Mallard v The Queen

(2003) 28 WAR 1; [2003] WASCA 296

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Reference by Attorney-General of petition for clemency
4. › Approach to be taken by Court
5. › Whether Court may re-adjudicate grounds already heard and disposed of
6. › Whether confined to fresh material
7. › Sentencing Act 1995 (WA), s 140(1)(a)
1. Criminal Law
2. › Appeal
3. › Fresh evidence and new evidence
4. › Distinction between fresh evidence and new evidence
5. › Test for setting aside conviction on fresh evidence
6. › Whether significant possibility jury would have acquitted
1. Criminal Law
2. › Appeal
3. › Non-disclosure by Crown
4. › Duty of prosecution to disclose material
5. › Effect of non-disclosure
6. › Whether loss of chance fairly open to accused of being acquitted
1. Evidence
2. › Expert evidence
3. › Polygraph or lie detector evidence
4. › Control Question Test (CQT)
5. › Whether polygraph evidence admissible
6. › Whether sufficient scientific basis and acceptance within relevant scientific community

Quick Take

Polygraph evidence based on the Control Question Test (CQT) is inadmissible in criminal proceedings in Western Australia, as the technique lacks sufficient scientific basis and acceptance within the relevant scientific community (psychology and psychophysiology). On a reference of the whole case under s 140(1)(a) of the Sentencing Act 1995 (WA), the Court's jurisdiction is confined to fresh material and does not permit re-adjudication of grounds already heard and disposed of absent cogent fresh evidence. Where Crown non-disclosure is established, the test is whether the petitioner lost a chance fairly open to him of being acquitted, not the stricter fresh evidence test.