The appellate court's task under s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is to determine whether the jury's verdict is infected by error — whether the jury must (as distinct from might) have entertained a doubt — not to substitute its own assessment of the evidence. This standard differs from the proviso under s 30(4), which requires the appellate court to be positively satisfied of guilt beyond reasonable doubt. Evidence relating to counts on which directed acquittals have been entered remains admissible as propensity evidence to show sexual interest in the complainant, but cannot be used to prove a tendency to assault children where the acquittals were entered because the complainant's age was not established. Cross-examination answers obtained from Aboriginal witnesses through leading questions containing unstated assumptions, or either/or questions, may be given little or no weight due to the well-established phenomenon of gratuitous concurrence.
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