Starr v WA

[2011] WASCA 170

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Application to discharge jury
5. › Photograph of victim shown during prosecutor's opening address
6. › Whether display of photograph and emotive opening address occasioned miscarriage of justice
7. › Whether trial judge erred in refusing to discharge jury
1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Evidence of co-offender
5. › Co-offender with prior inconsistent statements called by prosecution
6. › Whether trial judge adequately directed jury regarding co-offender evidence
7. › Whether conviction unsafe or unsatisfactory
1. Criminal Law
2. › Appeal
3. › Fresh and new evidence on appeal
4. › Application to adduce new evidence
5. › Statutory declaration of co-offender available before trial
6. › Whether new evidence establishes innocence or raises sufficient doubt
7. › Distinction between fresh and new evidence
1. Criminal Law
2. › Appeal
3. › Conduct of defence counsel
4. › Tactical decisions by counsel at trial
5. › Whether rational tactical decision not to cross-examine on prior inconsistent statement resulted in miscarriage of justice

Quick Take

The display of a non-gruesome photograph of a victim during a prosecutor's opening address, even for an extended period, does not occasion a miscarriage of justice where the trial judge gives adequate directions and the photograph is admissible evidence that will be before the jury in any event. A co-offender's statutory declaration available before trial but not used by defence counsel as a tactical decision constitutes 'new' rather than 'fresh' evidence and will not be admitted on appeal unless it establishes innocence or raises sufficient doubt about the conviction.