Taouk v The Queen

[2005] HCATrans 961

[2005] HCATrans 961

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S331 of 2005

B e t w e e n -

SIMON (EID) TAOUK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 10.12 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR P. BYRNE, SC and MS G.A. BASHIR, for the applicant.  (instructed by Horowitz & Bilinsky)

MR L.M.B LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  The applicant, as your Honours will have seen, was convicted of the murder of his wife and brother-in-law and it is a case in which we seek to make a number of points.  May I start with the issue of unreasonableness of the verdicts which is a matter which leads into the other aspects and in that regard could I take your Honours to our written submissions at page 217 of the application book and in particular to paragraph 29.  Your Honours will see there the issue which we seek to advance in relation to that – I will come to elaborate on it slightly in a moment.

GLEESON CJ:   Mr Jackson, on the defence case at trial, and I realise there was no evidence from the applicant, what happened to the gun?

MR JACKSON:   Your Honour, it was clearly open on the evidence to form the view that the gun had been thrown away by the applicant.  There were other possibilities that one of the children might have disposed of it but the view was certainly open that that was so and it was probably the view most likely to have been drawn in the circumstances by the jury.  The reason for throwing away the gun, however, was something that was open to a significant number of interpretations, one being simply an instrument which had been the cause of death or injury was thrown away with a desire to get rid of it.  Your Honours, that is fundamentally, I think, what I could say about that.  The throwing away of something which has caused injury or death is something that is not very surprising really, in the circumstances.

Your Honours, could I refer also to paragraph 33 of those submissions dealing with the question of special leave, at page 218.  Having referred to those matters may I just say a couple of other things about this.  The first is that, as is apparent from the reasons in the Court of Criminal Appeal, the evidence supported the view that it was the brother-in-law, one of the deceased, who had had the weapon.  Your Honours will see that referred to by Justice James at page 174, paragraphs 125 to 127, and that there was a struggle between them in which the appellant ,as there he was, took the gun away from the brother-in-law.  Justice Hall, at page 197, paragraph 196, referred to the fact that:

The evidence on the gunshot residue, consistent with the fact that Tony Taouk had been the shooter (using his left hand), taken alone might well establish either -

and your Honours will see the matters to which he there refers.  This was a case where no one saw what took place apart from the appellant and the two deceased and so reliance was made on admissions.  If one looks to see what the admissions amounted to, your Honours will see those in Justice Hall’s reasons – it is pages 198 and 199, and the paragraphs are the same numbers.  Your Honours will see he summarised in paragraph 198 what the evidence might have been and you will see that the admissions amount to, if one goes to the last two dot points on page 198:

[he] agreed that in answer to a question by police “that you took the gun off your brother in law”, he replied, “yes, I did.  I say that, yeah”.

In the same interview, if one goes to the top of the next page, you will see the three questions and the answers, and your Honours will see that the closest one gets really is the last question and answer:

I grabbed him just he stop, stopping him of shooting, and we were fighting, we were fighting between me and him and just, I used to see the, the shots and Oh God went everywhere, the shot went everywhere.”

Your Honours, that takes one to circumstances where the only other relevant admission appears to have been that which is referred to at pages 4 and 5 where Constable Munro who was on the counter of the ‑ ‑ ‑

GLEESON CJ:   Yes, but what you have just read us on page 199 was from a recorded interview.

MR JACKSON:   Yes. 

GLEESON CJ:   Sorry, what is the Constable Munro evidence?

MR JACKSON:   It is page 4, your Honour.

GLEESON CJ:   Thank you.  In fact, in the questions that you have just been referring us to he was being asked about what he had said to Constable Munro, I think.

MR JACKSON:   Your Honour, yes, that is so and your Honour will see that the starting point is in effect what appears at the bottom of page 4.  What appears from the bottom of page 4 is:

He said, “I’ve just shot someone at my house.  I had an argument with my brother and he had a gun.  I took it off him and fired a few shots.”

GLEESON CJ:   I gather that what they were doing in the interview, or at that part of the interview, was setting out to clear that up.

MR JACKSON:   Yes, your Honour, that is right.  Then one sees what appeared at the top of page 199.  Your Honours, what was said by him at page 4 was a central part of the Crown case and that that is so can then be see from the summing‑up – it is discussed over 10 pages in the judge’s summing‑up commencing at page 24 at line 10:

The Crown listed seven circumstances ‑ ‑ ‑

GLEESON CJ:   Is the argument, going back to page 4, that when you get to line 45, “He said,” he was then under suspicion?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   All that has happened up to that date, he said he wants “to report a disturbance” and the policeman said, “What’s happened?”

MR JACKSON:   Your Honour, the criterion under section 281(1)(a) is was he suspected or could he reasonably have been suspected.

GLEESON CJ:   Before you get to line 45, what might have been the offence?

MR JACKSON:   Your Honour, it could have been any offence really, a disturbance at his house but it is likely to be something of some significance, “I want to report a disturbance at my house” and he is then asked “What’s happened?” and that is where it comes from.  If I could just take your Honours for a moment to page 213, in our submission on this point, paragraph 17, what we would submit is essentially between lines about 15 and 25 on that page.  It was dismissed by Justice James on the basis that people just turn up to report things and it does not follow that they have been involved in an offence.

GLEESON CJ:   But it is not as though he turned up and he said, “Somebody has been killed at my house”.

MR JACKSON:   No, I appreciate that, your Honour.  What he was saying was he wanted to report “a disturbance at my house” and that is where it starts from.  Your Honours, it may be that our argument imposes a relatively stringent test but the provisions, in our submission ‑ ‑ ‑

GLEESON CJ:   Is it the corollary of your argument that if anybody turns up at a police station and says, “I want to report a disturbance at my house”, the police then have to get the cameras out?

MR JACKSON:   Yes, your Honour, that follows, I accept that, but that is where I say, what I just submitted, that no doubt it applies a stringent test but the provisions are designed to that end and my learned friend reminds me section 281 applies to any offence. 

Your Honours, could I just say that the next point we would seek to make is that, in our submission, this should have been excluded as a matter of discretion pursuant to section 137 of the Evidence Act.  Could I refer your Honours to the argument that was advanced in this regard in the Court of Criminal Appeal at page 132 – I am referring particularly to about line 27 ‑ ‑ ‑

GLEESON CJ:   Who was appearing for the applicant at the trial?

MR JACKSON:   Mr Spencer, I think.  I am referring your Honours to about line 27 that goes through to about line 30.

HEYDON J:   The Crown, in its summary of argument set out by reference to the transcript of the trial material suggesting that Mr Spencer did not make any objection to the evidence on discretionary grounds, that is to say the material on pages 4 and 5 of the appeal book on section 90 or section 137 or 135 or 136.  It is hard for us to work out what happened because we do not have the transcript but you are proceeding in a somewhat indirect way by looking into another transcript to see what someone said happened at the trial as distinct from what was recorded as having happened.

MR JACKSON:   Your Honour, the short version of it is at about line 45 on page 132 where what your Honour has put to me was, in effect, put to my learned friend, Mr Byrne, in the Court of Criminal Appeal and your Honours will see that he accepted that section 90 was not referred to but he set out the part where there was reference to section 137.

HEYDON J:   I do not think we can resolve this now.  I am simply saying that the Crown has, by reference to primary material, contended the opposite in answer to that very submission but it perhaps does not matter whether or not Mr Spencer took the point.  You say the Court of Criminal Appeal should have relied on the point.

MR JACKSON:   Your Honours, the third feature about the case, in our submission, is this that this was a case where there was a misdirection, in our submission, in relation to a matter crucial in the way in which the trial had progressed.  It is the matter which we deal with in our written submissions at paragraphs 10 and 11 at page 211.  What had happened, as your Honours will see, in paragraph 10, is that the judge had in effect attributed to us an argument that was not the argument that was being advanced.  Your Honours will see what Justice Hall said of it in the passage which is quoted about line 26 and the relevant quotation from Justice James a couple of lines further up. 

Your Honours will see in the next paragraph that there had been an affidavit by the counsel who appeared at the trial saying that he had not heard the judge say that and that if he had heard that he would have sought to have had the direction ‑ ‑ ‑

HEYDON J:   Did he not say he could not remember whether he had heard?

MR JACKSON:   Your Honour, I think the terms of it were that he had not heard it being said. 

HEYDON J:   I am looking at page 168, line 30:

trial counsel in an affidavit filed in this appeal said that he did not recall hearing the passage in the summing-up -

That is Justice James.

MR JACKSON:   Your Honour, the interpretation of that - the affidavit is not before your Honours but my understanding of the situation was that he had said he did not hear that said and that, to the extent to which it is expressed in that way, that reflects his evidence, “I do not remember hearing that being said”.  Your Honours will see what he said after that that if he had heard it he would have objected to it.

Your Honours, in our submission, too strict an approach in relation to the application of rule 4 of the Criminal Appeal Rules was applied.  Could I refer your Honours to the passages in that regard at page 202 in Justice Hall, paragraphs 208 and 209.  In paragraph 209 he referred to rule 4 not allowing a miscarriage and then, more particularly, Justice James at page 168, paragraphs 114 to 118.  Your Honours will see in relation to paragraphs 114 to 118 which are the passages part of which your Honour

Justice Heydon referred to a few moments ago, that in paragraph 118 it was simply said:

I would refuse leave under r 4 to rely on this ground of appeal.

That appears to be based in part on the fact there was no objection to it and based in significant part and, your Honours, that, in our submission, is, in the circumstances ‑ ‑ ‑

GLEESON CJ:   Hang on, the fact that there was no objection to it is occasion for considering rule 4, is it not?  I thought that what appeared in paragraph 117 on page 169 was the point that was regarded as decisive.

MR JACKSON:   Your Honour, it is right to say that that was put to the jury in that sense but put in circumstances where the view – paragraph 114 that is referred to – where the argument that was being put was one that was different from and inconsistent with the argument that in fact had been put and did not put the argument that counsel had put.  In those circumstances, your Honour, in a case where no one saw what happened, the evidence seems to have been very open to the conclusion that the gun was one that was held by Tony Taouk, brought along by him in circumstance where the evidence demonstrated there was a fight between them and these were matters of critical importance.

Your Honours, the last thing I wanted to say was that this is a case where – if I could go back to our written submissions for a moment – if one seeks to identify the evidence that there was in relation to the killing of the applicant’s wife, it is very difficult, in our submission, to see what the basis was for a conclusion that it was properly open to the jury - I say “properly open”, so I am talking about unreasonableness of the verdict - to arrive at a conclusion along those lines and such an approach, in our submission, also affected and infected the conviction on the other count. 

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Lamprati.

MR LAMPRATI:   May it please the Court.  If I could go to the section 281 point, the question about the statements made to Constable Munro at Burwood Police Station.  Your Honours would have seen from the material that your Honours have that what happened was that the applicant presented at the counter of the police station.  There he was met by Constable Munro, an officer of about three years experience, and he said the words that have been referred to earlier that he wished to report a disturbance in his house.  “What happened?” - that is all the constable said, and then there followed the material that relates to the gun, having shot someone at the house, and so on.

GLEESON CJ:   It is a little difficult to avoid the conclusion that if the applicant’s argument on that point is correct, every time anybody turns up at a police station and says they want to report anything then the police have to put them on a videotape.

MR LAMPRATI:   Indeed, your Honour, and I would suggest that it is common knowledge and Mr Justice James certainly took this point that police stations are not private offices, people go in, they report missing purses, they report a disturbance such as the local yahoos taking their cars up and down the street, a party which has got out of hand, and so on.  The expression, “a disturbance” could not reasonably engender a suspicion and the consequences in the circumstances that there obtain that Mr Taouk could have committed an offence.

GLEESON CJ:   We do not need to hear you further on this point.

MR LAMPRATI:   Yes, your Honour.

GLEESON CJ:   What about the other points that Mr Jackson raised?

MR LAMPRATI:   The next point relates to the question of the misstatement of Mr Spencer’s argument as to the significance of the gun residue particles on Tony Taouk’s hand and his argument to the jury that the better view of the evidence was that it was Tony Taouk that had the gun and that he did the shooting.  The argument occurred in the context of what was put by the Crown Prosecutor.  The Crown Prosecutor referred to the fact that there was evidence that Tony Taouk was right‑handed.  The police gunshot residue expert had testified that Tony Taouk had gun residue on his hands, predominantly on his left hand, and that could be consistent with his having fired a gun with the left hand.  However, he did not know, presumably, that Mr Taouk was right-handed when he made this report but that was his evidence. 

The Crown Prosecutor in her address to the jury had put to the jury Tony Taouk was right-handed - we know that, it is just not conceivable that if he had the gun that he would have fired the gun with his left hand and she related it to the injury that he had.  Tony Taouk was killed by a gunshot wound entering round about the nipple area of the chest and she demonstrated to the jury, “How would he kill himself with a gun?  It is not feasible.”  Mr Spencer, in his address to the jury, said “No.  The evidence of a gunshot expert supports the inference that it is more likely than not” – I am not quoting the exact words but this was the effect of it – “that Tony Taouk had the gun in his left hand and it’s much easier to shoot yourself” - in the context of a struggle, let us say - “on the right side of your chest than if you are holding a gun in your right hand.”

The submission that Mr Spencer put and which is complained was misstated – Justice James appeared to say effectively that it was although did not agree that there was a great deal of damage done by it, but it is my submission that apart from the finding of Justice James that there was reference to the material before the jury to the effect that Tony Taouk had the gunshot residue on his left hand and that Spencer had, in effect, stated that the left hand was close to the firing gun, not implying however, as I understand it, that the gun was held in the right hand.  His Honour put that the inference went to the jury, or the argument went to the jury, albeit in a quite different form, that Taouk had done the fighting.

All of this argument, particularly the argument put by Mr Spencer, in my submission, can be seen to have very little weight when one considers the wound that was suffered by Tony Taouk because the pathologist said that the wound had gone from right to left in an upward direction.  He testified in his evidence that the bullet entered the chest at around about the nipple area, had gone through the ribs into the right lung and caused damage there, had carried across and damaged major blood vessels in the heart.  It had then gone further into the left lung, caused further damage there, gone out of the left lung and through the left shoulder blade and lodged, in the end, somewhere under the skin of the back. 

If the argument which Mr Spencer was seeking to refute, the argument of the Crown Prosecutor that to shoot yourself with the right hand in that way, having regard to the direction of the bullet’s travel, is difficult, we would submit how much more difficult is it to take the gun in the left hand and cause a wound of the nature that Tony Taouk suffered.  The argument really did not hold water so that although it may be that Justice Barr did not put it accurately to the jury, it is difficult to see, in my respectful submission, that the applicant lost anything at all with the argument.  Indeed, it is my submission that the thesis put, the hypothesis advanced by Mr Spencer, simply just does not hold water so to suggest that, as it were, the trial has miscarried on that regard I suggest is really quite far‑fetched.

The next point related to the question of the death of Salam Taouk, the lady, Mrs Taouk, the accused’s wife.  As the court below summarised it, we had the evidence of the accused having taken the gun and fired the shots, disposed of the gun.  There were six shots fired.  That is important in the context of this submission that it was all an accident.  There were six shots fired.  The evidence was the gun used was one of these British Army-type revolvers, the large one that Mr Spencer discussed during the evidence of the type sometimes seen in films, worn on a lanyard by British Army officers, one of those big revolver-type guns.  That was, by process of elimination, the Crown submitted, disposed of by the accused, no one else in the house ‑ ‑ ‑

HEYDON J:   It is not an automatic weapon then, you have to pull the trigger each time.

MR LAMPRATI:   Yes.  I surmise on that, your Honour.  It is a clearly ancient gun, it is a revolver.  It is not my understanding it is an automatic weapon.  There were photographs before the jury of a typical revolver, largish weapon.  There was his presence at the scene.  There was the argument beforehand and the other items which have been referred to, your Honours.  The deceased, Mrs Taouk, was found on the floor at an entrance hallway adjacent or contiguous to room four.  There were found a number of shots in that room.

HEYDON J:   You mean bullet holes in the wall?

MR LAMPRATI:   Yes.  With respect, it is difficult to conclude, with multiple shots being fired, that this death has occurred by accident.  In my submission, the circumstances that were before the jury were quite sufficient to sustain the convictions and this Court should not grant leave.

GLEESON CJ:   Thank you, Mr Lamprati.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say in relation to the matters that my learned friend has just been addressing that the position in the end, of course, was that the Crown had to demonstrate a number of things.  One was that it was the applicant who had fired the shots, to put it shortly, and fired the shots that killed the two persons in question and there was a very serious issue about that.  There was some evidence that he had fired some shots, that was the material from speaking to Constable Munro, but it did not really get beyond that.  What one saw was that there was some evidence that the bullets appeared to have come from a Webley pistol of some antiquity - .455 calibre, but the weapon was not found and so one cannot identify it more specifically really than that. 

The second feature is that what occurred was that there was evidence of a fight that was going on between these two brothers-in-law.  One sees at page 172, the reference in paragraph 123(x) to there being “bruising on the knuckles” of the right hand of the deceased and that:

was consistent with the appellant’s assertion in the recorded interview that he and Tony Taouk had been fighting and that Tony Taouk had “slapped” the appellant.

So there was some basis for saying that he might have been using his left hand and, of course, in a fight the circumstances in which a man holding a revolver, on the assumption that that is what it was, might be put in a

situation where his hand was turned round and then the trigger was pulled, are obvious enough and because of the nature of it and because of the lack of evidence about how the injury, or the injury that caused her death, may have occurred to his wife, it was of critical importance that the case be properly put to the jury.

If I could go back for a moment, your Honours, to page 202 in Justice Hall’s reasons, your Honours will see commencing at page 201 in paragraph 207, his Honour said in the last five lines on that page:

there is much to be said, in my opinion, in favour of the proposition that a specific circumstantial evidence direction should have been given related to that segment of expert evidence.

Your Honours will see that goes on through the remainder of that paragraph and then, when one comes to the next paragraph, 208, commencing at about line 31 that was really a central matter but what one sees then is that leave was simply not given in relation to a direction, but the situation goes beyond that.  It went also to the question whether it was a case where the verdicts could be sustained. 

May I say one thing, finally, your Honours, in relation to a question your Honour Justice Heydon put to me earlier.  At page 220 in the respondent’s submissions, in the second paragraph on the page, there is a reference to a secondary argument based on “sections of the Evidence Act” and your Honours will see then a submission is made about what took place after that. 

GLEESON CJ:   We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave to appeal in this matter and the application is dismissed.

AT 10.47 AM THE MATTER WAS CONCLUDED