BSD v WA [No 2]

[2009] WASCA 152

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Credibility of witnesses
5. › Whether direction contravened principle in Robinson v The Queen
6. › Whether direction invited scrutiny of accused's evidence based on interest in outcome
7. › Whether direction confined to defence family witnesses
1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Balance of summing up
5. › Whether failure to direct similarly regarding prosecution family witness resulted in lack of balance
1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Onus of proof
5. › Whether direction comparing competing versions of events reversed onus of proof
1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Uncharged acts
5. › Propensity evidence
6. › Whether propensity warning required where uncharged acts admissible as evidence of sexual interest in complainant
7. › Evidence Act 1906 (WA), s 31A

Quick Take

A trial judge's direction that family members giving evidence for the defence 'are all doing their best on behalf of their loved one' does not contravene the Robinson principle where the direction is expressly confined to witnesses other than the accused and does not invite scrutiny of the accused's evidence based on interest in the outcome. Evidence of uncharged sexual acts admissible at common law as propensity evidence showing sexual interest in the complainant does not require a propensity warning, and the exclusionary rule for propensity evidence does not apply to conduct forming part of the res gestae.