Alizadehnia v CLARSON
[2002] WASCA 119
•10 MAY 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: ALIZADEHNIA -v- CLARSON [2002] WASCA 119
CORAM: McKECHNIE J
HEARD: 24 APRIL 2002
DELIVERED : 24 APRIL 2002
PUBLISHED : 10 MAY 2002
FILE NO/S: SJA 1159 of 2001
BETWEEN: BIJAN ALIZADEHNIA
Appellant
AND
GEOFF CLARSON
Respondent
Catchwords:
Courts and Judges - Inadmissible evidence - Magistrate referring to evidence not admitted in trial in his reasons - Miscarriage of justice - No new principles
Legislation:
Nil
Result:
Appeal allowed
Re-trial ordered
Category: B
Representation:
Counsel:
Appellant: Mr M M Flynn
Respondent: Mr D W L Renton
Solicitors:
Appellant: Legal Aid of Western Australia
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Parker v The Queen (1997) 186 CLR 494
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
McKECHNIE J: On 24 April 2002, following hearing, I allowed the appeal, set aside the conviction, and remitted the matter for re‑trial before another Magistrate. I indicated that I would publish my reasons later and now do so.
The appellant was charged under the Crimes Act 1914 s 76(1)(b)(ii).
Complaint BM 828/2001
"He intentionally and knowingly used violence against a person carrying out a duty on behalf of the Commonwealth by striking an officer employed by Australasian Correctional Management Pty Ltd across the back with a plastic chair at Curtin Immigration Reception Processing Centre." - Crimes Act s 79(1)(b)(ii).
The incident alleged arose out of a riot at the Curtin Immigration Reception Processing Centre on 4 April 2001.
The appellant was charged along with a number of persons and their trials took place separately in June and July of 2001 before the Broome Magistrate Mr A Bloemen SM. The same prosecutor appeared in each matter and the defendants were each represented by the same counsel.
On 15, 16 and 17 June and 2 July 2001 the Magistrate heard evidence relating to one of the men Al‑Saleh. Upon the conclusion of that hearing the Magistrate decided to delay delivering his judgment until he had heard all matters. He then proceeded to hear charges in relation to Shams on 2 July and at the conclusion of that hearing on 3 July commenced the hearing in relation to the appellant. This case was adjourned part‑heard until 7 July. The hearing resumed after the Magistrate had delivered judgment and sentence with respect to Al‑Saleh.
At the conclusion of the hearing, the Magistrate then heard the trial of Alamdar.
In the course of some of the other trials, a video‑tape of a portion of the incident had been admitted into evidence. However, the video‑tape was not admitted into evidence in the trial of the appellant.
In his closing submission, counsel for the appellant at trial made reference to the video. This was an error probably brought about by the confusion with respect to the evidence of the other trials. The fact that it was apparently thought necessary to sit on the weekend may also have contributed. At all events, counsel said to the Magistrate:
"It would be my submission to you that he wouldn't have jeopardised his position by striking an officer. He faces no other offences before you today in relation to the riots at the detention centre and, as you've said, you've had the opportunity now to watch the video twice and, on my viewing of the video, Mr Alizadehnia's only evident in the latter part of the video when the detainees were being filmed at the bottom of the Delta compound. So there's certainly no doubt that he was there but there's certainly a great deal of doubt about what happened in that short period of time."
Counsel for the prosecution did not refer to the video‑tape.
When the Magistrate came to deliver his judgment later that day, he adopted an irregular course. He had all defendants present in court and then proceeded to give effectively one set of reasons for convicting each of them with particular reference as to why he disbelieved the evidence of each.
In the course of that judgment he made some general remarks which commenced this way:
"My first remarks are in general to the riots as I find happened on the 4th April 2001. The prosecution submitted evidence and exhibits, as I have mentioned previously, videos which I have now had the opportunity of watching three times."
He then dealt with some of the oral evidence before returning to the question of the video‑tapes 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."
A little later he returned again to that theme by saying:
"I had the benefits of the view of the video and all the exhibits."
He reached the view that the prosecution had proved its case beyond all reasonable doubt.
The ground of appeal is that the learned Magistrate erred in law in omitting to give adequate reasons for convicting the appellant. The ground is particularised as follows:
"(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."
Although there are other grounds of substance, I am of opinion that the appeal must be allowed on this ground.
The irregular procedure adopted by the Magistrate made it incumbent on him to carefully analyse the evidence in relation to each defendant and ensure that only evidence admissible against that defendant was considered by him in the case of that defendant.
The video‑tape not being admitted into evidence against the appellant, there was a miscarriage of justice in reference to it by the Magistrate. Despite the comment of defence counsel in closing, I am unable to be satisfied that no substantial miscarriage of justice occurred. Indeed, it is clear that from his express words that the Magistrate did have regard to the video‑tape as part of the material upon which he concluded beyond reasonable doubt that the appellant was guilty of the offence. The tape was not relevant to the offence.
Having allowed the appeal, a question then arose as to whether a re‑trial should be ordered, the appellant having served the sentence imposed upon him.
The order for a re‑trial is discretionary and a number of factors are involved in that decision: see Parker v The Queen (1997) 186 CLR 494 per Kirby J at 530.
Although I regarded the competing factors in this case as nearly in balance, I nevertheless concluded that the interests of justice are such that I should order a re‑trial.
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