Durani v WA

[2012] WASCA 172

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Identification evidence
4. › Whether Domican warning required
5. › Distinction between positive identification evidence and circumstantial identification evidence
6. › Whether identification evidence was disputed
1. Criminal Law
2. › Appeal against conviction
3. › Evidence of complainant's distressed condition
4. › Whether distressed condition corroborative of complainant's account
5. › Whether warning as to weight required
1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Conduct of defence counsel
5. › Failure to call character evidence
6. › Whether material irregularity in judge-alone trial
7. › Whether significant possibility irregularity affected outcome
8. › Criminal Appeals Act 2004 (WA), s 30(3)(c)
1. Criminal Law
2. › Appeal against conviction
3. › Judge-alone trial
4. › Assessment of demeanour
5. › Witness from different cultural background
6. › Whether trial judge failed to assess demeanour

Quick Take

In a judge-alone trial where the trial judge accepts the accused is of good character, the failure of defence counsel to call character evidence is an objectively reasonable forensic decision and does not constitute a material irregularity. The s 106R(7) special witness/CCTV warning is required in judge-alone trials by operation of s 119(3) of the Criminal Procedure Act 2004 (WA), but failure to give it is a trivial and technical error that does not occasion a miscarriage of justice. Whether a direction regarding distress evidence is required when the evidence is used only for consistency of conduct (rather than corroboration) remains an open question.