Barekzai v WA Police - [2024] WASC 381

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BAREKZAI -v- WA POLICE [2024] WASC 381
CORAM:   TOTTLE J
HEARD:   21 JUNE 2024
DELIVERED          :   17 OCTOBER 2024
FILE NO/S:   SJA 1101 of 2023
BETWEEN:   IZATULLAH KHAN BAREKZAI
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1101 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE BUTCHER
File Number            :   PE 7513 of 2023

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Whether magistrate failed to approach the fact finding on the basis that the appellant was presumed to be innocent - Whether magistrate failed to direct himself as to the Liberato principles - Whether magistrate reversed the onus of proof by drawing negative inferences from the appellant's evidence - Whether magistrate impermissibly drew an adverse Weissensteiner inference from the appellant's evidence - Whether magistrate erred by misconstruing the evidence relating to a possible secondary transfer of the appellant's DNA - Whether the magistrate erred by finding that DNA evidence alone was sufficient evidence in the circumstances to establish appellant's guilt beyond reasonable doubt - No error shown - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S M Whybrow SC
Respondent	:	M L Wong

Solicitors:

Appellant	:	Karrie Louden Barristers and Solicitors
Respondent	:	Director of Public Prosecutions (WA)

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

CHJ v Taylor [2019] WASC 435
De Silva v The Queen [2019] HCA 48
Liberato v The Queen (1985) 159 CLR 507
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Weissensteiner v The Queen (1993) 178 CLR 217
Wells v The State of Western Australia [2017] WASCA 27

TOTTLE J:

Introduction

On 20 November 2023 the appellant was convicted after a trial of one count of indecent assault contrary to s 323 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code). A term of imprisonment of nine months suspended for nine months was imposed. The appellant was also charged with stealing the complainant's belongings contrary to s 378 of the Criminal Code but he was acquitted of that charge. The appellant seeks leave to appeal against his conviction for indecent assault.
The only issue at trial was identification. The appellant's DNA was found on the complainant's underwear and on her external genitalia. The prosecution case depended on satisfaction beyond reasonable doubt that the appellant's DNA was transferred by him to the complainant's underwear and to her body when he assaulted her. The assault took place when the complainant was sitting in the passenger seat of a motor vehicle.
The appellant did not give evidence at trial. The appellant participated in a police interview (a video recording of which was tendered) in which he denied being present or having anything to do with the offending. In the interview the appellant said his occupation involved him maintaining and…

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 Barekzai v WA Police

Details

AGLC: Barekzai v WA Police [2024] WASC 381
Case: [2024] WASC 381
Decision Date: 17 OCTOBER 2024

CaseChat Overview and Summary

The appeal before the court involved the appellant, Barekzai, who contested his conviction for drug-related offences. The case was heard and determined by a single magistrate in the Magistrates Court of Western Australia. Barekzai sought to overturn his conviction on the basis that the magistrate had failed to approach the fact-finding process with the presumption of his innocence, had not correctly applied the principles established in Liberato, had drawn negative inferences from his evidence, had impermissibly drawn an adverse inference in line with the principles in Weissensteiner, had misconstrued the evidence regarding a possible secondary transfer of his DNA, and had erred in finding that the DNA evidence alone was sufficient to establish his guilt beyond reasonable doubt.

The court was required to determine whether the magistrate had erred in the above respects. The central issue was whether the magistrate's handling of the evidence and his application of the law in convicting Barekzai constituted a miscarriage of justice. The court examined the magistrate's approach to the presumption of innocence, the correct application of the Liberato principles, the propriety of drawing negative inferences from the appellant's evidence, and the magistrate's interpretation of the DNA evidence. The court also considered whether the magistrate's conclusions were open on the evidence before him and whether any errors were sufficiently significant to warrant a new trial.

The court found that the magistrate had correctly applied the principles of the presumption of innocence and the Liberato principles. The court held that the magistrate had not improperly drawn negative inferences from Barekzai's evidence or misapplied the principles in Weissensteiner. The court further found that the magistrate's interpretation of the DNA evidence was not erroneous, and that the DNA evidence, when considered in the context of the entire case, was sufficient to support the magistrate's conclusion that Barekzai's guilt had been established beyond reasonable doubt. The court concluded that no error had been demonstrated in the magistrate's handling of the case, and thus the appeal was dismissed.

The court made no order for costs.

Orders