Appeal - Criminal law and procedure - Application for
leave to appeal - Whether reasonable prospects of success - Turns on own facts
Quick Take
1A [name withheld] warning need not follow any particular formula. A direction that tracks the language of [name withheld], [name withheld] and [name withheld] in [name withheld] v The Queen, but says it would be 'unsafe' rather than 'dangerous' to convict, is a sufficient warning. [name withheld] also questioned, without deciding, whether a [name withheld] direction was required at all where the accused could give evidence of an alibi.
2Under s 27 of the Criminal Appeals Act 2004 (WA), a ground alleging a miscarriage of justice from the refusal of a further adjournment to obtain evidence has no reasonable prospect of success unless the appellant shows that evidence was actually excluded. Ordinarily that requires seeking leave to adduce the documents as new evidence on appeal.
3On the facts, records showing that the accused was not connected to the internet would not necessarily have shown that the images were not displayed on the screen. Their relevance to a retrial was therefore at best arguable.
