Mahmood v State of Western Australia [2008] HCA 1

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HAYNE AND KIEFEL JJ

DLSHAD HAMAD MAHMOOD APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA RESPONDENT

Mahmood v State of Western Australia

[2008] HCA 1

30 January 2008

P39/2007

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 14 May 2007.

3. Remit the matter to the Court of Appeal of the Supreme Court of Western Australia for further hearing and disposition in accordance with the reasons of this Court.

On appeal from the Supreme Court of Western Australia

Representation

J J Edelman with C H Withers for the appellant (instructed by Kott Gunning Lawyers)

B Fiannaca SC with D A Lima for the respondent (instructed by Director of Public Prosecutions for Western Australia)

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

CATCHWORDS

Mahmood v State of Western Australia

Evidence – Criminal law – Portions of "walk through" video tendered by defence at trial – Prosecution objected to tender of whole video – In closing prosecutor invited jury to draw adverse inferences from portions played – Trial judge refused to allow defence to re-open case to tender whole of video – Whether re-opening ought to have been allowed – Whether a direction to the jury was required to overcome prejudicial effects of the prosecutor's invitation.

Criminal law – Practice and procedure – Directions to jury – Distinction between directions and comments – Whether trial judge's statements in summing up amounted to a direction.

Evidence – Criminal law – Duty of prosecutor to tender all inculpatory statements – Whether prosecutor obliged to tender "walk through" video in whole or in part.

Evidence – Criminal law – Evidence of blood stains in pocket – Whether accused had had opportunity to respond to blood-stain allegation – Whether judge's direction to the jury on this point was sufficient.