IBRAHIM -v- HERRING [2008] WASC 91

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 91
Case No:	SJA:1082/2007	Heard:	29 JANUARY, 7 FEBRUARY, 13 MARCH 2008
Coram:	SIMMONDS J	Delivered:	16/05/08
No of pages:	37	Judgment Part:	1 of 1
Result:	Appeal allowed Decision and sentence quashed Case remitted for re-trial before a different magistrate
Category:	B
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Parties:	MOHAMED TAREK IBRAHIM RAL STEVEN HERRING
Catchwords:	Criminal law Conviction for failure to give way, entering choked intersection and failure to obey lane arrow Criminal law Appeal Test for assessment of appeal Assessment of credibility of central prosecution witness Whether errors of fact, failure to allow questions to be asked of witnesses, failure to let in evidence, or failure to take account of contradictions between witnesses Whether trial conducted in manner intimidating appellant and affecting his presentation of his case Whether miscarriage of justice Whether no substantial miscarriage of justice
Legislation:	Criminal Appeals Act 2004 (WA), s 8(1), s 9, s 14 Road Traffic Act 1979 (WA), s 111 Road Traffic Code 2000 (WA), s 73, s 111(1), s 126(2)
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 'AK' v The State of Western Australia [2006] WASCA 245 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Illich v Woodburn [2004] WASCA 148 Jones v Hyde (1989) 85 ALR 23 Rozario v Rollinson [2006] WASC 181 Smith v The Queen (1992) 7 WAR 527 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : IBRAHIM -v- HERRING [2008] WASC 91 CORAM : SIMMONDS J HEARD : 29 JANUARY, 7 FEBRUARY, 13 MARCH 2008 DELIVERED : 16 MAY 2008 FILE NO/S : SJA 1082 of 2007 BETWEEN : MOHAMED TAREK IBRAHIM

Appellant

AND

RAL STEVEN HERRING

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 27969 of 2007, PE 27970 of 2007, PE 27971 of 2007

(Page 2)

Catchwords:

Criminal law - Conviction for failure to give way, entering choked intersection and failure to obey lane arrow

Criminal law - Appeal - Test for assessment of appeal - Assessment of credibility of central prosecution witness - Whether errors of fact, failure to allow questions to be asked of witnesses, failure to let in evidence, or failure to take account of contradictions between witnesses - Whether trial conducted in manner intimidating appellant and affecting his presentation of his case - Whether miscarriage of justice - Whether no substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 9, s 14

Road Traffic Act 1979 (WA), s 111
Road Traffic Code 2000 (WA), s 73, s 111(1), s 126(2)

Result:

Appeal allowed

Decision and sentence quashed
Case remitted for re-trial before a different magistrate

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr M A G Tjhung

Solicitors:

Appellant : In person

Respondent : State…

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 Ibrahim v Herring

Details

AGLC: Ibrahim v Herring [2008] WASC 91
Case: [2008] WASC 91
Decision Date: 16 MAY 2008

CaseChat Overview and Summary

The case of Ibrahim v Herring involved the appellant, Ibrahim, appealing against his conviction for failing to give way, entering a choked intersection, and failing to obey a lane arrow. The appeal was heard in the Supreme Court of Victoria. The appellant challenged the correctness and legality of the decision to convict him, arguing that there was a substantial miscarriage of justice due to several errors in the trial process.

The central issues for the court to determine were whether the trial magistrate had erred in the assessment of the credibility of the prosecution's key witness, whether there were factual errors in the trial, and if the trial was conducted in a manner that intimidated the appellant and affected his ability to present his case effectively. The appellant contended that the trial magistrate had failed to allow necessary questions to be asked of witnesses, had not admitted certain evidence, and had not adequately considered contradictions between witness statements.

The court found that there were significant procedural errors and a failure to properly assess the credibility of the key prosecution witness. The trial magistrate did not allow the appellant to adequately cross-examine the witness and failed to consider discrepancies in the witness's testimony. The court concluded that these errors had a substantial impact on the fairness of the trial, leading to a miscarriage of justice. The appeal was therefore allowed, and the conviction and sentence were quashed. The case was remitted for re-trial before a different magistrate.

Orders

Orders of the court

Appeal allowed

Decision and sentence quashed

Case remitted for re-trial before a different magistrate

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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