Abbott v Tavakoli - [2013] WASC 149

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v Tavakoli

Details

AGLC: Abbott v Tavakoli [2013] WASC 149
Case: [2013] WASC 149
Decision Date: 26 APRIL 2013

CaseChat Overview and Summary

In Abbott v Tavakoli, the court addressed an appeal by the prosecution against the acquittal of the defendant, Tavakoli, by a magistrate. Tavakoli had been charged with drug-related offences. The prosecution sought to appeal the decision based on the magistrate's reasoning, which included reliance on the failure of the prosecution to call certain witnesses deemed material to the case. The central issue before the court was whether the magistrate's reliance on the absence of these witnesses constituted a proper basis for the acquittal. The court also needed to determine if the magistrate had erred in not allowing the prosecution to explain why the witnesses were not called, and whether the absence of a submission from the defence that the witnesses should have been called influenced the magistrate's decision.

The court held that the magistrate erred in concluding that the failure to call the witnesses necessarily undermined the prosecution's case without allowing the prosecution an opportunity to explain the absence of these witnesses. It was noted that the magistrate did not receive any submissions from the defence indicating that the witnesses should have been called by the prosecution, which could have affected the outcome. The court emphasised that the absence of such submissions meant that the magistrate's decision to acquit could not be justified solely on the basis of the prosecution's failure to call these witnesses. Consequently, the court quashed the magistrate's decision and ordered a re-trial.

The final orders of the court were that the magistrate's decision be quashed, and the case be remitted for a re-trial to ensure that all parties had an opportunity to present their cases fully and fairly. This included the prosecution having the chance to explain the absence of the witnesses in question and the defence providing any necessary submissions on the matter. The re-trial was intended to provide a proper and complete examination of the evidence and arguments in the case.

Orders