Challis v WA

[2014] WASCA 8

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Edwards direction
4. › Whether required where prosecution did not contend lie was evidence of guilt
5. › Whether real danger jury would treat lie as implied admission of guilt
6. › Zoneff direction sufficient
1. Criminal Law
2. › Appeal against conviction
3. › Misdirection
4. › Whether trial judge misdirected jury that accused admitted all elements of offence
5. › Effect of statutory deeming provision
6. › Misuse of Drugs Act 1981 (WA), s 11(b)
1. Criminal Law
2. › Appeal against conviction
3. › Proviso
4. › Prosecutor's comment on failure of accused to give evidence
5. › Breach of s 8(1)(c) of Evidence Act 1906 (WA)
6. › Whether substantial miscarriage of justice
7. › Criminal Appeals Act 2004 (WA), s 30(4)
1. Evidence
2. › Accused persons
3. › Right to silence
4. › Statutory prohibition on comment by prosecution on failure to give evidence
5. › Proper construction of s 8(1)(c) of Evidence Act 1906 (WA)
6. › Whether confined to evidence on oath at trial

Quick Take

Section 8(1)(c) of the Evidence Act 1906 (WA) is confined to the failure of an accused to give evidence on oath or affirmation at trial; it does not extend to the failure to make statements in out-of-court police interviews. A prosecutor's breach of s 8(1)(c) does not necessarily constitute a serious breach of the presuppositions of a criminal trial precluding application of the proviso, particularly where the accused bore the onus on the only live issue, the breach was momentary, the trial judge gave correct directions on the right to silence, and experienced defence counsel did not object. An Edwards direction is not required where the prosecution does not contend a lie is evidence of guilt and there is no real danger the jury would so reason, even where the accused bears the onus of proof.