Fray v WA

(2007) 33 WAR 361; [2007] WASCA 92

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Leave to appeal against conviction
4. › Extension of time
5. › Substantial delay
6. › Whether exceptional circumstances shown
7. › Criminal Appeals Act 2004 (WA), s 28(3), (4)
1. Criminal Law
2. › Appeal
3. › Leave to appeal against conviction
4. › Test for leave
5. › Whether ground has reasonable prospect of succeeding
6. › Criminal Appeals Act 2004 (WA), s 27(2)
1. Criminal Law
2. › Appeal
3. › New evidence on appeal
4. › Evidence available at trial but not used
5. › Whether new evidence shows miscarriage of justice
6. › Whether evidence strong enough to show innocence or raise doubt about conviction
1. Criminal Law
2. › Evidence
3. › Joint trial
4. › Out-of-court statement of co-accused
5. › Direction that statement not evidence against other accused
6. › Whether direction must be given when evidence adduced as well as in summing up
7. › Whether failure to direct at time of adduction constitutes error of law

Quick Take

A trial judge is not required as a matter of law to direct the jury at the time a co-accused's out-of-court statement is read that it is not evidence against the other accused, provided a proper direction is given in the summing up. While it is preferable to give the direction on both occasions, failure to do so at the earlier occasion is not an error of law and does not constitute a miscarriage of justice, particularly where the co-accused subsequently gives the same evidence on oath.