Alamdar v CLARSON

[2002] WASCA 120

ALAMDAR -v- CLARSON [2002] WASCA 120

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 120
Published:	10/05/2002
Case No:	SJA:1160/2001	Heard:	24 APRIL 2002
Coram:	McKECHNIE J	Delivered:	24/04/02
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction set aside Matter remitted to be dealt with according to law by a different Magistrate
Category:	A
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Parties:	MOHAMMED JAVAD ALAMDAR GEOFF CLARSON
Catchwords:	Courts and Judges Duty to give reasons Magistrate referring to evidence not admitted in trial in course of reasons Whether miscarriage
Legislation:	Nil
Case References:	Nil Garrett v Nicholson (1999) 21 WAR 226 Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 Liberato v The Queen (1985) 159 CLR 507 Lloyd v Faraone [1989] WAR 154 Love v Australian Securities Commission [2000] WASCA 404 Matsebula v Vandeklashorst [2000] WASCA 141 Mifsud v Campbell (1991) 21 NSWLR 725 Monaghan v Ostrowski [2001] WASCA 331 Pettit v Dunkley [1971] 1 NSWLR 376 Rosenberg v Percival (2001) 75 ALJR 734 Skerritt v O'Keefe [1999] WASCA 183 Talbot v Lane (1994) 14 WAR 120 The Roman Catholic Bishop of Broome v Watson [2002] WASCA 7 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 White v Goodger [2001] WASCA 259

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ALAMDAR -v- CLARSON [2002] WASCA 120 CORAM : McKECHNIE J HEARD : 24 APRIL 2002 DELIVERED : 24 APRIL 2002 PUBLISHED : 10 MAY 2002 FILE NO/S : SJA 1160 of 2001 BETWEEN : MOHAMMED JAVAD ALAMDAR

Appellant

AND

GEOFF CLARSON
Respondent

Catchwords:

Courts and Judges - Duty to give reasons - Magistrate referring to evidence not admitted in trial in course of reasons - Whether miscarriage

Legislation:

Nil

Result:

Appeal allowed

Conviction set aside
Matter remitted to be dealt with according to law by a different Magistrate

(Page 2)

Category: A

Representation:

Counsel:

Appellant : Mr M M Flynn
Respondent : Mr D W L Renton

Solicitors:

Appellant : Legal Aid of Western Australia
Respondent : Commonwealth Director of Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Garrett v Nicholson (1999) 21 WAR 226
Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435
Liberato v The Queen (1985) 159 CLR 507
Lloyd v Faraone [1989] WAR 154
Love v Australian Securities Commission [2000] WASCA 404
Matsebula v Vandeklashorst [2000] WASCA 141
Mifsud v Campbell (1991) 21 NSWLR 725
Monaghan v Ostrowski [2001] WASCA 331
Pettit v Dunkley [1971] 1 NSWLR 376
Rosenberg v Percival (2001) 75 ALJR 734
Skerritt v O'Keefe [1999] WASCA 183
Talbot v Lane (1994) 14 WAR 120
The Roman Catholic Bishop of Broome v Watson [2002] WASCA 7
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
White v Goodger [2001] WASCA 259

(Page 3)

1 McKECHNIE J: The appellant was convicted after trial in the Court of Petty Sessions of one charge of threatening to kill ACM Officer Gillies, the threat being said to have been made to Officer Gillies was accompanied by the appellant holding a piece of glass.

2 His trial took place, consecutively with the trial of a number of other persons, in the Broome Court of Petty Sessions in June and July 2001, although the events generally arose out of a disturbance of a major kind at the Curtin detention centre between 4 and 5 April 2001. The learned Magistrate, Mr A Bloemen, conducted separate hearings in respect of a number of persons but, unusually, he elected to deal with them for judgment together, and on 7 July 2001 the appellant, together with others, were brought into court and judgment was delivered.

3 That method of dealing with the appellant and the others was irregular and gave rise to considerable dangers. It imposed upon the judicial officer the obligation to ensure that consideration was given only to evidence admissible as against each of the persons under consideration. In this case the Magistrate, after introducing each of the persons and their charges, made some general remarks which commenced this way:

"My first remarks are in general to the riots, as I find happened, on 4 April 2001. The prosecution submitted evidence and exhibits, as I've mentioned previously, videos which I've now had the opportunity of watching three times."

4 He then dealt with certain of the oral evidence before returning to the videos, saying:

"I had the benefit of having heard evidence of all parties. I had the benefit of viewing the videos at my leisure and the evidence given during the first trial."

5 A little later he returned again to that theme saying: "I had the benefits of the view of the video and all the exhibits" before dealing with the questions of credibility and coming to the view that the prosecution had proven its case beyond all reasonable doubt. In relation to the present appellant he came to the view that his evidence was not capable of belief.

6 The appellant obtained leave to appeal against his conviction on grounds as follows:

"(1) the learned Magistrate erred in law in omitting to give adequate reasons for convicting the applicant.

(Page 4)

Particulars

(a) the learned Magistrate has referred to a prosecution exhibit, 'I had the benefits (sic) of the video,' - without stating the significance of that evidence in relation to his conclusion to convict the applicant."

7 There are other grounds but, in my view, this appeal must succeed in respect of this first ground. The video was never an exhibit in the trial of the appellant. The irregular course adopted by the Magistrate required him to carefully identify the evidence relevant to this appellant.

8 While, on one view, the Magistrate's comments are simply general comments, I am unable to conclude that he put from his mind consideration of the video when considering the particular case of the appellant. On the contrary, I consider that he had regard to the video when considering the case of the appellant because that is effectively what he said. It was impermissible for him to do so because the video wasn't part of that evidence. This, if nothing else, highlights the dangers of the procedure adopted by the Magistrate in this case.

9 I have come to the view that there has been therefore a miscarriage of justice. I am unable to be satisfied that there was no substantial miscarriage of justice. It is true that the prosecution evidence was strong and it is also true that the Magistrate disbelieved the appellant. However, once it has been shown that the Magistrate had regard to inadmissible material within the trial, it is really impossible to say whether or not that had an effect on the verdict. Clearly there was a miscarriage of justice. Therefore, I allow the appeal, set aside the conviction and remit the matter to the Court of Petty Sessions to be dealt with according to law by a different Magistrate