Majinski v WA

(2013) 226 A Crim R 552; [2013] WASCA 10

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Indecent dealing and sexual penetration
4. › Child complainant
5. › Whether miscarriage of justice
1. Criminal Law
2. › Evidence
3. › Witness preparation
4. › Distinction between proofing and coaching
5. › Whether complainant's evidence tainted by prosecutor's pre-trial meeting
6. › Child witnesses
7. › Danger of suggestion
1. Criminal Law
2. › Evidence
3. › Forensic evidence
4. › DNA testing
5. › Failure to test sample
6. › Whether failure to gather evidence constitutes miscarriage of justice
7. › Speculative nature of complaint

Quick Take

The boundary between legitimate proofing and impermissible coaching is crossed only when the course taken by the prosecutor has the effect of suggesting to the witness the evidence that should be given, either expressly or implicitly. Showing a prospective witness their earlier recorded interview and inviting comment is permissible; showing a child complainant a photograph of the accused that is inconsistent with the child's earlier description is inappropriate but does not necessarily taint the evidence if the child adheres to their original account. An appellant cannot complain on appeal about the failure to gather forensic evidence (such as DNA testing of a sample) where no request was made before or during trial and the complaint is entirely speculative.