"Cb" v WA

(2006) 175 A Crim R 304; [2006] WASCA 227

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Prior inconsistent statements
4. › Whether prior out-of-court statement evidence of facts asserted
5. › Witness unable to recall facts but not asserting contrary facts
6. › Evidence Act 1906 (WA), ss 21, 22
1. Criminal Law
2. › Indictment
3. › Particulars
4. › Dates alleged in indictment
5. › Whether dates are elements of offence or particulars
6. › Whether dates became essential by reason of evidence and conduct of trial
7. › Alibi evidence
1. Criminal Law
2. › Trial
3. › Prosecutor's address to jury
4. › Motive to lie
5. › Rule in Palmer v The Queen
6. › Whether prosecutor impermissibly invited jury to consider why complainants would fabricate
7. › Whether redirection by trial judge sufficient
1. Criminal Law
2. › Appeal
3. › Unreasonable verdict
4. › Whether verdict unsafe or unsatisfactory
5. › Whether open to jury to be satisfied beyond reasonable doubt
6. › Criminal Appeals Act 2004 (WA), s 30(3)(a)

Quick Take

Dates specified in an indictment remain mere particulars and do not become essential elements of the offence where the complainants' evidence is consistently vague about timing and the prosecution has not conducted its case on the basis of a specific date, even where the defence contends the offences could only have occurred on a date for which alibi evidence exists. A prosecutor may respond to a specific motive to lie advanced by the defence without breaching the Palmer rule, provided the response does not extend to suggesting the accused bears an onus to show motive or that the absence of motive strengthens the complainant's credibility.