Ark v WA

[2014] WASCA 45

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Admissibility of evidence
4. › Evidence of accused's custody status
5. › Whether evidence that accused was in custody awaiting trial was inadmissible and prejudicial
6. › Whether prejudice could be cured by direction to jury
1. Criminal Law
2. › Appeal against conviction
3. › Fresh evidence on appeal
4. › Recantation of evidence by trial witness
5. › Principles applicable to recantation evidence
6. › Credibility of recanting witness
7. › Whether reasonable jury could accept recantation evidence as true
8. › Criminal Appeals Act 2004 (WA), ss 39, 40
1. Criminal Law
2. › Sentencing
3. › Sexual offences against children
4. › Aggravated sexual penetration of de facto child
5. › Totality principle
6. › Whether total effective sentence of 12 years' imprisonment was manifestly excessive
7. › Whether offending fell towards upper end of scale

Quick Take

The case provides a thorough restatement of the principles applicable to criminal appeals based on recantation evidence, confirming that a recanting witness's evidence must be assessed for credibility, cogency and plausibility, with particular attention to the reasons for recantation and the strength of other evidence supporting the conviction. Where the appellate court has access to the full audiovisual record of the complainant's trial evidence, the court may be able to form its own opinion on credibility rather than merely asking whether a reasonable jury could accept the recantation as true. Evidence that an accused was in custody on remand when making admissions is admissible as part of the factual matrix and any prejudice is curable by direction.