Abbott v Tavakoli
[2013] WASC 149
•26 APRIL 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ABBOTT -v- TAVAKOLI [2013] WASC 149
CORAM: EDELMAN J
HEARD: 26 APRIL 2013
DELIVERED : 26 APRIL 2013
FILE NO/S: SJA 1117 of 2012
BETWEEN: LEE MARTIN ABBOTT
Appellant
AND
FARID TAVAKOLI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G LAWRENCE
File No :JO 3508 of 2012
Catchwords:
Criminal law – Prosecution appeal from acquittal by magistrate – Magistrate relied upon failure of the prosecution to call material witnesses – Prosecutor not given any opportunity to explain why witnesses were not called - No submission by the defence that the witness should have been called by the prosecutor
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Result:
Leave to appeal granted; appeal allowed
Category: B
Representation:
Counsel:
Appellant: Ms L Eddy
Respondent: Mr G Rodgers
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Gary Rodgers & Associates
Case(s) referred to in judgment(s):
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Kneebone [1999] NSWCA 279; (1999) 47 NSWLR 450
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Terma v The State of Western Australia [2011] WASCA 41
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Winning v The Queen [2003] WASCA 245
EDELMAN J:
Introduction
On 27 August 2012, Mr Farid Tavakoli was tried before a magistrate for the unlawful assault of his sister, Ms Abir Tavakoli contrary to s 313(1)(a) of the Criminal Code 1913 (WA). The charge of unlawful assault raised circumstances of aggravation which were that the assault was in a family or domestic relationship. Mr Tavakoli was acquitted.
The prosecution seeks leave to appeal from that acquittal.[1] The sole ground of appeal is that 'the learned Magistrate erred in law in concluding that a failure to call two eyewitnesses was relevant to whether the learned Magistrate could be satisfied beyond reasonable doubt in circumstances in which it was not open to make an inference that the evidence of those two witnesses would assist the prosecution case'.
[1] Criminal Appeals Act 2004 (WA), s 7(1).
As I explain in the conclusion to these reasons, the learned Magistrate was in a difficult position. However, in the absence of any submission by the defence that the two witnesses should have been called by the prosecution, and in the absence of affording the prosecution any opportunity to make any submission concerning any reason for failure to call the two witnesses, it was not open to his Honour to rely upon that failure as a factor in acquitting Mr Tavakoli.
Leave to appeal is granted and the appeal is allowed.
The case against Mr Tavakoli
The trial of Mr Tavakoli was reasonably brief and very efficient. Two witnesses were called by the prosecution. Those two witnesses were Ms Tavakoli (the complainant) and Senior Constable Vevers, who attended the scene after a call about a domestic complaint and gave evidence about admissions made by Mr Tavakoli.
Ms Tavakoli gave evidence that on 11 February 2012 she was at home at her parents' house.[2] After an altercation with her brother she locked herself in the bathroom.[3] When her parents later arrived home, her father opened the bathroom door. Ms Tavakoli was lying on the bathroom floor where she had been sleeping. Her parents and her brother chastised her.[4] Her brother became aggravated and walked into the bathroom, grabbed her head and smashed it into the tiles, probably four or five times; she was screaming in pain.[5] This continued until Ms Tavakoli's mother came between her and her brother and tried to push Ms Tavakoli's brother off Ms Tavakoli.
[2] ts 5.
[3] ts 6.
[4] ts 7.
[5] ts 7 ‑ 9.
Mr Tavakoli gave evidence in his defence. He said that he was angry with his sister and that he had yelled at her while she was lying in the bathroom.[6] He said that his sister got up and started yelling at him. His mother was between them and his father was behind him. Mr Tavakoli said that his sister pushed him and his father and his mother out of the bathroom. He denied that he had grabbed his sister's head and struck it on the ground.[7] He admitted that he told the police officer who attended that he was 'swinging while she was swinging' and his evidence was that what he meant was that his hand were open, gesticulating in a freestyle movement, to deflect his sister's blows.[8]
[6] ts 53.
[7] ts 54.
[8] ts 55.
The learned Magistrate said in his reasons for decision that the defence case suggested 'some sort of self‑harm some how or other designed as payback by [Ms] Abir Tavakoli for being unhappy and angry about her parents' discipline, her parents' attitude to her and her adult life'.[9] The learned Magistrate described the essential issue as whether 'the prosecution can prove the physical act of assault by [Mr Tavakoli] against his sister'.[10]
[9] ts 72.
[10] ts 72.
The learned Magistrate concluded that the prosecution case had not been proved beyond reasonable doubt. His Honour therefore acquitted Mr Tavakoli.
The burden which was imposed upon the prosecution
It was common ground, and properly so, that the learned Magistrate was significantly influenced in this conclusion by the failure of the prosecution to call Mr Tavakoli's parents. The learned Magistrate explained that the parents could have put key matters beyond reasonable doubt, including 'just who was pushing and who was pulling and so on in the bathroom'.[11] His Honour described their absence as 'a significant problem for the prosecution'.[12] His Honour also said that:[13]
The prosecution has not provided any explanation. The prosecution, understandably, says, effectively, 'Well, it's obvious, isn't it? It's obvious why they're not called.' Because the background to this court case is a family went asunder by some form of - I do not think it is necessarily cultural - it is sort of attitude towards their daughter, their adult daughter.
[11] ts 72.
[12] ts 72.
[13] ts 71.
The reference to what the prosecution 'said' was conjecture. It was not a reference to any statement made by the prosecution. The prosecutor was not asked why the parents were not called and he made no submissions about the matter. The defence made no submission that the prosecutor should have called the parents. The learned Magistrate was left to speculate about the reason for the failure of the prosecution to call the parents.
Two central paragraphs in which his Honour explained his reliance upon the absence of evidence from the prosecution witnesses are as follows:[14]
Now, the prosecution does, I find, in this case, carry a burden - and I am not talking about the burden of proof - but a burden because, for some reasons that I should not speculate about, two eye witnesses to this offence are sitting in the back of the court who could put a lot of things beyond doubt for the prosecution.
...
I simply - and the prosecution need to understand where I cannot find this matter beyond reasonable doubt - and that is that I simply cannot overlook that there were two eye witnesses there and, frankly, if I was to find this matter beyond reasonable doubt, I could criticise myself and perhaps be criticised by the appeal court, that I had not considered just what an impact that has had on this case. It has had a significant impact.
When can the failure of the prosecution to call a witness be a material factor in the assessment of guilt?
[14] ts 72 ‑ 73.
The legal principles concerning the relevance of the failure of the prosecution to call a material witness were mostly common ground in the concise and clearly expressed submissions of both parties on this appeal.
The starting point is that in criminal proceedings there is not a direct transplant of what is sometimes described in civil proceedings, perhaps for want of a more concise definition, as the rule in Jones v Dunkel.[15] In Dyers v The Queen,[16] Gaudron and Hayne JJ said:
... as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
[15] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 632 ‑ 633 [27] ‑ [29] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ); Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, 327 ‑ 328 [120] (Callinan J).
[16] Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, 291 [6].
This passage from Gaudron and Hayne JJ was approved in this State by the Court of Criminal Appeal in Winning v The Queen.[17]
[17] Winning v The Queen [2003] WASCA 245 [5] (Murray J) [111] (Hasluck J) [257] (Roberts‑Smith J).
In R v Apostilides,[18] Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ explained the nature of the prosecution's obligation to call material witnesses in relation to indictable offences:
A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re‑examined.
[18] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 576.
Counsel for Mr Tavakoli submitted on this appeal that the learned Magistrate was correct to find that this case was one of those examples where the prosecutor was in breach of his duty to call material witnesses and that the learned Magistrate was correct to have relied upon the failure of the prosecution to call the parents of the accused and the complainant. That submission must be rejected. The learned Magistrate could not reach the conclusion that the prosecution's failure to call the parents was in breach of the prosecution's duty to call all material witnesses without affording the prosecution the opportunity to make submissions on the issue. For example, it is well established that the prosecution may decide not to call a witness on the basis that the evidence of the witness would be unreliable, untrustworthy or otherwise incapable of belief.[19] In assessing whether such an explanation is accepted, it is necessary for an appropriate course to be taken to enable proper consideration of any assertion of unreliability.[20]
[19] Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, 292-293 [11] ‑ [12] (Gaudron and Hayne JJ), 326 [118] (Callinan J); R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575 ‑ 576 (the Court); Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 674 (Dawson J).
[20] R v Kneebone [1999] NSWCA 279; (1999) 47 NSWLR 450, 462 [60]-[61] (Greg James J; Spigelman CJ agreeing).
The effect of the decision in Apostilides is that in cases in which it might be thought that a witness should be called by the prosecution, there is (i) the possibility of the trial judge or magistrate asking questions of a prosecutor concerning the failure to call a witness, and (ii) the possibility of the trial judge or magistrate inviting a prosecutor to reconsider such a decision and the possibility of comment on this matter to the jury. The joint judgment in Apostilides explained that '[n]o doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.'[21] The same is true of a summary trial; until reasons are given by a prosecutor, it is not possible to speculate on whether the prosecutor has complied with his or her duty.
[21] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575. See also Terma v The State of Western Australia[2011] WASCA 41 [50] (Blaxell J).
Counsel for the appellant on this appeal (who was not counsel at trial) speculated that one possible explanation that might have been given was that the parents might not have been able to give evidence that could assist in determining what happened. In light of the evidence given by Ms Tavakoli and Mr Tavakoli it may be that such an explanation for their absence, without more, would not have been likely to be accepted. But the point remains that the opportunity to provide an explanation was an essential step before any conclusion could be drawn.
This point was also made in Dyers v The Queen[22] by Gaudron and Hayne JJ:
As was held in R v Apostilides,[23] it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. (Emphasis added).
[22] Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, 295 [17].
[23] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575.
The same reasoning applies, by parity, to reasoning of a Magistrate. Just as a jury must not be directed about the failure of the prosecution to call witnesses other than in cases where a prosecutor has given unsatisfactory answers, so too a Magistrate must not rely upon such a failure to call witnesses as part of his or her reasoning towards an acquittal other than in such cases.
Conclusion
As the learned Magistrate recognised, he was placed in a difficult position by the failure of the prosecution to call as witnesses the parents of the complainant and the accused. Perhaps anticipating a possible submission on behalf of the accused that the prosecution was in breach of its duty to call all material witnesses, the learned Magistrate relied upon the prosecution's failure to call those witnesses as part of his Honour's reasons for acquitting the accused. Such a conclusion could only be reached after hearing from the prosecution on the point. The submissions from the prosecution, if satisfactory, would prevent any reliance upon the failure to call the witnesses. If the submissions were unsatisfactory then they would inform the manner in which the failure to call might become relevant. Since the matter was not raised with the prosecution, there was no basis upon which the learned Magistrate could have relied upon the failure of the prosecution to call the two witnesses in reaching his conclusion that Mr Tavakoli should be acquitted.
In this case, in light of the other findings by the learned Magistrate, and the absence of any submission that the prosecution should, on this appeal, proffer an explanation for the failure to call the parents, the respondent properly did not seek to rely upon the proviso contained in s 14(2) of the Criminal Appeals Act. That is, the respondent did not submit that if the learned Magistrate had erred in law by relying upon the prosecution's failure to call material witnesses without hearing from the prosecution, then the appeal might nevertheless be dismissed on the basis that there was no substantial miscarriage of justice.
Leave to appeal should be granted and the appeal allowed.
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