Marshall v WA

[2007] WASCA 96

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Drug offences
3. › Possession with intent to sell or supply
4. › Methylamphetamine
5. › Whether trial judge required to direct jury that prosecution must negative possession by co-occupants
6. › Whether direction on circumstantial evidence adequate
1. Criminal Law
2. › Drug offences
3. › Possession with intent to sell or supply
4. › Heroin
5. › Right to silence
6. › Whether direction in relation to accused's right of silence adequate after prosecution impermissibly led evidence of silence
7. › Whether substantial miscarriage of justice
8. › Criminal Appeals Act 2004 (WA), s 30(4)
1. Criminal Law
2. › Appeal
3. › Fresh evidence
4. › Whether evidence cogent, plausible and relevant
5. › Whether significant possibility jury acting reasonably would have acquitted
6. › Distinction between fresh evidence and new evidence
7. › Whether evidence advanced appellant's case
1. Criminal Law
2. › Appeal
3. › Fresh evidence
4. › DNA evidence
5. › Whether DNA evidence undermined fresh evidence where witness claimed to be biological son of appellant
6. › Qualification 'unrelated to' in DNA probability evidence

Quick Take

Where fresh evidence raises the possibility that a biological relative of the accused was responsible for a drug offence, the 'unrelated to' qualification in DNA probability evidence may significantly undermine the prosecution case, requiring the DNA evidence to be recast. The distinction between fresh and new evidence remains important: evidence known to the accused or discoverable with reasonable diligence before trial, or not led for tactical reasons, will not ground a fresh evidence appeal. The failure of trial counsel to object to inadmissible evidence of the exercise of the right to silence, combined with a general direction on the right to silence and a strong prosecution case, may result in the proviso being applied under s 30(4) of the Criminal Appeals Act 2004 (WA).