KAZEMI -v- THE QUEEN [2003] WASCA 301

Reported Decision:	(2003) 28 WAR 176
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 301
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:102/2003	Heard:	8 OCTOBER 2003
Coram:	PARKER J TEMPLEMAN J MILLER J	Delivered:	3/12/03
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	FARIBORZ KAZEMI THE QUEEN
Catchwords:	Criminal law Appeal against conviction Cross-examination of co-accused about apparently inconsistent statement Distinction between inconsistent statement and inadequate statement Whether discretion exists to exclude previous inconsistent statement by an accused which is prejudicial to co-accused
Legislation:	Criminal Code, s 689(1), s 570D Evidence Act 1906 (WA), s 21, s 22 Evidence Act 1929 (SA), s 18
Case References:	Bannon v The Queen (1995) 185 CLR 1 Lui Mei Lin v The Queen [1989] 1 AC 288 Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555 R v Myers [1998] AC 124. , Robinson v The Queen (1996) 15 WAR 191 Lowery v The Queen [1974] AC 85 R v Corelli [2001] Crim LR 913 R v Rowson [1986] QB 174 R v Soma [2003] HCA 13 Winning v R [2002] WASCA 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KAZEMI -v- THE QUEEN [2003] WASCA 301 CORAM : PARKER J

TEMPLEMAN J

MILLER J

HEARD : 8 OCTOBER 2003 DELIVERED : 3 DECEMBER 2003 FILE NO/S : CCA 102 of 2003 BETWEEN : FARIBORZ KAZEMI

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Appeal against conviction - Cross-examination of co-accused about apparently inconsistent statement - Distinction between inconsistent statement and inadequate statement - Whether discretion exists to exclude previous inconsistent statement by an accused which is prejudicial to co-accused

Legislation:

Criminal Code, s 689(1), s 570D

Evidence Act 1906 (WA), s 21, s 22
Evidence Act 1929 (SA), s 18

(Page 2)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr L M Levy

Respondent : Mr B Fiannaca

Solicitors:

Appellant : Laurie Levy & Associates

Respondent : State Director of Public Prosecutions

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

Bannon v The Queen (1995) 185 CLR 1
Lui Mei Lin v The Queen [1989] 1 AC 288
Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555
R v Myers [1998] AC 124. ,
Robinson v The Queen (1996) 15 WAR 191

Case(s) also cited:

Lowery v The Queen [1974] AC 85
R v Corelli [2001] Crim LR 913
R v Rowson [1986] QB 174
R v Soma [2003] HCA 13
Winning v R [2002] WASCA 44

(Page 3)

1 PARKER J: I have had the considerable advantage of reading in draft the reasons of Templeman J.

2 I entirely agree with the analysis and conclusion of Templeman J that there were no inconsistencies between Mrs Combo's evidence at trial and her earlier statements to police officers which were not explored in cross-examination.

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 Kazemi v The Queen

Details

AGLC: Kazemi v The Queen [2003] WASCA 301
Case: [2003] WASCA 301
Decision Date: 3 DECEMBER 2003

CaseChat Overview and Summary

The matter under consideration in the High Court of Australia involved an appeal by the appellant, Kazemi, against his conviction for conspiracy to traffic in a commercial quantity of a controlled drug. The appeal centred around the trial judge's decision to permit the cross-examination of a co-accused, who had previously given a statement that appeared inconsistent with his in-court testimony. The co-accused's statement was introduced to challenge his credibility and to support the appellant's case, but the defence objected on the grounds that the statement was prejudicial to the co-accused and should not have been admitted.

The legal issue before the court was whether the trial judge exercised an appropriate discretion in allowing the cross-examination about the inconsistent statement, and whether there exists a discretion to exclude a previous inconsistent statement by an accused if it is deemed prejudicial to a co-accused. The appellant argued that the trial judge failed to sufficiently consider the potential prejudice to the co-accused and that such prejudice outweighed any probative value the statement might have had.

In considering the matter, the court noted that the trial judge did indeed exercise a discretion in allowing the cross-examination and that there is a distinction between an inconsistent statement and one that is merely inadequate. The court held that the trial judge had correctly recognised the probative value of the statement in testing the co-accused's credibility and had considered the potential prejudice to him. The court further found that while prejudice to a co-accused is a relevant consideration, it is not the sole determinant in the exercise of the trial judge's discretion. The trial judge had weighed the competing interests and determined that the probative value of the statement outweighed any prejudice to the co-accused. Consequently, the court concluded that the trial judge had exercised the relevant discretion appropriately and dismissed the appeal.

The final orders of the court were to dismiss the appeal against the conviction, thereby upholding the original decision of the lower court.

Orders

Orders of the court

Appeal dismissed

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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