Kometer v WA

[2012] WASCA 220

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Inadmissible evidence received without objection
5. › Whether failure to object was rational forensic decision
6. › Whether evidence occasioned material prejudice
7. › Criminal Appeals Act 2004 (WA), s 30(3)(b), (c)
1. Evidence
2. › Hearsay
3. › Opinion evidence
4. › Evidence received without objection at criminal trial
5. › Admissibility to explain conduct of witness
6. › Whether evidence admissible for non-hearsay purpose

Quick Take

Where experienced defence counsel deliberately elicits or fails to object to evidence as part of a forensic strategy at trial, the only reasonable inference may be that the failure to object was a calculated forensic decision, precluding a finding of miscarriage of justice on appeal. Evidence explaining why a police officer took a particular operational step (such as ceasing surveillance) is admissible for that non-hearsay purpose even if it contains assertions about third parties.