Micalizzi v WA

[2013] WASCA 96

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Right to silence
4. › Whether trial judge's directions infringed right to silence
5. › Whether defence counsel's forensic decision to adduce evidence explaining silence constituted waiver
6. › Whether miscarriage of justice
7. › Petty v The Queen (1991) 173 CLR 95
1. Criminal Law
2. › Defences
3. › Duress
4. › Criminal Code (WA), s 31(3)
5. › Whether act reasonably necessary to resist actual and unlawful violence
6. › Evidential burden on accused
7. › Relevance of failure to contact police
1. Criminal Law
2. › Appeal against conviction
3. › Conduct of defence counsel
4. › Rational forensic decision
5. › Whether accused bound by counsel's tactical decisions
6. › Whether miscarriage of justice

Quick Take

Where defence counsel makes a deliberate forensic decision to adduce evidence from the accused explaining why the accused exercised the right to silence during a police interview, this constitutes a waiver of the right to silence on that issue, permitting the trial judge to comment on the accused's failure to raise the relevant matter with police. The waiver is limited to the occasion and subject matter in question. The test for whether such a forensic decision binds the accused is objective: whether the decision is capable of explanation on the basis that counsel was endeavouring to obtain a forensic advantage.