Ali v State of Western Australia [2006] HCATrans 258 (19 May 2006)

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Ali v State of Western Australia [2006] HCATrans 258 (19 May 2006)

Last Updated: 30 May 2006

[2006] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P31 of 2005

B e t w e e n -

MUSTAFA ALI ABDAL AZIZ MOHAMMED ALI

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 2.13 PM

Copyright in the High Court of Australia

MR M.A.A.A.M. ALI appeared in person.

MS T.D. SWEENEY, SC: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions (Western Australia))

MR ALI: Your Honour, I trust that you have been kind enough to review my statement filed in support of the application for special leave and also written - some oral argument, a written case. Your Honour, the issue which I took my appeal with the Appeal Court of Western Australia, the grounds of my appeal was that they were listed in my application but most importantly was that the prosecution has not established their case beyond reasonable doubt in relation to count (1), which was the intent to defraud Mr Abdi. I also took an issue with allowing the alternative charge under section 599 of the Criminal Code (WA). The prosecution said that it was a statutory alternative.

Now, I realise that from sitting here today and listening to what has been happening that it must be brought on the ground of importance as far as special leave to be granted or not. I also have time restraint as far as my presence in Queensland so I will try to make it as brief as I can. The importance of the granting of - rather dismissing of the special leave to appeal this point is if we allow the alternative charges to be open for the jury to consider then we have to have special conditions as far as the manner in which the prosecution lead their case, the manner of which the learned trial judge as well direct the jury to consider the alternative.

I will leap forward into some of the highlights which I have highlighted as far as what his Honour District Court Judge Healy instructed the jury, or directed the jury on in relation to the elements of the two charges; the element of the fraud under section 409 of the Criminal Code (WA) and the elements of stealing under section 599, which is the alternative charge. But the jury had to basically decide based on those elements that were instructed by his Honour. Some of the elements of the fraud charge, which is on application book page 21, paragraph 50, at the end of the page his Honour said, towards the end of the paragraph:

thirdly, that he did so by deceit or fraudulent means and, finally and most importantly, that he did so with intent to defraud.

Now, on appeal book page 50 at line 20, third paragraph in the middle of it, it says:

that the money was stolen, that he had a fraudulent intention -

So the jury had to basically give a verdict and consider two separate charges, two separate offences, on the basis that they have to consider “intent to defraud” or “fraudulent intention”. Now, as you know, your Honour, I am not a learned man in relation to the law but from a layman point of view it is somewhat challenging if the ground rules are not set clearly and explicitly for me to decide between “intent to defraud” and “fraudulent intent”.

CRENNAN J: Could I ask you to look, please, at page 109 of the application book and at paragraph 33 in the decision of his Honour Justice Pullin which deals, I think, with what you are speaking about now. I was going to ask you - in layman’s terms as best you can - can you just explain what you say is the error in that paragraph?

MR ALI: Your Honour, on page 109?

CRENNAN J: Yes.

MR ALI: Right.

In my opinion, the changed circumstances –

It starts with that? Okay. His Honour is dealing basically about - rather justifying the prosecution bringing in those charges, that they have changed circumstances which, in my view, they do not carry any special circumstances bar from the other charges. His Honour says that – well, I realise that your Honour wants me to go further into the – as far as the fairness in the counsel for the - - -

HAYNE J: If you tell us what you say is wrong with what is said there.

MR ALI: There is no change in the circumstances as far as those charges are concerned. The five counts which is - - -

HAYNE J: I think what Justice Pullin is saying is that at the trial in front of Judge Healy there were fewer charges to be considered.

MR ALI: I understand that.

HAYNE J: And because there were fewer charges, leaving the alternatives was not unfair. Now, that I think is what the judge is saying but what we want to know is why you say that is wrong.

MR ALI: Fewer charges as far as the numbers - - -

HAYNE J: Yes.

MR ALI: It is obvious between the 17 charges and five charges. That is obvious. I mean there is no argument. You will not get any argument from me about that.

HAYNE J: But why was it unfair?

MR ALI: The special circumstances which his Honour says that he added on, that the people who were contained in the second indictment, the counts contained in the second indictment, that it was they had paid deposits and did not proceed to purchase houses. Now, if I may, your Honour, take you to the first indictment which contained the 17 charges and that had five counts which also the complainant did pay deposits and did not progress to the purchase of the house. Those counts are No (6) on the indictment, Mr Yaqubi; No (7), Mr Abubakar; No (12), Mr Nasimi; No (13), Mr Lanza and No (9), Mr Minhaj. All of them the applicant was acquitted and found not guilty so basically the only principle which his Honour based his fairness or unfairness on in the introduction of the alternative is the lesser number of charges.

Adding on that, we respectfully submit that the prosecution did not prove their case beyond reasonable doubt as far as the fraud charges or the stealing charges. That is the only issue which I take in relation to the number of charges.

HAYNE J: Yes.

MR ALI: Going back to the elements of which his Honour the District Court judge did instruct the jury on for their consideration in handing down their verdict, that in the element of stealing, on page 51 his Honour proceeded in giving an example as far as, if you take the money from the safe and you take it on the weekend planning on putting it on the ponies and then winning and returning it back, that considers to be stealing, which I respectfully do not see the similarities in this example into my case. The most important is his Honour starts then at the first paragraph:

As soon as you take the money then you are said to have stolen the money.

Now, one would reason that his Honour might have meant that as soon as you take the money from the safe you would have been said to have stolen the money. That would be all cleared if it was clarified by his Honour later but the following paragraph:

Here what you have to look at is what Mr Ali’s intention was at the time that he took the money.

Now, if his Honour is saying to the jury that as soon as you have received money you have stolen it, there is no doubt in my mind that if I was told that then I will find the person or the applicant guilty if that was not clarified by his Honour after his example, starting a new statement, following that by a statement which basically link it to the previous paragraph, not directly to the example his Honour gave.

HAYNE J: Yes.

MR ALI: You see? That could lead, in my mind, that the jury would have considered that taking the money, similar to receiving the money, was in the view of the law that you have stolen the money. What I am basically respectfully submitting is that in order for us - without me having to go into the details of my submissions, or oral submissions, if we have to leave such an alternative open for the jury to consider and we want to eliminate the principle of confusion, the prosecution has to lead their case appropriate to that alternative.

I do understand that the prosecution in this case in this instant did advise the applicant counsel that they might ask for the alternative being open and allowed for the jury to consider. It is different from the first trial in which the - and I mean no disrespect to the counsel representing the prosecution at that time, but it was a matter of –and I am mimicking that he shrugged his shoulder and said “Well, if we do not get him on fraud we will get him on stealing because it is a statutory alternative”. I doubt very much that the lawmakers meant for section 599 to operate in that manner or even 409 to operate in that matter. Thank you, your Honours.

HAYNE J: Thank you very much, Mr Ali. Ms Sweeney, we need not trouble you.

We are not persuaded that it is arguable that there has been a miscarriage of justice in this matter. It is not in the interests of justice either generally or in the particular case to grant special leave to appeal.

Special leave is accordingly refused.

AT 2.31 PM THE MATTER WAS CONCLUDED