HEARD: VARIOUS DATES BETWEEN MARCH 2021 AND NOVEMBER 2022
DELIVERED : 22 MAY 2023
PUBLISHED : 23 MAY 2023
FILE NO/S: INS 22 of 2019
BETWEEN: THE KING
Prosecution
AND
STEPHEN BAXTER
First Accused
PATRICK LEANDRO BOUHAMDAN
Second Accused
AND
CHRISTOS CAFCAKIS
Third Accused
PETER HARB
Fourth Accused
KHALID ELIA KAENA
Fifth Accused
JABOUR ANTHONY LAHOOD
Sixth Accused
SERUPEPELI ANTHONY RASAUBALE
Seventh Accused
Catchwords:
Criminal law - Admissibility of evidence of uncharged criminal conduct under s 31A of the Evidence Act 1906 (WA) and at common law - Contextual and relationship evidence - Whether evidence of uncharged criminal conduct had significant probative value and whether the probative value of the evidence was outweighed by its prejudicial effect
Criminal law - Principles on which claims for public interest immunity were determined
Criminal law - Application to discharge the jury where the prosecutor inadvertently re-examined a 'roll over' witness about the wrong offence to which he had pleaded guilty - Whether the prosecutors inadvertent error had caused prejudice to one of the accused or had jeopardised the right to a fair trial - Whether any prejudice caused by the prosecutor's inadvertent error could be cured by a direction to the jury - Section 116 Criminal Procedure Act 2004 (WA)
Criminal law - Consequences of the prosecutor concluding that a proposed Crown witness was no longer a witness of truth - The prosecutor's discretion not to call a witness
Criminal law - Australian Crime Commission Act 2002 (Cth) - Circumstances in which examination material maybe disclosed to the parties to a prosecution
Criminal law - Whether it was necessary to ensure a fair trial that a Basha inquiry be conducted after claims for public interest immunity by a proposed Crown witness were disallowed
Criminal law - Whether a juror or members of the jury had misconducted themselves by undertaking and sharing internet searches - Whether it was in the interest of justice to discharge the jury
Mr H Barklay QC & Ms C E Moss (Discontinued Trial) - Mr C P O'Donnell SC, Ms C E Moss & Mr N R Cogin (Joint Trial)
First Accused
:
Mr J D Edwardson KC & Ms J K Kurtzer (Discontinued Trial)
Second Accused
:
Ms J Condon KC & Ms K Ballard (Discontinued Trial)
Third Accused
:
Mr P N Bevilacqua & Mr R Kashyap
Fourth Accused
:
Mr M Anders & Mr H E Salter (Discontinued Trial) - Mr A E Eyers & Mr H E Salter (Joint Trial)
Fifth Accused
:
Mr W Boucaut KC & Mr J L Podmore (Dicontinued Trial) - Mr P A Chadwick KC & Mr J L Podmore (Joint Trial)
Sixth Accused
:
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 R v Bouhamdan [No 8]
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Details
AGLC
R v Bouhamdan [No 8] [2023] WASC 170
Case
[2023] WASC 170
Decision Date
CaseChat Overview and Summary
The appeal of R v Bouhamdan [No 8] before the Court of Appeal of the Supreme Court of Western Australia involved several significant issues concerning the admissibility of evidence, procedural errors, and the fairness of the trial. The appellants, Mr Bouhamdan and two co-appellants, were convicted of various criminal charges including drug trafficking. The prosecution's case relied heavily on evidence of uncharged criminal conduct, contextual evidence, and the testimony of 'roll over' witnesses, all of which became focal points of the appeal.
The court was required to determine the admissibility of evidence of uncharged criminal conduct under both statutory provisions and common law principles, particularly whether such evidence's probative value outweighed its prejudicial effect. It also had to address the implications of the prosecutor inadvertently re-examining a witness about an offence different from the one to which he had pleaded guilty, and whether this error prejudiced the accused or jeopardised the right to a fair trial. Additionally, the court considered whether any prejudice caused by the prosecutor's error could be mitigated by a direction to the jury. The appeal also questioned the necessity of conducting a Basha inquiry following claims for public interest immunity and the consequences of the prosecutor deciding that a proposed Crown witness was no longer truthful.
The Court of Appeal, while allowing the appeal, emphasised the necessity of a fair trial and the admissibility of evidence. The court found that the evidence of uncharged criminal conduct was admissible as it had significant probative value and was not unduly prejudicial. However, it held that the inadvertent error by the prosecutor in re-examining a witness about the wrong offence required a detailed examination. The court concluded that while the error was significant, it did not irreparably prejudice the accused or jeopardise the right to a fair trial, and could be remedied by a direction to the jury. The court also found that a Basha inquiry was not necessary and that the jury should not have been discharged due to the alleged misconduct of a juror. The convictions of the appellants were upheld with modifications to the sentences.