned to Mr Rolls, was it not, during the course of that conversation?

MR DANN:   Well, in the conversation it unfolds that he has these ideas and the start of the conversation is the applicant asking him about the ideas, we will get wet or it is a long way from – he is outlining a plan that he has and, yes, he is to undertake the task it seems from that phone call.  Now, in light of that phone call, and I am not suggesting it is anything other than powerful evidence, but in light of that phone call, combined in his case with all of that other evidence, it is submitted that by the end of the trial the jury would have felt it being completely unpalatable to wrestle with the concept of entertaining his acquittal.  The evidence really was, in its combination, it is submitted, overwhelming in his case, and that gives rise to this problem that is outlined in Darby.

So the first point is that the direction should not have been given in the circumstances of this case where the evidence was materially different.  The next point is how the Court of Appeal dealt with the issue, and your Honours have taken me there already.  Just before I leave the first issue, in fairness I should just point out one aspect to the submission.  In the Court of Appeal and in the written submissions that have been made on behalf of the applicant, another piece of evidence was said to be the evidence of motive, of the million dollar insurance policy.

Now, the learned prosecutor did specifically extract that evidence and place it before the jury but it is acknowledged at the end of the trial when the learned trial judge put the proposition to the prosecutor he resiled from relying on motive and in the end the learned trial judge had to direct the jury that all that evidence about the $1 million insurance policy that Mr Rolls would receive if his wife died was irrelevant.  One would have thought it was going to be particularly difficult to abide by that direction, but in fairness I do point that out because it does form a part of the argument that it seems was considered by the Court of Appeal and is set out in the appeal book.

Now, one of the matters that is put against the applicant is that there was no objection in the course of the trial to the direction that was given in the terms that your Honours understand I am now complaining about.  That is in fact correct, although it seems that at transcript 534 the applicant’s counsel had been wrestling with this direction for quite some time.  He indicates at that part of the trial that he has had difficulty with it all along and that it sounds okay when it is said one way, but when the converse is said, he did have a difficulty, but it is a hurdle that there was not sustained objection in respect to the direction and I acknowledge that.  In the circumstances of this case, where the evidence did combine in such a

powerful way against the co‑accused it is submitted that should not be fatal to a grant of special leave.

The next issue then we turn to is the way this complaint was dealt with in the Court of Appeal, and it is submitted that in fact the Court of Appeal set a more stringent test than that set out in Darby, and that there is a difference in saying, well, this type of direction, that you have find both guilty or you have to find both not guilty, there is a difference in saying that type of direction will be appropriate where there is no material difference in the evidence, which is what is set out in Darby at page 678 of the Commonwealth Law Reports.

There is a difference in that position and the position of saying, well, that direction will still be appropriate and it will be appropriate until such time as it can be demonstrated that the evidence against one is so much stronger, or very much stronger.  It is submitted that the Court of Appeal have in fact carved out ‑ set out a more stringent test to be applied in examining the question of what is the appropriate direction in a case where there is a difference in the evidence.  Now, I do not understand it to be said here that there was no difference in the evidence, what is said against the applicant is that the critical evidence was in the phone call.

I do not think it is being said that the evidence was the same and nor can it be because there was, as has been demonstrated, and I can take the Court to any references that are required, a significant body of evidence that was different in the case of the co‑accused, Rolls, than in respect to the applicant.  If that is in fact correct, if that is established, that there was a significant difference in the evidence between them or a material difference in the evidence between them, it stands to reason and it follows that the direction that was given in this case should not have been given.

Secondly, that the test set out in the Court of Appeal’s judgment does not correspond and is not consistent with, and should not be recognised as the appropriate test in considering, as the Court of Appeal were asked to do; they were asked to consider the direction, they were not asked to consider the question of inconsistent verdicts.  What the Court of Appeal was being asked to consider was whether the appropriate directions were given in this particular case.  So in that way it is submitted that an individual miscarriage arose in the circumstances of this case because of the different bodies of evidence and, two, that the test set out by the Court of Appeal in answer to that particular criticism is not consistent with Darby, should not be followed, and for that reason also raises an issue of general principle subject to application in cases of this kind across the board.  That is the way the submissions are put on behalf of the applicant.

HAYNE J:   Yes, thank, Mr Dann.  We need not trouble you, Mr Sonnet.

There is no reason to doubt the correctness of the decision of the Court of Appeal in this matter.  Special leave to appeal to refused.

AT 1.48 PM THE MATTER WAS CONCLUDED