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[2008] HCA 1
appellant. Appeal allowed. Order of the Court of Appeal of the Supreme Court of Western Australia made on 14 May 2007 set aside. Matter remitted to the Court of Appeal for further hearing and disposition in...
The High Court decided that once the prosecutor asked the jury to treat the husband's calm manner in a short video clip as proof of a cold-blooded murder, the judge had to tell the jury in clear binding terms that they could not use the clip that way because they had not seen the rest of the two-hour recording in which he became emotional. Suggesting it would be 'unwise' or that evidence from the day of the killing was more relevant was only a comment the jury could ignore, not the warning the law demanded. This mistake was an error of law and a miscarriage of justice, so the conviction appeal must go back to the Western Australian Court of Appeal to decide whether the error was so serious that the conviction cannot stand. On the separate point about the wife's blood found inside the husband's jeans pocket, the court held that the prosecutor should have asked the blood expert about it but the defence had a chance to respond in cross-examination, the judge gave an adequate direction requiring the jury to exclude innocent explanations, and no Jones v Dunkel direction against the prosecution was required. The appeal therefore succeeded on one ground only and the case was sent back for the proviso to be considered.
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3,233 words · generated 24/04/2026
Dlshad Hamad Mahmood was tried in the Supreme Court of Western Australia on a charge of wilful murder of his wife, who was found with her throat cut in a passageway at the Kebabistan Restaurant in Mt Lawley on 4 July 2004. The prosecution case was entirely circumstantial. It relied on evidence that the appellant had suspected his wife of infidelity and had hired private investigators, evidence of raised voices at the restaurant that morning (which he denied), expert bloodstain pattern analysis, and the location of the deceased's blood on the appellant's clothing. The murder weapon was never found.
Approximately one week after the killing the appellant accompanied police to the premises and performed a "walk through" re-enactment of his account of events. He demonstrated discovering the body, kneeling beside it, lifting it so that part rested on his knee, and his subsequent actions. The entire re-enactment was recorded on video and lasted more than two hours. During the defence cross-examination of a police officer at trial, counsel tendered only a six-minute portion of that recording that showed the appellant describing how he had held his wife's body. The evident purpose was to provide an innocent explanation for the blood on his clothes. Defence counsel indicated willingness to tender the whole video but the prosecution objected, citing self-serving content. Jenkins J ruled that only the part required by the defence would be received. The excerpt became an exhibit.
In his closing address the prosecutor invited the jury to notice the appellant's apparently unemotional demeanour in the excerpt, suggesting it was "cold-blooded and clinical" and that this reflected the character of the killing itself. Defence counsel responded by reminding the jury that only a short section had been played because the prosecution had objected to the whole video. The following morning, in the absence of the jury, defence counsel applied to re-open the case to tender additional portions of the video in which the appellant could be seen to be emotional when speaking about his wife. Jenkins J refused the application. She considered the evidence was not of sufficient importance to warrant re-opening and that the matter could be dealt with by direction, indicating that demeanour a week later was less relevant than demeanour on the day itself and the evidence of witnesses who heard the appellant distressed shortly after the death.
In summing up, her Honour told the jury it would be unwise to draw any adverse view against the appellant because of his demeanour in the walk-through video. She gave three reasons: only a portion had been seen; the video was made seven days after the death; and more relevant evidence existed of the appellant's emotional state on the day, including the record of interview and the testimony of a witness who heard crying and moaning. She concluded by saying "that's all I wish to say about the law relating to the evidence."
The appellant was convicted. On appeal to the Court of Appeal (Roberts-Smith, McLure and Buss JJA) the prosecution conceded that the prosecutor's invitation had been misleading because the full video showed distress at several points. Roberts-Smith JA held that an appropriate direction could cure the unfairness and that the trial judge's comments had done so; there was no miscarriage of justice. McLure JA agreed that re-opening was not required and that the judge's statement was sufficient, although she regarded the prosecutor's comment as more material than the trial judge had allowed. The appeal was dismissed.
The High Court granted special leave. The joint judgment (Gleeson CJ, Gummow, Kirby and Kiefel JJ, with Hayne J agreeing) held that the trial judge's statements, while strongly expressed, remained comment rather than a binding direction. They did not instruct the jury that it could not safely draw the invited inference from the incomplete excerpt. This was a misdirection on a question of law. The first ground succeeded. The second ground, concerning the deceased's blood found inside the appellant's right trouser pocket, was rejected. The blood had been put to the appellant in cross-examination; the prosecutor had invited the jury to infer that the murder weapon had been placed in the pocket; defence counsel had criticised the failure to ask the blood-spatter expert; and the trial judge had directed the jury that it must exclude as a reasonable hypothesis any innocent explanation (such as a bloodstained hand placed in the pocket). The High Court held that a Jones v Dunkel direction was neither necessary nor appropriate in a criminal trial against the prosecution, that the appellant had had an opportunity to respond, and that the direction given was sufficiently clear. The appeal was allowed on the first ground only. The Court of Appeal's order was set aside and the matter remitted for that Court to consider whether no substantial miscarriage of justice had occurred under the proviso to s 30(4) of the Criminal Appeals Act 2004 (WA).
The High Court grounded its decision in the fundamental division of functions between judge and jury. A direction is an instruction of law that the jury is required to follow; a comment is an opinion the jury may accept or reject and must be told it may reject. The trial judge's summing-up recognised that the prosecutor's invitation was unfair but responded with reasons why the jury should give the excerpt less weight and look instead to more contemporaneous evidence of distress. Those reasons were, in the High Court's view, comment. They left the jury free to decide for itself whether to accept the prosecutor's invitation to treat the observed demeanour as representative and probative of guilt. The law required a stronger step: an unequivocal direction that the jury could not safely draw the inference because it knew too little of the context, and that it must therefore ignore the prosecutor's remarks.
The court emphasised that the prosecutor had made the demeanour inference part of the case. Once that occurred, the balance of the video became relevant to test the inference. The prosecution's earlier objection to the whole video on self-serving grounds could not stand once it chose to rely on part of the recording. The joint judgment noted that the re-enactment contained assertions against interest (presence at the scene, opportunity to commit the murder) as well as exculpatory explanations. Hayne J developed this point at length, observing that the record of the re-enactment was no more self-serving than the videotaped record of interview that the prosecution had tendered in full. The principle that the prosecution must take the assertion as a whole, rather than select a fragment, applied equally to both. The difficulties at trial stemmed directly from the prosecution's failure to tender the complete admissible evidence it possessed.
On the blood-in-pocket ground the court was satisfied that the appellant had been given an opportunity to respond in cross-examination and re-examination. The trial judge had expressly directed the jury that it could not use the evidence against the appellant unless it excluded innocent explanations. That direction was sufficient to meet the standard of proof. The appellant's reliance on Jones v Dunkel was misplaced; the authorities (including the joint judgment in RPS v The Queen and the reasons in Dyers v The Queen) establish that such a direction is not ordinarily given in a criminal trial against the prosecution. The absence of questions to the blood-spatter expert did not require the jury to draw an inference adverse to the prosecution case; the question was whether the jury should entertain a reasonable doubt. The trial judge's direction adequately equipped the jury to decide that question.
Because the first ground succeeded, the High Court remitted the matter rather than itself applying the proviso. It was for the Court of Appeal, having the full record, to decide whether the misdirection occasioned a substantial miscarriage of justice.
Before Mahmood the law was clear that a prosecutor should call all available witnesses whose evidence is necessary to unfold the narrative (Whitehorn v The Queen). It was also settled that when the prosecution leads evidence of an out-of-court assertion it must take the assertion as a whole and cannot select a fragment that helps its case while rejecting the rest (Jack v Smail). Queensland authority in R v Callaghan had been read in Western Australia as permitting the prosecution to choose whether to lead mixed statements that were substantially exculpatory. The High Court in Mahmood clarified that Callaghan does not support that proposition and that, where admissible evidence of mixed statements exists, fair presentation of the prosecution case will ordinarily require the prosecution to lead all of it. Hayne J's reasons therefore tightened the obligation on prosecutors in Western Australia and nationally.
The distinction between directions and comments had been authoritatively stated in Azzopardi v The Queen. Mahmood applied that distinction to a new factual setting: a prosecutorial invitation to draw an inference from incomplete video evidence. The court made plain that a judge who recognises the risk of unfairness must go beyond suggesting that other evidence is more relevant or that an inference would be unwise. The jury must be told, as a matter of law, that it cannot safely draw the invited inference. That requirement is now the settled position.
On the Jones v Dunkel point the law was already against the giving of such a direction in criminal trials against the prosecution (Dyers v The Queen). Mahmood simply confirmed that the rule in Jones v Dunkel does not translate to a requirement that the trial judge prevent the prosecutor from inviting the jury to draw an inference from evidence not fully explored with expert witnesses, provided the accused has had an opportunity to respond and the jury is properly directed on the standard of proof and the need to exclude innocent hypotheses. The direction given by Jenkins J was therefore endorsed as a model of how to handle circumstantial bloodstain evidence.
After Mahmood prosecutors must be more cautious before relying on demeanour evidence drawn from a selective excerpt of a video re-enactment. Defence counsel now have stronger authority to insist on the tender of the whole recording once the prosecutor opens the issue. Trial judges are on notice that comment, however strongly worded, will not suffice where a direction is required. The decision also reinforces that the proviso analysis under s 30(4) of the Criminal Appeals Act 2004 (WA) remains a separate and subsequent step; the existence of a misdirection does not automatically mean the conviction must be quashed.
Paragraph 13 of the joint judgment states: "It was necessary for the jury to be directed, in unequivocal terms, that they knew so little of the context in which the segment of the video recording appeared that they could not safely draw the inference that the prosecutor had invited them to draw, that is to say, that they should ignore the prosecutor's invitation and remarks." In plain English this means the judge had to tell the jury, in language that left no room for argument, "You have seen too little of the tape to treat this man's calm manner as proof of guilt. You must therefore disregard what the prosecutor asked you to infer."
At paragraph 11 the court said: "The distinction between a direction and a comment by a trial judge is referred to in Azzopardi v The Queen. It reflects the fundamental division of functions in a criminal trial between the judge and the jury." Plain-English translation: the judge decides the law; the jury decides the facts. A direction is an order about the law that the jury must obey. A comment is the judge's opinion about the facts that the jury is free to ignore. The trial judge crossed the line by giving an opinion instead of an order.
Hayne J's reasons at paragraph 12 contain the key sentence: "If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence." In everyday language: if the police have a tape in which the suspect both admits he was there and says he didn't do it, the prosecutor cannot play only the bits that sound bad and hide the rest. The whole thing must come in or none of it.
On the blood evidence the trial judge's direction (extracted at paragraph 21 of the High Court reasons) told the jury it must exclude as a reasonable hypothesis that the blood got into the pocket by the appellant putting a bloodstained hand in there "to get something out or to search for something or even just out of habit." This is a textbook direction on circumstantial evidence: the jury cannot jump to the prosecution's preferred explanation unless it has ruled out every plausible innocent one.
Mahmood is triggered whenever the prosecution invites the jury to draw an inference from a selective portion of a video-recorded statement or re-enactment while resisting tender of the balance on the ground that it is self-serving. The precedent applies with particular force where the invited inference concerns demeanour, emotion, or consciousness of guilt and the omitted portions contain material capable of contradicting that inference. It is not limited to video; the principle extends to any out-of-court mixed statement that the prosecution chooses to use in part.
The case also governs situations in which a trial judge, faced with a late application to re-open to tender the balance of such material, refuses the application on the basis that comment or reminder in summing up will suffice. Mahmood holds that if the prosecutor's use has made the balance relevant, the judge must give a binding direction that the jury cannot safely draw the invited inference. Mere suggestion that other evidence is more relevant or that it would be unwise to draw the inference is insufficient.
On the second ground, the decision confirms that bloodstain or other circumstantial physical evidence that is mentioned in a report but not fully explored with expert witnesses does not automatically require a Jones v Dunkel direction or prevent the prosecutor from inviting the jury to draw an inference, provided three conditions are met: the accused has been cross-examined on the point, the jury is told it must exclude innocent explanations beyond reasonable doubt, and the direction uses clear language rather than over-technical "hypothesis" terminology. The fact pattern of an allegation first raised in cross-examination of the accused, followed by prosecutorial submission three days later, followed by a defence complaint that the expert should have been asked, is now squarely covered.
The judgment itself records how the Court of Appeal had treated the same issues. Roberts-Smith JA accepted that the prosecutor's remark was unfair in that it conveyed the implication that the excerpt was representative. He nevertheless considered that the trial judge's reminder that only a portion had been seen, coupled with the direction to consider more contemporaneous evidence of distress, was sufficient to rectify the unfairness and that no miscarriage had occurred. McLure JA went further and held that the prosecutor's comment was material because it linked the act of killing with the appellant's reaction; once that link was made, the balance of the video became relevant. She nevertheless concluded that re-opening would not have been forensically advantageous and that the judge's statement was sufficient. The High Court respectfully disagreed with both analyses on the ground that the statements remained comment rather than direction. Thus the High Court treated the Court of Appeal's reasoning as having identified the unfairness correctly but having failed to insist on the stricter legal response required.
The judgment also treats earlier authorities consistently. It cites Azzopardi for the direction/comment distinction and applies it without qualification. It follows Dyers v The Queen in refusing to give a Jones v Dunkel direction in a criminal trial. It cites RPS v The Queen for the proposition that the question is whether the jury should entertain a reasonable doubt, not whether it may draw a particular inference. It distinguishes Callaghan on the basis that the statement in that case was substantially exculpatory and contained no inculpatory assertions, whereas the walk-through here contained clear assertions against interest. The High Court's treatment therefore narrows the reading previously given to Callaghan in Western Australia and reinforces the Whitehorn obligation to call all evidence necessary to unfold the narrative.
The High Court left open the application of the proviso. The Court of Appeal must now decide whether, notwithstanding the misdirection, no substantial miscarriage of justice actually occurred. That exercise, guided by Weiss v The Queen, will require the appellate court to consider the whole of the record and ask itself whether it is satisfied that the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt. The outcome of that inquiry remains unanswered by the High Court's reasons.
A further open question is the precise content of the direction that should be given in future cases. The joint judgment states that the direction must be "in unequivocal terms" and must tell the jury it cannot safely draw the inference and must ignore the prosecutor's invitation. Whether a direction that says "you must disregard any suggestion that the demeanour in the excerpt is representative" is sufficient, or whether the judge must go further and instruct the jury to put the excerpt entirely to one side for that purpose, is not spelled out. Trial judges will need to craft language that meets the "unequivocal" test without trespassing on the jury's fact-finding role.
The judgment also leaves untouched the forensic calculus for defence counsel. McLure JA observed that tendering the whole video might not have been to the appellant's advantage because it would focus attention on demeanour. The High Court did not disagree with that forensic judgment but held that once the prosecutor used the excerpt the balance became relevant and a direction was mandatory. Defence counsel in future cases must therefore weigh the risk of re-opening against the certainty that, if the prosecutor comments on demeanour from a selective excerpt, the trial judge will be required to give a strong direction. That calculus remains fact-specific and unresolved by any bright-line rule.
Finally, the interaction between the prosecutorial duty to tender the whole statement and statutory regimes governing admissibility of unrecorded admissions (now Criminal Investigation Act 2006 (WA) Pt 11) is noted but not explored. Hayne J flagged the statutory provisions as an important consideration but the court did not need to decide their effect in this appeal. Future cases in which only part of a recorded statement is electronically recorded may require further elaboration of the duty.
Most practitioners do not realise that the duty to tender the whole statement survives even when defence counsel initially tenders only a portion. The prosecution cannot sit back, consent to a limited tender, then exploit the limitation in closing. Once the prosecutor comments on the excerpt, the obligation crystallises and a binding direction becomes mandatory. That forensic trap, and the strictness with which the High Court insisted on a direction rather than comment, is the single most important practical takeaway for both prosecutors and defence counsel in circumstantial cases involving video evidence.
On appeal from the Supreme Court of Western Australia
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.
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.
Evidence - Criminal law - Evidence of blood stains in pocket not put to prosecution witnesses but mentioned by prosecutor in closing - Whether judge required to give a Jones v Dunkel direction.
"Some other things you can take into account: did you notice in the walk-through, the extract which was played to you, the accused man describing how he found his wife and how he held her and I'm suggesting to you that how he held her was a matter well within his knowledge, but did you notice his demeanour? This was on 11 July, a week after her death. Was there any emotion when he was asked about blood and so on? Did you see any sign of emotion in that recounting?
Here is a man who is accused of killing his wife and the police ask him to even take part in this and asked those sort of questions. You saw his reaction, his demeanour. It was, I suggest to you, cold-blooded and clinical and this killing was cold-blooded and clinical."
"… We put in a short section because they object and then they turn around and say, 'On the short section you've seen he's not crying.' Now what is that about?"
"There's one final part of the evidence that I wish to give you directions on and that is in respect to some submissions that were made to you about drawing an adverse inference against the accused because of his demeanour during the walk-through video. [The prosecutor] made some submissions to you about this and then [defence counsel] replied, [and] said that you couldn't draw anything from the accused's demeanour during that video. Now, members of the jury, it would seem to me that it would be unwise for you to draw any adverse view against the accused because of his demeanour in the walk-through video.
There are some reasons for that. The first is that you have only seen a portion of the video. You don't know what his demeanour was during the rest of the video. Secondly, the video was done some seven days after the death. It, in my view, would be more relevant if you were going to take demeanour into account to have regard to the accused's demeanour during the video record of interview taken on 4 July 2004, the very day that Ms Dbag died.
It would also be relevant for you to take into account what some of the witnesses said who were walking past the shop. I think one in particular clearly heard what would have been the accused after Ms Dbag had died and he referred to the sound that he heard coming from the shop at that time as - I think it was Mr O'Hazy and he said that between about 8.50 and 9 am he saw what appears to be the accused distressed, unhappy, angry and upset, crying and moaning.
Members of the jury, that's all I wish to say about the law relating to the evidence."
"You will see an interesting DNA result in that blood was found in the inside of his right - this right-handed accused's pocket, jeans pocket, inside, actually inside his right pocket. What I'm suggesting is he has put the weapon, whatever it was, in there and he has been absent from the restaurant disposing of that before returning and then carrying out this pretence that someone, meaning someone else, killed his wife."
"Then they suggest to you, 'Oh, you know, he had the knife; had the knife in the pocket.' What, they want you to guess and speculate. The witness is called. Why not ask the blood-spatter man, 'Listen, the stain that you say is on the pocket, is that consistent with a bloodstained knife being put into the pocket?' Why not just ask him when he is in the witness box instead of not asking the witness and then three days later suggesting that you can guess and you can speculate."
"… The second result the state relies upon is the blood found in the accused's pocket. The state says this is consistent with the accused putting the murder weapon in that pocket. Again, the significance of this evidence is a matter for you but before you could use that evidence against the accused you would have to exclude as a reasonable hypothesis other means by which the blood could have got in the pocket; for example, if the accused had put his bloodstained hand in the pocket to get something out or to search for something or even just out of habit."
"[I]f a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents. There is no general obligation on the prosecution to call such evidence. The calling of such evidence is a benefit tendered by the prosecution and accepted by the defence."
In Western Australia, Callaghan has been said[31] to stand for the proposition that "[i]t is a matter for the prosecution to determine whether or not it wishes to lead the evidence as part of its case" of an out‑of‑court statement that contains both inculpating and exculpating material. The decision in Callaghan does not establish that proposition and it is a proposition that is not consistent with the proper presentation of the prosecution case. If there is admissible evidence available to the prosecution of out‑of‑court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence.
Mahmood
State of Western Australia
[2007] WASCA 101
(2001) 205 CLR 50
(2000) 201 CLR 414
(2006) 227 CLR 373
(1959) 101 CLR 298
(2002) 210 CLR 285
(2000) 199 CLR 620
(2005) 224 CLR 300
(1983) 152 CLR 657
(1957) 97 CLR 279
(1974) 131 CLR 116
(1984) 154 CLR 563
(1905) 2 CLR 684
(2005) 79 ALJR 1573
(1998) 19 WAR 179
(2001) 25 WAR 217
Appeal allowed. Order of the Court of Appeal of the Supreme Court of Western Australia made on 14 May 2007 set aside. Matter remitted to the Court of Appeal for further hearing and disposition in accordance with the reasons of this Court.