SJX v WA

[2010] WASCA 243

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Propensity and relationship evidence
4. › Uncharged acts
5. › Admissibility under s 31A of the Evidence Act 1906 (WA)
6. › Whether evidence of sexual misconduct against step-daughter 27-30 years earlier had significant probative value
7. › Whether risk of unfair trial adequately guarded against by directions
1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Propensity evidence
5. › Whether directions on use of propensity evidence and burden of proof occasioned miscarriage of justice
6. › Whether impugned passages reversed burden of proof
1. Evidence
2. › Visually recorded interviews with children
3. › Admissibility
4. › Prescribed requirements
5. › Whether interview conducted so that statements not elicited by leading questions as far as practicable
6. › Meaning of 'leading questions' in reg 5
7. › Distinction between questions leading in substance and questions leading in form
8. › Evidence Act 1906 (WA), ss 106HA, 106HB
9. › Evidence (Visual Recording of Interviews with Children) Regulations 2004 (WA), reg 5
1. Criminal Law
2. › Appeal against conviction
3. › Unreasonable verdict
4. › Whether verdicts supported by evidence

Quick Take

Regulation 5(a) of the Evidence (Visual Recording of Interviews with Children) Regulations 2004 (WA) is concerned with questions that are leading in substance, not merely in form. A question is not leading in substance merely because it suggests the topic of an answer or embodies material the child has previously given. The 'as far as is practicable' standard requires an objective assessment of the interview as a whole, not a question-by-question analysis. Propensity evidence may have significant probative value notwithstanding a gap of over 20 years between the uncharged acts and the charged conduct, where there is a significant coincidence of circumstances.