OWAITI-ZADEH -v- GILL [2012] WASC 465

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 465
Case No:	SJA:1048/2012	Heard:	30 OCTOBER 2012
Coram:	HALL J	Delivered:	30/11/12
No of pages:	20	Judgment Part:	1 of 1
Result:	Leave to appeal granted in respect of grounds 1 and 2 Appeal allowed Conviction and sentence set aside Judgment of acquittal substituted
Category:	B
PDF Version

Parties:	HUSSEIN OWAITI-ZADEH FRANCIS GILL
Catchwords:	Criminal law Appeal against conviction Threat to Commonwealth officer Identification Whether issues in regard to identification evidence properly considered Whether verdict unreasonable and cannot be supported having regard to the evidence Circumstantial case Whether inference that the appellant made threat was open on the evidence
Legislation:	Nil
Case References:	Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Harvey v Matthews [1999] WASCA 58 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Lovell v Fulman [2011] WASC 312 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mills v The State of Western Australia [2008] WASCA 219 Morgan v The State of Western Australia [2011] WASCA 185 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Rasoolifard v Nicol [2001] WASCA 180 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Smart v Albuquerque [2011] WASCA 231 The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : OWAITI-ZADEH -v- GILL [2012] WASC 465 CORAM : HALL J HEARD : 30 OCTOBER 2012 DELIVERED : 30 NOVEMBER 2012 FILE NO/S : SJA 1048 of 2012 BETWEEN : HUSSEIN OWAITI-ZADEH

Appellant

AND

FRANCIS GILL

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B C GLUESTEIN

File No : CI 32 of 2011

Catchwords:

Criminal law - Appeal against conviction - Threat to Commonwealth officer - Identification - Whether issues in regard to identification evidence properly considered - Whether verdict unreasonable and cannot be supported having regard to the evidence - Circumstantial case - Whether inference that the appellant made threat was open on the evidence

(Page 2)

Legislation:

Nil

Result:

Leave to appeal granted in respect of grounds 1 and 2

Appeal allowed
Conviction and sentence set aside
Judgment of acquittal substituted

Category: B

Representation:

Counsel:

Appellant : Mr S D Freitag

Respondent : Mr A D Hills-Wright

Solicitors:

Appellant : Simon Freitag

Respondent : Director of Public Prosecutions (Cth)

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

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Anderson v Davis…

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: [2012] WASC 465
Decision Date: 30 NOVEMBER 2012

CaseChat Overview and Summary

In OWAITI-ZADEH v GILL, the appellant was convicted of making threats to a Commonwealth officer in violation of section 471.5 of the Criminal Code. The appeal to the High Court challenged the conviction, focusing on the sufficiency and reliability of the identification evidence, as well as the reasonableness of the verdict in light of the evidence presented. The appellant argued that the identification evidence was unreliable and that the conviction was unreasonable. The central legal issues were whether the trial judge had properly considered the identification evidence, and if the verdict was unreasonable and could not be supported by the evidence. Additionally, the court needed to determine whether the inference that the appellant made the threat was open based on the evidence.

The High Court held that the trial judge had not adequately considered the reliability of the identification evidence, which was a critical aspect of the prosecution's case. The court found that the identification process was fraught with significant inadequacies, including an identification parade that was not conducted under controlled conditions. The Court also found that the trial judge did not sufficiently address these issues in his evaluation of the evidence. Furthermore, the court concluded that the circumstantial evidence was insufficient to support the inference that the appellant made the threat. Consequently, the verdict was deemed unreasonable and not supported by the evidence. The appeal was allowed, and the conviction and sentence were set aside, with a judgment of acquittal substituted.

Orders

Orders of the court

Leave to appeal granted in respect of grounds 1 and 2

Appeal allowed

Conviction and sentence set aside

Judgment of acquittal substituted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.