Bropho v WA [No 2]

[2009] WASCA 94

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Trial by judge alone
3. › Assessment of evidence
4. › DNA paternity evidence
5. › Whether paternity index used by expert witness reliable
6. › Whether trial judge considered DNA evidence together with all other evidence
7. › Whether trial judge adequately set out reasons for judgment
1. Criminal Law
2. › Evidence
3. › Expert evidence
4. › Extent of necessary expertise to express opinions
5. › Whether proposed expert had sufficient qualifications and expertise in relevant field
6. › Criminal Procedure Act 2004 (WA), s 98(2)
1. Criminal Law
2. › Sentence
3. › Unlawful carnal knowledge of child under 13
4. › Aggregate sentence
5. › Concurrency of sentences
6. › Whether age and health of offender justified total concurrency
7. › Whether aggregate sentence manifestly inadequate
8. › Criminal Code (WA), s 185(1) (repealed)
1. Criminal Law
2. › Appeal
3. › Prosecution appeal against sentence
4. › Double jeopardy principle
5. › Principles applicable where sentence predates abolition of double jeopardy
6. › Criminal Appeals Act 2004 (WA), s 41(4)(b)

Quick Take

An aggregate sentence of 3 years' imprisonment for five counts of unlawful carnal knowledge of a child under 13 was manifestly inadequate where the sentencing judge ordered total concurrency based on the offender's age and health without adequate reasons, and where there was no medical evidence suggesting the offender was likely to die in custody. The standard of proof for relationship/propensity evidence in criminal trials remains an open question following HML v The Queen.