Evans v WA

[2010] WASCA 34

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Defences
3. › Accident
4. › Criminal Code (WA) s 23
5. › First limb (involuntary act) and second limb (unforeseen event)
6. › Whether trial judge erred in directing on second limb instead of first limb
7. › Whether error occasioned substantial miscarriage of justice
1. Criminal Law
2. › Defences
3. › Insanity
4. › Criminal Code (WA) s 27
5. › Capacity to know ought not to do act
6. › Whether knowledge act unlawful sufficient to negate defence
7. › Distinction between knowledge of unlawfulness and capacity for rational moral reasoning
8. › Whether direction adequate where jury specifically asked about relevance of knowledge of unlawfulness
1. Criminal Law
2. › Defences
3. › Insanity
4. › Sane standards warning
5. › Whether trial judge required to warn jury against testing insane person's knowledge by standards of sane person
6. › When warning required
1. Evidence
2. › Hearsay
3. › Out-of-court statements
4. › Statements by deceased to witness
5. › Whether admissible as evidence of truth of contents
6. › Distinction between direct assertion and conduct from which inference may be drawn
7. › Whether misdirection on use of hearsay evidence occasioned substantial miscarriage of justice

Quick Take

The capacity to know one 'ought not' to do an act under s 27 of the Criminal Code (WA) is a capacity to know the act is wrong according to ordinary standards of right and wrong, not merely knowledge that the act is unlawful. A person may lack the relevant capacity even if they know the act is punishable by law, if their mental impairment renders them incapable of reasoning rationally about the moral rightness or wrongness of the act. Where a jury asks about the relevance of the accused's knowledge of unlawfulness, the trial judge must unequivocally explain this distinction. For the defence of accident under s 23, the 'act' for the first limb is the infliction of the wound (a question of whether it was willed), while the 'event' for the second limb is the death (a question of foreseeability).