Ali v The Queen B28/2002 [2003] HCATrans 625 (14 March 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B28 of 2002

B e t w e e n -

AKHMAN ALI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 MARCH 2003, AT 11.46 AM

Copyright in the High Court of Australia

MR T.D. MARTIN, SC: If the Court pleases, I appear with my learned friend, MR D.W. HONCHIN, for the applicant. (instructed by Ruddy, Tomlins & Baxter)

MRS L.J. CLARE: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Martin.

MR MARTIN: Your Honours, as the Court of Appeal determined, in section 359B reasonableness arises only in deciding whether apprehension or fear of violence would reasonably arise or whether detriment reasonably arose. The determination by the jury of that issue was critical to a verdict. In this case indeed, it ought to have been the only real issue. At no stage was this issue properly explained to the jury. Whilst the learned trial judge read out the provisions of those relevant sections to the jury, the majority of the Court of Appeal found that his Honour misdirected the jury by in effect, and later on during redirections, explicitly directing the jury that it was to consider whether the applicant's conduct was a reasonable or unreasonable response to the complainants' conduct.

I take your Honours to paragraph 40 of the Court of Appeal judgment. The majority judgment there sets out the redirection given in response to a note sent out by the jury earlier asking about what do they do if they find that the conduct of the applicant was in response to conduct of the complainants. His Honour later on, having been informed that the jury had agreed on two verdicts but undecided and unlikely to give verdicts in respect of the other two, intended to give a Black direction but at the same time took the opportunity to give the direction set out in paragraph 40.

Your Honours can see there that he simply left it on the basis of what they might think:

was a reasonable response, in the circumstances? Whether it was a proportionate response? Whether the response went overboard? Whether it was too much by way of response? Whether it was more than required in the circumstances, or less than required -

et cetera; going down in that first paragraph to saying this:

If there was an act by one side - say the Hughes for example, that - that provoked a response, whether the response was proportionate to the provoking act, to the precipitating act? Or whether it was more than you consider was reasonable in the circumstances? Whether it was more than enough -

It was only after that redirection of course that the verdicts were delivered.

It is our submission, your Honours, that the applicant has not had a trial according to law. What was left for the jury's determination was a different question altogether to the question which ought to have been left. What ought to have been the critical element of the offence has never been left to that jury's consideration. We respectfully submit that there is such a serious departure from the essential requirements of the law that no proper trial has taken place. We refer to Quartermaine's Case in that regard, particularly at pages 600 through to 602.

Your Honours, the majority of the Court of Appeal, having stated in very clear terms - and it goes right from paragraphs [36] through to [40] inclusive in pointing out how his Honour misdirected the jury - the majority of the Court of Appeal then went on to find that the misdirections were favourable to the applicant and, therefore, there was no miscarriage of justice. First, your Honours, we submit that if the jury is not directed to consider an essential element of the offence, it is inevitable that there is miscarriage of justice and a fundamental one.

McHUGH J: But what essential element in the context of this case was not put to the jury by the trial judge? The trial judge directed the jury that the applicant's awareness of the circumstances of Mr and Mrs Hughes was relevant. His case was that his harassment of his neighbours was not one-sided; they were harassing him. That is not relevant to paragraph (b).

MR MARTIN: Your Honour, what the jury has to decide under that section is whether that conduct caused detriment to Mrs Hughes reasonably to arise. It is not whether the conduct in response was reasonable. It was whether her detriment reasonably arose in all the circumstances. That is a critical issue when determining stalking offences under the Queensland legislation.

McHUGH J: Yes, but even if the Hughes were harassing the applicant in the way he claims, he still knew, foresaw or reasonably ought to have foreseen that they would suffer detriment due to his actions. That is precisely why he engaged in the conduct he did. The fact that his victims might have been harassing him seems to be of little significance to the offence created under the Queensland Code.

MR MARTIN: Your Honour, with respect, it is not inevitable that the jury would find that the detriment reasonably arose in those circumstances. He would be aware that Mrs Hughes would be engaging in similar conduct. If that is a circumstance to take into account, the jury may well decline to find that her detriment reasonably arose. She was the author of her own misfortune.

McHUGH J: No point was taken at the trial about the point you are now seeking, was there?

MR MARTIN: No, your Honour. No one sought a proper direction and the judge did not give one. The jury simply never considered what we submit is a critical element. In these cases it is often the only real issue to be determined, whether or not the detriment reasonably arose. The example that we give in the outline of argument emphasises the point.

McHUGH J: With great respect, the example seems to me well and truly remote from this case. In that case where the victim is abnormally sensitive, paragraph (b) might be particularly important and require a greater emphasis by a trial judge; far removed from this case.

MR MARTIN: Your Honour, very well, but one underscores the point that this is a critical issue in determining the offence. In this trial it remained, or it should have been, the only real issue. It is well open to the jury, and with respect to how the trial was run, if this direction had been given, Mr Ali had a real chance of acquittal by the jury, approaching it on the basis that if Mrs Hughes was prepared to engage in similar conduct, then her detriment did not reasonably arise. Clearly enough, the jury were interested in that aspect. They were the ones who sent out the note for the redirections about the conduct. There was a lot of evidence to that effect not only from the applicant himself but from seven witnesses. That evidence is summarised in the President's judgment in the Court of Appeal to a large extent. So there was ample opportunity, we submit, for the jury to find the applicant not guilty if they had been properly directed.

I have dealt with the second matter about the real chance of acquittal. The third matter is this, that in any event the misdirections given by the trial judge were not favourable to the applicant at all. For the reasons I have just expressed, if the jury had been allowed to consider it on the proper basis, namely was Mrs Hughes the author of her own misfortune and any detriment that she suffered did not arise reasonably, if it had been left with that direction, then there was a real chance of acquittal. But the manner in which it was left was to make a comparison, a technical comparison, between the conduct of the Hughes on the one hand and the conduct of the applicant on the other, and therefore, "Was the response to abuse a bit overboard or a bit disproportionate or not quite right?" So that the jury, making such a technical comparison, could easily come to the conclusion - for example, the Hughes only used a torch to shine into the neighbours' house whereas they might have found that Mr Ali used a spotlight to shine into. Perhaps that was a bit disproportionate, a bit overboard, and consequently a finding of guilt. With respect to the majority judgment, it can no way be said that that was a favourable direction given by his Honour. Your Honours, that being so, we respectfully submit that the applicant has not had a trial according to law.

McHUGH J: Yes, Mr Martin. What about the special verdict point. Do you rely on that?

MR MARTIN: Yes, could I move on to that?

McHUGH J: Yes.

MR MARTIN: The types of acts complained about are set out in paragraph 2.4 of our outline of argument. The jury then was invited to consider by his Honour all of the conduct alleged against the applicant and his wife, which comprised 240 acts, and they were directed that any two could amount to the offence, subject to these other directions. At the end of the day the jury returns a verdict of guilty against Mr Ali only, having acquitted Mrs Ali. No one knows what conduct the jury found comprised the offence. Because of the erroneous directions of course, it brings it into sharp focus that the jury has been out there making a technical comparison between the respective conducts. They may have, for example, gone to the most serious conduct and said, "Well, we find that was a bit overboard by Mr Ali, so he's guilty of that", and not even have bothered in respect of the remainder of the conduct. Alternatively, they could have gone through all of the conduct and made that comparison, and in respect of most of the conduct come to the conclusion that it could not amount to the criminal offence and effectively acquitted him in respect of that conduct.

When it comes to sentence, his Honour is completely unaware, as are we all, as to what conduct the jury has determined amounted to criminal conduct. His Honour then approached the sentence on the basis that all of the conduct was criminal. He had never seen a worse case, a persistent outrageous case, and sentenced the applicant to three years imprisonment in respect of this neighbourhood, what seems to be tit for tat conduct.

It is our respectful submission that in those circumstances where the jury is determining conduct which goes to the element of the offences - this is not evidence by the by or evidence of motive by the by. This is the very facts that go to the issue in the trial. When he does not know that the jury has effectively acquitted Mr Ali of that, it is our respectful submission that he cannot go to sentence without determining it.

McHUGH J: Here is another case - this is like in Geary's Case. The point was not taken. Now you want a new trial in respect of a sentencing matter which was not taken.

MR MARTIN: The point at least was taken in the Court of Appeal in this case.

McHUGH J: It is a bit late in the day.

MR MARTIN: All right. I only make that point because I notice in Cheung's Case it was not taken to the High Court, so we are one step ahead of that. Your Honours, the fact that it was not taken must clearly be an oversight. It cannot be any tactical advantage surely to the accused. No one asked for it. The Crown did not ask for it. His Honour should have been alerted to it well by that stage, with respect to him. Under our section in the Criminal Code he should have known that it would be an appropriate case in which to ask for it. It says this:

In any case in which it appears to the court that the question whether an accused person ought or ought not to be convicted of an offence may depend upon some specific fact, or that the proper punishment to be awarded upon conviction may depend upon some specific fact, the court may require the jury to find that fact specially.

McHUGH J: Yes, but that has to be read in light of section 132C which applied here, did it not?

MR MARTIN: It did.

McHUGH J: And that empowers the judge to make the findings of fact.

MR MARTIN: In our respectful submission, not if it goes to the elements of the offence, as this did. In Cheung's Case of course, what was being considered there was whether or not the applicant had a benign motive when knowingly concerned in the importation. Here the conduct being considered, and in respect of which he is sentenced by the learned trial judge, comprises the elements of the offence. It is to be noted further that his Honour therefore may be fact finding on sentence inconsistent with the verdict of the jury. That is the point. He does not know. We do not know. But what we do know is that the jury acquitted Mrs Ali and there was direct evidence linking Mrs Ali with a number of the acts set out in paragraph 2.4, the type of acts there. The jury entirely acquitted her, so one may draw comfort from that fact that they thought at least that conduct, of which Mr Ali was similarly alleged to have been guilty, did not amount to a criminal offence. But the judge has gone ahead and included, it seems, just everything, just a prolonged, persistent campaign of harassment. Your Honours, they are my submissions.

McHUGH J: Thank you. The Court need not hear you, Mrs Clare.

The principal points raised by the applicant in this case concern the trial judge's directions. Those points were not raised at the trial. The Court of Appeal agreed that the trial judge had misdirected the jury in certain respects, but held that the jury's directions were unduly favourable to the applicant. Given the way the accused conducted his defence, and the evidence, we do not think that any miscarriage of justice has occurred in this particular case. Insofar as the application depends upon the trial judge's directions or lack of them, the application for special leave cannot be granted.

The other point raised by the applicant was that the trial judge should have taken a special verdict to assist in determining what facts were relevant to the sentencing process. The trial judge certainly had the power to do so to assist in the sentencing process. However, section 132C of the Evidence Act of Queensland empowers the trial judge to make findings or determine matters relevant to sentence. No application was made to the trial judge for a special verdict. That being so, in our view, the case does not warrant the grant of special leave on this point.

Accordingly, the application for special leave is dismissed.

AT 12.07 PM THE MATTER WAS CONCLUDED