ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Cases 409
Global Digest
Compiled by: Andrew J. Roberts, LL.B., M.Phil.
Video Reconstruction—Jury Directions—Australia
Mahmood v State of Western Australia [2008] HCA 1
Australia; Judicial comment; Jury directions; Murder; Re-enactments; Video
evidence
The appellant had been convicted of the murder of his wife. In a police interview
he claimed to have become suspicious when she failed to return from the toilet at
the restaurant which they ran. He explained that when he went to see where she
was, he found her body at the rear of the premises. Her throat had been cut. One
week after being interviewed by the police, the appellant agreed to re-enact the
events surrounding the discovery of the body. He accompanied the police to the
restaurant and ‘‘walked through’’ the events of the day and described the position
in which he had found the body and the manner in which he had handled it.
The prosecution’s case against the appellant was circumstantial: no murder
weapon had been found; the appellant had suspected his wife of having an affair
and had hired a private detective to investigate matters; there was evidence that
raised voices had been heard in the restaurant on the morning of the murder.
Expert witnesses were called to give evidence regarding the location of blood at the
premises.
The defence relied on a six-minute sequence of the video recorded re-enactment
in which the appellant explained how he had held his wife’s body. Although defence
counsel indicated a willingness to tender the whole of the video, the prosecution
did not consent to such a course. However, in his closing address to the jury,
prosecution counsel drew attention to the appellant’s demeanour during the sixminute
video sequence played at trial. The jury were invited to consider whether
the appellant had shown any emotion when he was asked about the blood and
were invited to infer that his demeanour was that of someone who had committed
a cold-blooded and clinical murder. In light of this, defence counsel applied to
reopen the case for the defence so that the jury could be shown the recording in
its entirety. This application was refused and the trial judge dealt with the issue
in her summing-up in which she subsequently suggested to the jury that that it
would be ‘‘unwise’’ to draw any adverse inferences against the accused because of
his demeanour during the video recording.
On appeal against conviction, it was common ground that the appellant had
displayed distress and appeared to have been emotionally upset when talking about
his wife at several points in the parts of the video recording which had not been
shown to the jury. The High Court, allowing the appeal, concluded that in order
to overcome the prejudicial effects of the prosecutors remarks it would have been
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