Ferry v The Queen

[2003] WASCA 207

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Cross-examination of accused on previous convictions
4. › Imputations on character of prosecution witnesses
5. › Extent of permissible cross-examination on details of previous offences
6. › Whether disproportionate emphasis on previous convictions caused miscarriage of justice
7. › Evidence Act 1906 (WA), s 8
1. Criminal Law
2. › Evidence
3. › Complainant's motive to lie
4. › Whether prosecutor's invitation to jury to consider absence of motive to lie impermissibly reversed onus of proof
5. › Whether corrective direction by trial judge cured error
1. Criminal Law
2. › Evidence
3. › Secret tape recordings
4. › Admissibility of conversation secretly recorded by complainant's mother
5. › Discretion to admit unlawfully obtained evidence
6. › Surveillance Devices Act 1998 (WA), s 31(1)
1. Criminal Law
2. › Evidence
3. › Video-taped evidence of child complainant
4. › Retrial
5. › Whether edited video tape of complainant's evidence at first trial properly received at retrial
6. › Whether discretion not to require complainant to give evidence again properly exercised
7. › Evidence Act 1906 (WA), ss 106I(1)(b), 106N, 106T(1)

Quick Take

A sentence of 2 years' imprisonment for a single incident of fondling the breasts of a 12-year-old girl is manifestly excessive; the sentencing range for such offences is 9 to 18 months' custody, with non-custodial sentences being common. Where the Crown relies on lies told by an accused only to impeach general credibility rather than as probative of guilt, a lies direction under Edwards v The Queen is both unnecessary and undesirable. A prosecutor's invitation to the jury to consider the absence of a motive for the complainant to lie is impermissible but may be cured by an adequate corrective direction.