Beins v WA [no 2]

[2006] WASCA 272

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Misdirection
5. › Failure to direct jury that prosecutor's suggestions in cross-examination did not amount to evidence
6. › Whether speculative theories required specific direction to disregard
7. › Whether miscarriage of justice
8. › Criminal Appeals Act 2004 (WA), s 30(3)(c)
1. Criminal Law
2. › Appeal
3. › Proviso
4. › No substantial miscarriage of justice
5. › Whether appellate court satisfied of guilt beyond reasonable doubt on the record
6. › Natural limitations of appellate review
7. › Credibility assessment
8. › Criminal Appeals Act 2004 (WA), s 30(4)
1. Criminal Law
2. › Trial
3. › Summing up
4. › Duty of trial judge to warn jury about impermissible reasoning
5. › Prosecutor's cross-examination suggestions not constituting evidence
6. › Whether general direction against speculation sufficient
1. Criminal Law
2. › Evidence
3. › Drug offences
4. › Statutory presumption of intent to sell or supply
5. › Reverse onus on accused to prove personal use on balance of probabilities
6. › Misuse of Drugs Act 1981 (WA), s 11(a)

Quick Take

Where a prosecutor advances theories in cross-examination and closing address that are unsupported by evidence, a general direction against speculation is insufficient; the trial judge must specifically direct the jury that those theories do not amount to evidence and must not be used as a basis for rejecting the accused's evidence. The proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) cannot be applied where the case turns on credibility and the appellate court has not observed the accused give evidence.