Hamide v The Queen [2020] HCATrans 85 (12 June 2020)

Last Updated: 17 June 2020

[2020] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S348 of 2019

B e t w e e n -

OMAR HAMIDE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 12 JUNE 2020, AT 11.40 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS G.E.L. HUXLEY for the applicant. (instructed by Elie Rahme and Associates)

MR H. BAKER, SC: May it please the Court, I appear for the respondent with MS B.K. BAKER. (instructed by Solicitor for Public Prosecutions (NSW))

NETTLE J: Yes, Mr Walker.

MR WALKER: Your Honours can see in a number of places, but we will select the paraphrase starting at page 118 in our written submissions, the undesirable extraneous material introduced by interjection and other, we hope, inadvertence on the part of the witnesses, material which according to the regulation of the fairness of the trial was, in fact, undesirable.

I do not need to dwell on the detail but your Honours appreciate that given the specific nature of the charges in question to introduce, except in response to questions which relevantly made it appropriate to do so, notions of a criminal drug milieu or violence or highly immoral activity was outside the realm of that which was appropriate. When such material is introduced, unfairly prejudicial, as we would put it, counsel for an accused has a choice reflected in the decision the court must make.

Now, either there needs to be a discharge because directions will not avail to a degree sufficient to ensure a fair trial or there needs to be directions. That, of course, is then reflected in the way in which the trial judge, guardian of the fairness of the process, must decide the case. Put negatively, we accept discharge is not appropriate if directions will adequately avail so as to ensure a fair trial. So, when counsel applies for a discharge, the argument, both explicit and implicit is directions will not suffice.

When one is looking to material such as was interjected into these proceedings, there is the well‑known forensic judgment which immediately arises for counsel always, as experience shows, fully understood by trial judges and appellate benches, namely, “If I make anything of this will I make it worse?”, reflected then, of course, in the question, “If I ask the judge who was persuaded by my application to make a direction to deal with this material, will I make it worse?” The sign in neon, “Don’t attend to that circumstance, it is unfairly prejudicial”.

Now, true it is that that is a forensic judgment, utterly familiar in this area of discourse, which rather butts up against the notion, upon which the system is based, that juries follow directions. But that, with respect, represents a pragmatic realism about this aspect of the control of the fairness of a trial – that is, the choice between discharge and direction.

We have referred to the situation – a very familiar one – as being the conundrum that we note at the top of page 125 of the application book. That is why, as I submit, when a discharge is applied for, it implicitly or explicitly conveys the proposition that the only direction specific enough to ensure that the jury knows that the judge is not talking in riddles is a direction that may be self‑defeating. The only one that will work is the one that will make the trial potentially unfair.

That is a paradox which, of course, leads to the obvious alternative which is the discharge. When things have got to a certain point it is not to be supposed that directions sufficiently specific to identify the vice that the jury should avoid will be enough to produce a fair trial.

Here, it is clear that an experienced trial judge well appreciated that conundrum and confined directions for reasons which, with respect, properly understood the position confronting counsel for the accused by making directions which did not identify the material which should not be taken into account and the reasons why it should not be taken into account. There is no criticism of the decision that a direction which was sufficiently explicit to identify what should not be done would be self‑defeating.

NETTLE J: Your criticism is of the judge’s failure to discharge.

MR WALKER: Exactly. Our criticism is of the conviction – I think I am bound to say – following the unfairness that followed as a result of – count them as one will – three or four applications successively made – I think notionally made for one of them – and refused.

NETTLE J: Do you make anything of the difference of approach between Chief Justice Bathurst and the plurality?

MR WALKER: I think the short answer is I would like to but I am bound to recognise that as the matter fell out – and as we have written – what his Honour foreshadows – or, at least ‑ ‑ ‑

GORDON J: .....his Honour – sorry, in that ‑ ‑ ‑

MR WALKER: What the Chief Justice sets out will be an important matter for this Court to look at. I cannot say ‑ ‑ ‑

GORDON J: The Chief Justice’s approach is contrary to Patel, is it not?

MR WALKER: Your Honour, I do not think, with respect, that his Honour has fully worked all of that out in the comments that his Honour made. That is, with respect, arguably so.

GORDON J: That is why we are asking. If you look at, and sit there, and take the Chief Justice’s reasons alongside those of the President, there is a difference in approach. It does not seem as though Patel may have been - the court was referred to Patel. That is not - I cannot find it cited in the reasons for decision.

MR WALKER: That is my understanding, your Honour.

GORDON J: So the question is really this. Although the complaint was a failure to discharge the jury at trial, what we are concerned with is an appeal against conviction by reference to the irregularities following the reference to what I will call this other material.

MR WALKER: Exactly so.

GORDON J: Now, if one takes President Bell’s reasons for decision, it is difficult to see that that is, in a sense, the approach even being adopted there, in part.

MR WALKER: I am so sorry, your Honour, something broke up. It is difficult to see that?

GORDON J: Where that reasoning of the stepped process through appeal against conviction, irregularities giving rise to a miscarriage of justice, putting to side Crofts - in a sense Crofts can be put to one side for that analysis, giving rise to the second question, if there is a miscarriage is it a substantial miscarriage giving rise to the proviso?

MR WALKER: Yes. With great respect, your Honour has described aspects of this case that means that whatever may arise from the evident divergence of view between the Chief Justice and the plurality does not seem to have been - well, obviously was not of decisional significance. That is why there may well be issues for this Court - there will be issues, I respectfully submit, for this Court, in that general area in the future but this case does not raise it as a matter upon which an outcome is inflected.

NETTLE J: Because the Chief Justice found that there was not a risk of a substantial miscarriage of justice?

MR WALKER: Precisely so. Precisely so. Now, we have to confront at special leave then, how does one lift this case out of simply what I will call a complaint about the outcome of a decision about the quality of an irregularity and its effect on the nature of the ‑ ‑ ‑

NETTLE J: I suppose arguably one way you could do it is to say that the Chief Justice was right in principle and wrong in application.

MR WALKER: We say all three were, of course, wrong in application. In relation to the question as to whether this case called for a proviso, I am bound to take, against myself, I think, a pleading point. Your Honours know what the ground of appeal of the court below was, and for evident reason, because fitting and picking up the classical passage in Crofts, as it were, sidelines the proviso. Now, it sidelines the proviso ‑ ‑ ‑

GORDON J: There may be another way of looking at it, Mr Walker, and that is to say when you seek to elevate it that none of the judgments follow the Patel analysis.

MR WALKER: That is correct. In our submission, what is necessary is an ensuring by this Court that there is clarity in particular as to whether there is any life left in what now might arguably appear to be a superseded way of phrasing the matter in Crofts.

NETTLE J: I suppose that depends in part on the decisions of subsequent advice as to what “vice” is to be taken to mean.

MR WALKER: Yes, very much so. We respectfully submit that if and only if a refused discharge, or discharges, is required to have produced a substantial miscarriage then it is difficult to see what I will call a straightforward application of vice. On the other hand, one cannot read “vice” without appreciating that it is more than what I might call a technical reading of the proviso provision.

GORDON J: But if you follow Patel, what Patel would tell you is that you do not ask that question, what you ask is: is the addition or tendering or making available to the jury of this additional material itself giving rise to a miscarriage of justice? One puts to one side the discharge question and asks, in effect, the first link.

MR WALKER: Yes, but that, as your Honours appreciate, necessarily entails grappling with this relationship between a discharge application and argument about what directions should be given because if, as we submit it must be as a matter of principle, a discharge must not be granted if directions can cure the position, then like the ordinary admission of inadmissible material which must be prejudicial to a degree that renders irregularity significant, that would be, in our submission, to homogenise matters which ought not to be put under just one notion.

NETTLE J: I do not wish to belittle the proposition that you are putting but does it mean anything more than that the fact that appropriate directions could not be given without prejudicing the jury meant that the ineluctable conclusion was that there should have been a discharge?

MR WALKER: That is correct, your Honour.

NETTLE J: That is the main argument for the appeal or is it that it includes something more as to the test as between Crofts, Weiss, Patel and so forth?

MR WALKER: It is the latter. It is more than asking this Court simply to re‑exercise the evaluative assessment of the appropriateness of directions rather than what would otherwise be produced by elimination discharge. It is certainly that. We cannot ‑ ‑ ‑

GORDON J: The reason why the question that Justice Nettle just asked you is quite important is because one is prospective under Crofts - we are now looking at it at a different point of time in relation to whether or not, as a matter of trial as a whole one has a miscarriage. It may be that you get the same answer. It may be that you do not.

MR WALKER: It is difficult not to say simply yes to that, your Honour, but may I put it this way. Crofts is not purely prospective. Crofts is not purely concerned at all with what might be called an interlocutory challenge to a discretionary decision. It is concerned with that which needs to be apparent in retrospect, there having been a conviction, because substantial miscarriage is an adjudication on an accomplished state of affairs.

GORDON J: So “risk of substantial” is the language in Crofts, is it not?

MR WALKER: Exactly so, which means, of course, that when one couples it with language that may well now be questionable as to its currency, that is, conviction inevitable, that other part of the same formula, in our submission there is for this Court raised by this case as a vehicle the matters of approach, perhaps I could call them principle, to which Justice Nettle referred in contrasting a case which would simply say they got it wrong in this case, to, for this Court, it is timely to establish whether, as Chief Justice Bathurst evidently proposes, Crofts should be left to till its own garden, so to speak, while matters of general principle, of which Weiss and Patel are just two important stakes, require an approach to be taken which may have affected the outcome of an appeal which turned on our contention below that there had been a substantial miscarriage.

GORDON J: What are the other stakes other than Patel and Weiss? You just said they were two of the stakes. I was wondering what the others were.

MR WALKER: Yes, I think in terms of – well, apart from the cases establishing that it is conviction against which one appeals rather than refusal of discharge at the end of the day, they are not controversial. It is, with respect, the perennial requirement to attend to the words of the statute which is, in our submission, really the beginning and end though not the big middle of the matter.

Your Honours, it is for those reasons, in our submission, that this is a case which by reason of the clarity with which directions had to be coy and, therefore, were not calculated to do what needed to be done, they were doing as little damage as possible and, therefore, effecting an inadequate cure. That is the indicator of the substantial miscarriage which we submit comes about when a fact finding tribunal, the jury, is ex hypothesi, not the body that should have adjudicated guilt. Phrased in that fashion, with or without the epithet “substantial”, that excludes surely, in principle, the application of the proviso. May it please the Court.

NETTLE J: Mr Baker.

MR BAKER: Thank you, your Honours. Your Honours, it is clear that Patel was not brought to the attention of the Court of Criminal Appeal, and the focus of the appeal was to look at Crofts and, importantly, the respondent’s submission is that the process that Patel indicates must be undertaken, which is to moderate the principles that come from Crofts with the statute and the language of section 6(1), is precisely the process that was undertaken by the plurality in this case.

President Bell in the judgment sets out the approach to take to these matters. President Bell looks at the questions of Crofts and the relevance of that judgment, but equally, in dealing with the notice of appeal that was before the court, also then dealt with the questions of substantial miscarriage of justice. But importantly, it is the respondent’s submission that whilst Patel was not brought to the attention of the court, the same process of indicating that the starting point was, for the determination of the appeal, the terms of section 6(1), very much what the court was doing.

In doing that, the court, through the judgment of President Bell, was looking at the issues that are relevant when a jury must be discharged due to inadmissible evidence and the directions that can remedy any unfairness. The Court of Criminal Appeal ‑ ‑ ‑

NETTLE J: Mr Baker, can I put to you that President Bell’s analysis of the application of the proviso might be thought, on one view of it, to be a view that preceded this Court’s interpretation of Weiss and cases like Baiada Poultry, Lane and Kalbasi. Do you have a response to that?

MR BAKER: It may appear that way, but in the circumstances of this judgment, what the court was seeking to do was deal with the questions of the substantial miscarriage of justice in the proviso, as referenced to the judgment - sorry, the appeal. So when the judgment ‑ ‑ ‑

NETTLE J: I have in mind President Bell’s proposition, or statement, at paragraph 93 of his reasons, where he said that a loss of a chance of acquittal is not necessarily inconsistent with the proviso.

MR BAKER: Yes.

NETTLE J: Whereas cases like Baiada, Baini, Lane, Kalbasi, to name a few, in their explication of vice might be thought to suggest that if there has been the loss of the chance of acquittal that was fairly open to the accused, there has been a substantial miscarriage of justice.

MR BAKER: Well, with respect, the respondent’s position is that President Bell was seeking to focus on the language of the section, of section 6, and that the discussion there at that paragraph was not an indication that the court was acting or pursuing a different course, a course that was not available to the court. What the court was seeking to do at paragraph 93 and onwards was look at the language, or the cases that arise in relation to section 6(1) and move towards setting out a structure for the court to consider initially whether or not there is a miscarriage. So the respondent’s submission is that the court whilst not referring to those other cases in that way was not falling into error in that regard.

Importantly, he does not analyse, in the reasoning of the judgment, the fact that there is a lost chance of acquittal. It appears in 93 that that is not the way that the reasoning in the judgment progresses. The way that the reasoning in the judgment progresses is to have a look at each of the individual impugned pieces of evidence to determine whether or not there is a miscarriage but also in light of the direction that has been given. The respondent’s submission is that this is the correct approach and the approach that the court should have taken. He looks at the individual and then very much moves to the cumulative and that is, perhaps, where I might move now.

When the court looked at the matters individually, before turning to the cumulative effect, the respondent’s submission is that there was no error in that approach because any cumulative effect of the evidence could not be assessed in the abstract – particularly, if I can turn to the evidence of Mr Ayoub which was the first of five pieces of impugned evidence that are relied on.

Mr Ayoub’s evidence was that the applicant had stabbed him in the lower back causing serious injury and Mr El Zamtar’s evidence was that the applicant was concerned that Mr Ayoub would go to the police. The applicant said that he would shoot him and offered Mr El Zamtar money to kill Mr Ayoub or to assist another person to kill Mr Ayoub. Mr Ayoub was also giving evidence that he did not initially tell police that the applicant stabbed him because he was scared of him.

In this context, the respondent’s submission is that when he refers to the applicant as “a little back‑stabber”, “an evil person”, or “a violent person with no remorse”, it is not.....prejudicial. It was consistent with and, indeed, flowed from the evidence that had been given as to the acts of the applicant in stabbing Mr Ayoub. His comments were plainly a manifestation of his hostile feelings towards the attacker. The respondent’s submission is that the Court of Criminal Appeal was correct in finding that although this language was strong and emotional, it would not have had any materially prejudicial effect upon the jury.

The absence of any complaint about this in the atmosphere of the trial confirms the limitations on the prejudicial effect. It was not evidence that was relied upon as a basis for any of the discharge applications. Mr El Zamtar’s evidence, which was the basis for the first and second application, was that where the reference to runners and gangs and drug dealers arises, it is important, the respondent submits, to keep in mind again the context and how that arose.

Those comments, in particular “the gangs and drug dealers”, emerged in cross‑examination when Mr El Zamtar was seeking to repudiate a suggestion that there was a family feud and explained the true origins on any tension between the two men.

The directions, the respondent submits, were sufficient in this regard and the Court of Criminal Appeal’s finding that they counselled the jury to focus exclusively on these three charges and the specificity of the allegations were sufficient in these circumstances to prevent any miscarriage of justice. The Court of Criminal Appeal was correct, in my submission, that it was curative and had a curative effect.

These directions must also be seen in terms of the confined issues in the trial. The two directions that are found in the application book are, firstly, immediately after the second discharge application, and that can be found at application book, page 78. In that direction the trial judge made clear, just immediately before that, that he would amplify the direction if requested. But in seeking to adequately deal with this the trial judge focused on the specific nature of the allegations and made clear that the accused was not facing any other charge; he was simply facing these specific charges.

It is also important to keep in mind that these very confined issues were also then addressed in counsels’ addresses. Again, these particular references to gangs and drug dealers were not elicited by the Crown, nor repeated or relied upon in the closing address.

The officer in charge’s evidence, which is the basis for the third application, that, on the respondent’s submission, did not relevantly increase the risk of miscarriage. When read in context the evidence went no further than that the applicant was located by other police and, as was observed by President Bell, this evidence was more innocuous and perhaps less gratuitous than was suggested on behalf of the applicant, when it is read in context.

That series of questions and answers is at application book 79, and it can be seen that the questions that are being asked of the officer in charge of whether or not she made inquiries to locate Mr Hamide – it is important to be aware that the stabbings occurred in November 2013 and it was in September 2014 when Mr El Zamtar and Mr Ayoub approached police and implicated the applicant.

NETTLE J: Mr Baker, was the accused – I assume he was – of Middle Eastern origin or ethnicity?

MR BAKER: Yes, yes, he was and there was evidence through the trial concerning the community within which they lived and it was patently clear that the applicant was of Middle Eastern ethnicity.

GORDON J: That was the basis of the trial judge dismissing that application at application book 82, paragraph 58?

MR BAKER: Sorry, I just did not hear the last part of your question.

GORDON J: That was one of the reasons given by his Honour for dismissing the application for discharge at paragraph 58, but by that time in the trial, I think his Honour concluded that the jury were well aware of his involvement.

MR BAKER: Yes, and in the questions that were asked of the officer in charge in context, which is a theme that I have started with and repeat, is that in context here the officer in charge was being asked whether or not she had made inquiries to locate Mr Hamide, who was not found until May 2016, and she said:

I did.

17. Mr Hamide was eventually located, is that correct?

1. That’s right.

17. When was he located?

1. May. It was only 2016, it was by the Middle Eastern Organised Crime Squad.

The respondent’s submission is that in context it is clear that the question that was being asked is more innocuous and the answer is more innocuous than suggested. It is a statement which obviously should not have come out in the trial but in order to deal with that the trial judge took curative steps to ensure that the transcript was edited to remove that from the transcript and, again, the statement by the detective was made only a day after the trial judge had directed the jury to focus upon the specific charges before them and that the direction was reiterated a few days later in the summing‑up.

So, the context of this, importantly, is that it is less gratuitous. He was simply making an indication of what arm of the police did locate Mr Hamide and in circumstances where he was charged with a “solicit to murder” charge, a very serious offence. In context, the fact that that arm of the police force did locate and arrest Mr Hamide, the respondent’s submission is that both the trial judge and the Court of Criminal Appeal were correct in finding that there was no miscarriage as a result of that. Even, again, with the cumulative effect of these.....in the evidence, the submission is that the direction was sufficient in these circumstances.

The fourth application and the fifth piece of impugned evidence relates to the evidence of Ms El Zamtar. Her evidence, relevantly, is at application book 83. This evidence again was in cross‑examination and it was in circumstances where it had been suggested to Ms El Zamtar that there had been disharmony between her family and the applicant’s family for a number of years and it was in those circumstances that when she was questioned she gave the answer that is at page 83 in which she talks about the disharmony between the families and also the fact that when she was making phone calls there was this aspect of concern for her as a result of what is suggested to be conduct by the applicant’s family.

The response submission is that the directions specifically did deal with this. The trial judge’s direction to the jury was adequate to address any
prejudicial effect of this evidence. In particular, the direction to the jury that they were to decide the allegations and nothing else, and not to be sidelined by irrelevant matters such as things which may or may not have been going on in the family, which is specifically what is seen in both the – particularly the direction that is given in the summing‑up at application book 12 and 13 directly addressed this issue and the evidence in which Ms El Zamtar had speculated about actions that may have been taken by members of the family. In fact, the trial judge at application book 15 spoke about and directed the jury about this potential bad blood but also said:

it could just have easily arisen because the charges were false as arising from the allegations being true.

The way in which that direction was shaped, in the respondent’s submission, to deal with that evidence removed any potential prejudice.

Finally, back to President Bell’s approach, President Bell did consider the prejudicial effect of the evidence and, in order to consider that prejudicial effect of the evidence and to consider where the directions ameliorated the effect, President Bell went in to look at each of these individual impugned pieces of evidence and his approach was correct and in accordance with this Court in the case of Patel.

NETTLE J: Thank you. Mr Walker, do you have anything to say in reply?

MR WALKER: Briefly, your Honours. As is shown by the reasoning that culminates application book pages 110, 111, paragraphs 154, 155, your Honours appreciate that our argument would be on any appeal that the way in which the learned President dealt with the matter was to commit what I will call the piecemeal error, not by self‑direction to that effect, far from it. But in actuality, as it emerges, there is an elimination by the necessarily separate and individual consideration without the consolidation that his Honour did appreciate was important to be understood for the overall question of substantial miscarriage by failure, eventually, to discharge.

At application book 112, in paragraph 164, there is, we submit, there the suggestion, clearly, that what I will call the prejudicial, extraneous material that ex hypothesi should not have been before the jury, can be, as it were, excluded from the ultimate operative decision about appellate intervention. That, in our submission, runs the risk, fundamentally, of failing to answer the question whether a substantial miscarriage has occurred by reason of the risks imposed by its reception.

That is why directions are so important and, with respect, the directions to which my learned friend understandably returns, repetitively, are directions which are nothing more than the orthodox admonition to juries. Their repetition or their, as it were, ominous import following various junctures in the trial proceedings, in our submission causes more damage rather than avoids it in terms of the coyness that the pragmatic considerations I referred to earlier has evidently produced. May it please the Court.

NETTLE J: Thank you. The Court will adjourn briefly to consider this matter.

AT 12.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.19 PM

NETTLE J: Mr Walker, can I ask you please about the application for special leave, which appears at page 115 of the application book?

MR WALKER: Yes, your Honour.

NETTLE J: Ground 1 is – I do not think it is critically but it is importantly expressed, as you might expect. The special leave questions are doubtless intended to focus it, but as formulated they do not appear to make any reference to any difference - or principle in approach between the Chief Justice and the plurality or whether, for argument’s sake, the approach of the plurality is in principle correct whether it nevertheless takes sufficient account of the explications advice in this Court’s subsequent decisions.

MR WALKER: No, that is all – that I confess as a matter of drafting is implicit rather than explicit in those questions, your Honour.

NETTLE J: Yes, how would one go about making it explicit?

MR WALKER: By posing contrasts that emerge from the way in which your Honours have read and heard the argument.

NETTLE J: Yes.

GORDON J: I think, to be blunt, Mr Walker, we are concerned that the special leave questions and those submissions are not the things about which we are ‑ ‑ ‑

NETTLE J: Principally concerned.

MR WALKER: No, quite.

NETTLE J: I understand the seriousness of the matter from the applicant’s point of view but the matters dealt with at the moment in questions 1 and 2 are essentially questions of whether or not the court below was correct in the application of accepted principle.

MR WALKER: As your Honours have heard, we accept that we need to go further than that and we have tried to do so but not in the drafting of those questions.

GORDON J: Is it possible to augment the proposed appeal ground to make those explicit?

MR WALKER: Yes, it is and it would be by reference to what I will call the rival contentions to a degree at least thrown up by the differences between the Chief Justice and the plurality.

NETTLE J: Well, obviously you cannot formulate such a ground as you stand there. Perhaps we should hear from Mr Baker. Mr Baker, you have doubtless heard what we have just said?

MR BAKER: Yes.

NETTLE J: It does appear that there is a question of principle involved here as opposed simply to application of accepted principle, but it is not yet sufficiently formulated. If leave were to be granted upon condition that there would be an amended notice of appeal expressing appropriately the proposition that has just fallen from Mr Walker as to the correct application of the proviso, what would you say?

MR BAKER: The respondent would not say that there was any unfairness or prejudice to the respondent, it is just simply - and I do not wish to reargue any points but there is no disagreement between the parties about the correct approach and the principles involved. In this case the respondent has already submitted that that is the approach the court took.

But to answer the question about whether the respondent would say that there was any unfairness in now recasting the special leave question, I do not take any point.

NETTLE J: Thank you.

MR BAKER: But, fundamentally, yes, both parties do agree that Patel is the correct approach and that is the approach that we have taken in this case and so there is no issue to be resolved, on the respondent’s submission.

NETTLE J: Thank you. We are not persuaded that this would represent an appropriate vehicle for the grant of special leave or, therefore, that it would be in the interests of justice in the particular circumstances of this case to grant the application. The application is accordingly dismissed.

AT 12.25 PM THE MATTER WAS CONCLUDED