ON APPEAL FROM:
Jurisdiction              :  DISTRICT OF WESTERN AUSTRALIA
Coram   :COMMISSIONER REYNOLDS
File Number            :  IND BUN 2 of 2003

Catchwords:

Criminal law - Criminal Code (Cth), s 147(e) - Attempt to cause harm to a public official - Elements of offence - Prosecution required to prove appellant knew that relevant person was a public official – Prosecution not required to prove appellant knew that relevant public official was a Commonwealth public official

Criminal law and procedure - Appeal - Conduct of prosecution case - Miscarriage of justice - Circumstances under which conduct of prosecutor gives rise to real risk of improper influence over jury - Prosecutor has overriding duty to ensure fairness to the appellant - Unfair comments made in cross-examination of appellant - Single incident of unfair conduct not enough alone for trial to miscarry - Unfair to suggest a matter was an established fact when the appellant had expressly denied it - Unfair to imply that the appellant was being evasive when clear answers were given - Unfair comments made in closing address - Unfair to suggest that the appellant alleged police had lied or conspired when no such allegations were made - Unfair to suggest that the appellant's testimony was ridiculous when there was no foundation in the evidence for such a suggestion - Unfair and prejudicial for prosecution to suggest that appellant's testimony was false when evidence supporting the testimony was available to counsel - Cumulative effect of conduct of prosecution case was that appellant was deprived of a fair trial

Criminal law and procedure - Duty of Commissioner to ensure that trial was conducted fairly - Commissioner should have intervened in relation to a number of unfair comments made by prosecutor

Criminal law and procedure - Evidence - Failure of prosecution to call a witness whose testimony supports the appellant - Whether such failure is unfair to the appellant - Crown prosecutor alone bears responsibility for deciding whether a witness for the Crown will be called - Evidence of witness would not have been of assistance to the appellant

Legislation:

Criminal Code (Cth), ss 6.2, 9.1, 10.2, 11.1, 132.1(2A), 132.2(3)(2A), 132.43A, 132.4(4)(6)(7), 132.5(4)(a)(b), 132.5(5)(a)(b)(c), 132.7(3)(c)(d), 132.7(4)(c)(d)(e), 135.1(4), 135.1(8)(a)(b), 135.4(2)(4)(6), 135.4(8)(a)(b), 141.1(2)(a)(b), 142.1(2)(a)(b), 144.1(2)(4)(6)(8), 145.1(2)(4)(6)(8), 145.2(2)(4)(6)(8), 145.3(3), 147.1, 149.1(2)(a)(b)

Criminal Code (WA), s 611A

Result:

Application for leave to appeal granted
Appeal allowed
Conviction quashed

Category: A

Representation:

Counsel:

Appellant: Mr S P Pallaras QC
Respondent: Mr P N Bevilacqua

Solicitors:

Appellant: Max Owens & Co
Respondent: Commonwealth Director of Public Prosecutions

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

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Brown v The Queen [1980]…

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 Paterson v The Queen

Details

AGLC: Paterson v The Queen [2004] WASCA 63
Case: [2004] WASCA 63
Decision Date: 5 APRIL 2004

CaseChat Overview and Summary

The case of Paterson v The Queen involved an appeal against a conviction for the offence of attempting to cause harm to a public official. The appellant, Paterson, was alleged to have committed this offence under section 147(e) of the Criminal Code. The High Court of Australia was tasked with determining several legal issues, including whether the prosecution was required to prove that the appellant knew the public official was a Commonwealth official and the circumstances under which the conduct of the prosecutor could give rise to a risk of improper influence over the jury. Additionally, the court examined the failure of the prosecution to call a witness whose testimony would have supported the appellant.

The court found that the prosecution did not need to prove the appellant knew the public official was a Commonwealth official, but it was essential to demonstrate that the appellant knew the person was a public official. The court emphasised the prosecutor's duty to ensure fairness and noted that a single instance of unfair conduct was not enough for a trial to be considered a miscarriage of justice. However, in this case, the cumulative effect of the unfair comments and conduct by the prosecutor deprived the appellant of a fair trial. The court also held that the Commissioner should have intervened when the prosecutor made unfair comments during cross-examination and closing address. Furthermore, the court concluded that the failure of the prosecution to call a supportive witness did not necessarily make the trial unfair, as the decision to call a witness rests solely with the Crown prosecutor.

The High Court allowed the appeal, quashed the conviction, and ordered a retrial. The court found that the appellant was deprived of a fair trial due to the unfair conduct by the prosecutor and the failure of the Commissioner to intervene. The court highlighted the importance of ensuring fairness in criminal proceedings and the responsibilities of both the prosecutor and the Commissioner in this regard. The case serves as a reminder of the need for careful consideration of the conduct of the prosecution and the role of the Commissioner in maintaining the integrity of the trial process.

Orders