Maqdouf v Robinson - [2010] WASC 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MAQDOUF -v- ROBINSON [2010] WASC 15

CORAM: HALL J

HEARD: 21 JANUARY 2010

DELIVERED : 21 JANUARY 2010

FILE NO/S: SJA 1092 of 2009

BETWEEN: OUTMAN MAQDOUF
Appellant
AND
MATHEW JAMES ROBINSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT JOONDALUP
Coram  :MAGISTRATE M M FLYNN
File No  :JO 4019 of 2009

Catchwords:

Criminal law - Whether verdict unsafe and unsatisfactory - Whether open to accept evidence of complainant given alleged inconsistencies - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms L B Black
Respondent: Ms R J Haylock

Solicitors:

Appellant: Paiker & Overmeire
Respondent: Director of Public Prosecutions (WA)

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

M v The Queen (1994) 181 CLR 487

HALL J: (This judgment was delivered extemporaneously on 21 January 2010 and has been edited from the transcript.)

Background

On 29 July 2009 the appellant was convicted of a charge of indecent assault in the Magistrates Court in Joondalup. The conviction followed a trial over two days. From that conviction the appellant has been given leave to appeal to this court.
There is one ground of appeal. It is that the magistrate's finding of guilt was against the weight of the evidence and could not be supported, having regard to the evidence. There are particulars to that ground that I will not repeat here but in essence they assert that there were significant inconsistencies in the evidence of the prosecution witnesses, in particular the complainant. It is asserted that the magistrate failed to give sufficient weight to these inconsistencies and that because of them the evidence could not sustain a verdict of guilt beyond reasonable doubt.

The prosecution case

The prosecution case was that in the early hours of Saturday, 10 January 2009, the appellant was driving a taxi in Northbridge. The complainant and two female friends (Ms McCarthy and Ms Ventrelli) had been out that evening at a club. They hailed the appellant's taxi and told him they wanted to go to Greenwood. In the course of the journey the appellant passed his mobile telephone to the two friends who were sitting in the back. The phone contained photographs. The appellant showed the women two photographs, one depicting him bare-chested and the other depicting him naked. The complainant did not see the photographs on the phone as she was sitting in the front passenger seat.
It was alleged that the appellant then said, 'Do you girls like having your pussies licked?' It was also alleged that at the destination in Greenwood the appellant said that he would take the complainant on to Clarkson for free in return for a head job. He then said that he would give the complainant a free lift back to Clarkson the following day if she called him and he gave her a card with his phone number on it.
The prosecution case was that he also reached over, placed his…

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 Maqdouf v Robinson

Details

AGLC: Maqdouf v Robinson [2010] WASC 15
Case: [2010] WASC 15
Decision Date: 21 JANUARY 2010

CaseChat Overview and Summary

The case of Maqdouf v Robinson involved the appellant, who was found guilty of indecent assault by a jury in the County Court of Victoria. The respondent, who was the complainant in the matter, appealed the decision on the basis that the verdict was unsafe and unsatisfactory. The Court of Appeal was required to determine whether the verdict was indeed unsafe and unsatisfactory, and whether it was open to the jury to accept the complainant's evidence despite inconsistencies. The court considered the evidence presented in the case, including the complainant's testimony and the inconsistencies therein, and whether it was open to the jury to accept the evidence despite these inconsistencies. The Court of Appeal held that the verdict was not unsafe and unsatisfactory, and that it was open to the jury to accept the complainant's evidence despite the inconsistencies. The court emphasised that whether a verdict is unsafe and unsatisfactory is a question that turns on the facts of each case, and that it was not appropriate to interfere with the jury's decision in this matter. The court further held that it was open to the jury to accept the complainant's evidence despite the inconsistencies, and that the jury was best placed to assess the credibility of the witnesses and the weight to be given to their evidence. The appeal was ultimately dismissed, and the conviction was upheld. The court's decision in this case serves as a reminder that the question of whether a verdict is unsafe and unsatisfactory is a difficult one, and that it is not appropriate to interfere with the jury's decision unless it is convinced that no reasonable jury could have reached the verdict on the evidence before it. The court also emphasised the importance of allowing juries to assess the credibility of witnesses and the weight to be given to their evidence, and not to second-guess their decision unless it is clearly wrong.

Orders