Naraidoo v WA Police - [2024] WASC 429

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NARAIDOO -v- WA POLICE [2024] WASC 429
CORAM:   MCGRATH J
HEARD:   17 OCTOBER 2024
DELIVERED          :   21 NOVEMBER 2024
FILE NO/S:   SJA 1048 of 2024
BETWEEN:   VLADIMIR MIGUELITO NARAIDOO
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1048 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number            :   PE 2470/2024

Catchwords:

Criminal law - Appeal against conviction - Breach of Family Violence Restraining Order - Miscarriage of justice - Verdict unreasonable or could not be supported having regard to evidence - Application to adduce further evidence

Legislation:

Criminal Appeals Act 2004 (WA), pt 2, s 8(2)
Restraining Orders Act 1997 (WA), s 61(1)

Result:

Leave to appeal granted on grounds 1 and 2
Application to adduce further evidence on appeal granted
Appeal allowed
Conviction quashed and acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	Mr C M Townsend & Ms J L Tonkin
Respondent	:	Mr C D Tan

Solicitors:

Appellant	:	Perrella Legal
Respondent	:	State Solicitor's Office

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

Beamish v The Queen [2005] WASCA 62
DPJB v The State of Western Australia [2010] WASCA 12
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Jago v The State of Western Australia [2022] WASCA 2
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27

MCGRATH J:

The appellant appeals his conviction of one charge of breaching a family violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (RO Act).
The appellant contends that there was a miscarriage of justice in that the verdict was unreasonable or could not be supported by the evidence at trial. Further, the appellant appeals the conviction on a second ground that new evidence has been obtained, subsequent to the trial, that casts significant doubt on the guilt of the appellant and consequently, there has been a miscarriage of justice.
For the following reasons, I have determined that leave to appeal should be granted and that the appeal must be allowed.

Procedural history in the Magistrates Court

On 11 July 2024, the appellant appeared in the Perth Magistrates Court for trial represented by a legal practitioner.
At the commencement of the trial, the prosecutor stated that the prosecution case was that the appellant, whilst subject to a family violence restraining order that prohibited him…

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.

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Details

Case: [2024] WASC 429
Decision Date: 21 NOVEMBER 2024

CaseChat Overview and Summary

The matter involved Naraidoo, the appellant, who was convicted of breaching a Family Violence Restraining Order. The trial took place in the Magistrates Court of Western Australia, and the appeal was heard in the Court of Appeal. The appellant challenged the conviction on the grounds that the verdict was unreasonable or could not be supported by the evidence presented, and sought to adduce further evidence in the appeal.

The court needed to decide whether the verdict was indeed unreasonable or unsustainable in light of the evidence, and if the application to present additional evidence was permissible. The legal issues revolved around the interpretation of the phrase "could not be supported" in the context of a verdict, and whether the evidence presented during the trial was sufficient to support the verdict of guilt. Furthermore, the court had to consider whether the appeal court could admit new evidence that was not presented at the original trial.

The Court of Appeal examined the evidence and concluded that the verdict was unreasonable and could not be supported by the evidence presented at the trial. The court found that there were significant discrepancies and inconsistencies in the evidence provided by the witnesses, which undermined the reliability of the verdict. In addition, the court held that it had the authority to admit new evidence in exceptional circumstances, and in this case, the appellant's application to adduce further evidence was granted. The appeal was thus allowed, and the conviction was quashed.

The Court of Appeal quashed the conviction and ordered a retrial. The court further directed that the new evidence provided by the appellant could be considered during the retrial. This decision highlights the importance of ensuring that verdicts are both reasonable and supported by reliable evidence, and also underscores the role of the appeal court in reviewing the correctness of a conviction and the admissibility of new evidence.

Orders