Cramphorn v Bailey

[2014] WASCA 60

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Leave to appeal
5. › Whether proposed grounds have reasonable prospect of succeeding
6. › Criminal Appeals Act 2004 (WA), ss 9, 18
1. Criminal Law
2. › Appeal
3. › New and fresh evidence on appeal
4. › Distinction between new evidence and fresh evidence
5. › Whether evidence capable of establishing miscarriage of justice
6. › Criminal Appeals Act 2004 (WA), ss 39, 40
1. Criminal Law
2. › Trial
3. › Fairness of trial
4. › Self-represented litigant
5. › Failure to inform of entitlement to make opening address
6. › Whether productive of miscarriage of justice
7. › Criminal Procedure Act 2004 (WA), s 143
1. Criminal Law
2. › Trial
3. › Protection of witnesses
4. › Cross-examination by alleged perpetrator of violence
5. › Whether s 44C of Restraining Orders Act 1997 (WA) protects the examiner or the person being examined
6. › Restraining Orders Act 1997 (WA), s 44C

Quick Take

Section 44C of the Restraining Orders Act 1997 (WA), which provides for cross-examination through an intermediary, protects the person being cross-examined (the alleged victim), not the examiner (the alleged perpetrator). Rule 10A of the Restraining Orders Regulations 1997 (WA) (screens and CCTV) applies only to proceedings that are 'a matter relating to a restraining order', not to criminal proceedings for breach of a police order. The failure to inform a self-represented accused of the right to make an opening address does not necessarily give rise to a miscarriage of justice, particularly where the prosecutor's opening was brief and the case was simple.