Ali v The Queen [2005] HCA 8

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, HAYNE, CALLINAN AND HEYDON JJ

RAYMOND AKHTAR ALI APPELLANT

AND

THE QUEEN RESPONDENT

Ali v The Queen

[2005] HCA 8

8 March 2005

B42/2004

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation:

K C Fleming QC with P E Smith for the appellant (instructed by Terry Fisher & Co)

L J Clare with M J Copley for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ali v The Queen

Criminal law – Trial – Miscarriage of justice – Competence of counsel – Joint trial of accused – Whether counsel should have applied for a separate trial – Whether application would have succeeded – Whether accused disadvantaged by joint trial – Whether counsel failed to object to evidence of bad character – Whether counsel failed to advance alternative case – Whether accused deprived of a fair chance of acquittal.

Evidence – Criminal trial – Character of accused – Failure to object to evidence of bad character – Whether objection would have succeeded – Whether evidence admissible for other purpose.

Criminal Code (Q), ss 579B, 668E.

1. GLEESON CJ. The appellant and a co-accused, Amanda Blackwell, were charged with a number of offences following the death, dismemberment, and burial of an infant. The co-accused was the mother, and the appellant was shown by the evidence to be the father. Following a joint trial, before a jury, the appellant was convicted of murder. The co-accused was convicted of manslaughter. The appellant was also convicted of improperly interfering with a corpse, and concealing the birth of a child. The co-accused was also convicted of concealing the birth of a child 2. When first interviewed, and later before the trial, the co-accused provided the police with a number of inconsistent stories about the birth, death, and burial of the child, including accounts in which she accepted sole responsibility. However, in her evidence at the trial, the co-accused said that the appellant was the father of the child, that he was present at its birth, that he took the baby away after it was born, that she never saw the baby again, and that the appellant told her he had disposed of the body. The trial, and the appeals, were conducted on the basis that the only two people who could have been involved in killing the child and disposing of its body were the appellant and the co-accused. The acts were done by one or other or both of them. 3. The appellant, when interviewed by police, denied being present at the birth of the child, or having any connection with the birth or death of the child, or with the disposal of the body. He gave no evidence at the trial. 4. The cogency of the co-accused's testimony against the appellant was diminished by her previous inconsistent stories. Much was made of this, and the trial judge's directions to the jury contained appropriate warnings. Even so, the circumstantial evidence against the appellant was very strong. He was proved to be the father of the child. He was shown to have told many lies about the matter. He had a strong motive to conceal the birth. Most telling of all was the condition of the body, considered in the light of the appellant's experience as a butcher. This appears from the reasons of Callinan and Heydon JJ, and need not be elaborated. 5. After having made an unsuccessful appeal to the Queensland Court of Criminal Appeal on the ground of alleged unreasonableness of the verdicts and errors in the trial judge's summing up[1], the appellant then raised a claim that there had been a miscarriage of justice in that he was not tried fairly because of the incompetence of trial counsel. He was given special leave to pursue that claim in this Court. Upon examination, it has been shown to be without substance. 6. The conduct of trial counsel was criticised on a number of grounds. It was complained that counsel failed to advance a particular theory of the case consistent with his client's innocence of the principal offence. The appellant had maintained, before trial, that he had absolutely nothing to do with the birth or disappearance of the child. That continued to be his case at trial. He gave no evidence, but that was the line pursued in cross-examination and address. Now it is said that trial counsel should have invited the jury to consider, as an alternative hypothesis, consistent with innocence at least of murder, that the appellant "had nothing to do with the death of the child but may have been involved with hiding the corpse". It is worth reflecting upon some of the implications of this theory. The appellant was a butcher, experienced in the removal of sexual organs from goats. The child's skilfully dismembered body had the sexual organs neatly removed. The only two people who could possibly have done that were the appellant and the co-accused. The co-accused gave birth in circumstances that left her weak and distressed. The objective probabilities made it very likely that it was the appellant who dismembered the body. The appellant had consistently denied any involvement. Pursuit of this new theory would require that it be put in cross-examination to the co-accused, and in address. Presumably the hypothesis would have been to the effect that the child was murdered by the co-accused but that the appellant, who happened to be present, although not being implicated in the death of the child, took the body away, butchered it, and buried it. This scenario lacks forensic appeal. It was contrary to everything the appellant had previously said. It was also contrary to the principal line of defence pursued at trial. It was unsupported by any evidence. It could well have been regarded as utterly fanciful. We do not know counsel's instructions from the appellant. We do not know when, or why, a decision was made that the appellant would not give evidence. We do not know what counsel might have brought down upon his client's head had he set out, in the course of the evidence, to lay the foundation for such an hypothesis. If he had put it to the jury without first having put it to the co-accused, he would have exposed himself to devastating comment. How could he sensibly have put it to the co-accused, having regard to his principal line of defence? Furthermore, if such an argument had been advanced, the predictable reaction of the jury might well have been derision. It is not a mark of competent advocacy to pursue at trial every line of argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success. On the contrary, such an approach is the hallmark of incompetence.