McCreed v The Queen

(2003) 27 WAR 554; [2003] WASCA 275

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Extension of time
4. › Six years out of time
5. › Whether exceptional circumstances shown
6. › Whether miscarriage of justice if extension refused
1. Criminal Law
2. › Trial
3. › Apprehended bias
4. › Trial judge who had previously prosecuted accused for unrelated offence
5. › Whether fair-minded observer might reasonably apprehend bias
6. › Relevance of lapse of time between prosecution and trial
7. › Whether 11½ year gap sufficient to negate apprehension
1. Criminal Law
2. › Trial
3. › Directions to jury
4. › Evidence of complaint
5. › Whether direction on recent complaint correct
6. › Whether s 36BD direction required
7. › Evidence Act 1906 (WA), s 36BD
1. Criminal Law
2. › Trial
3. › Directions to jury
4. › Black direction
5. › Whether given at appropriate time
6. › Whether direction in accordance with Black v The Queen

Quick Take

Where a trial judge has previously prosecuted the accused for a serious criminal offence, the prudent course will ordinarily be self-disqualification, but each case depends on its circumstances. The most significant factor is the lapse of time between the prior prosecution and the current trial. An 11½ year gap, combined with no independent recollection, unrelated offences, and proper conduct of the earlier prosecution, was held insufficient to ground a reasonable apprehension of bias.