Hardwick v WA

(2011) 211 A Crim R 349; [2011] WASCA 164

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Admission of allegedly unreliable evidence
5. › Child complainant's evidence
6. › Whether contamination by improper interviewing techniques rendered evidence inadmissible
7. › Whether miscarriage of justice occurred
8. › Criminal Appeals Act 2004 (WA), s 30(3)(c)
1. Criminal Law
2. › Evidence
3. › Child witnesses
4. › Interviewing techniques
5. › Leading and suggestive questioning by police
6. › Whether evidence contaminated by improper interviewing
7. › Whether trial judge should have excluded evidence or stayed proceedings
1. Criminal Law
2. › Appeal
3. › Additional evidence on appeal
4. › New evidence distinguished from fresh evidence
5. › Whether additional expert evidence should be admitted
6. › Criminal Appeals Act 2004 (WA), ss 39, 40
1. Evidence
2. › Admissibility
3. › Discretion to exclude unreliable evidence
4. › Residual discretion in criminal trials
5. › Whether trial judge has discretion to exclude evidence based on unreliability
6. › Role of jury in assessing reliability

Quick Take

A criminal trial will not miscarry merely because a child complainant was subjected to improper police interviewing techniques in an earlier excluded interview, where the gist of the complaint remained consistent from the first complaint through to trial, the complaint was made at the first reasonable opportunity before any interviews, and the factors affecting reliability were capable of assessment by the jury. The question whether a trial judge has a discretion to exclude a witness's evidence based wholly or primarily on unreliability remains open in Western Australia.