Bennett v WA

(2012) 223 A Crim R 419; [2012] WASCA 70

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Propensity evidence
4. › Admissibility under statute
5. › Temporal remoteness of prior offending
6. › Whether lapse of time between prior offences and charged offences renders propensity evidence inadmissible
7. › Whether intervening offending restores probative value
8. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Evidence
3. › Prior convictions of accused
4. › Admissibility as evidence of underlying conduct
5. › Whether conviction after trial is admissible as evidence of material facts comprising elements of offence
6. › Whether limited to convictions on guilty plea
7. › Evidence Act 1906 (WA), s 31A, s 47
1. Criminal Law
2. › Res judicata
3. › Application to criminal proceedings
4. › Whether doctrine applies to convictions as well as acquittals
5. › Whether fact of conviction and material facts of offence are incontrovertible as between Crown and accused
6. › Whether accused may lead evidence controverting prior conviction

Quick Take

A prior conviction obtained after trial is admissible in subsequent criminal proceedings in WA as evidence of the material facts comprising the elements of the offence, irrespective of whether the conviction was obtained on a guilty plea or after trial. Per Buss JA, those facts are incontrovertible as between the Crown and the accused by operation of res judicata. The question of the limits of incontrovertibility — including whether the prosecution may augment the facts of conviction with additional evidence, and the permissible scope of cross-examination — was expressly left open. On propensity evidence, temporal remoteness is not determinative of admissibility under s 31A; where a gap in offending is followed by further offending, the court may infer the predisposition persisted.