Smith v WA

[2014] WASCA 90

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Fresh and new evidence
4. › Distinction between fresh and new evidence
5. › Fresh evidence from subsequent proceedings undermining credibility of key prosecution witness
6. › Whether significant possibility jury would have acquitted
7. › Criminal Appeals Act 2004 (WA), ss 30(5), 39(1), 39(3), 40(1)(e)
1. Criminal Law
2. › Appeal against conviction
3. › Fresh and new evidence
4. › New trial or acquittal
5. › Whether all admissible evidence sufficiently cogent to justify conviction
6. › Criminal Appeals Act 2004 (WA), s 30(5)
1. Criminal Law
2. › Evidence
3. › Longman direction
4. › Sexual offences against children
5. › Delay between alleged offence and accused being informed
6. › Whether direction adequate
7. › Whether delay was substantial
1. Criminal Law
2. › Evidence
3. › Recent complaint
4. › Admissibility of evidence of complaint through another witness
5. › Whether complainant must give evidence of content of complaint
6. › Evidence Act 1906 (WA), s 106N, s 106R, s 106T

Quick Take

Where a key prosecution witness's credibility is seriously undermined in subsequent proceedings — including where the prosecution discontinues a related charge on the basis that there are no reasonable prospects of conviction — the record of those proceedings constitutes fresh evidence capable of giving rise to a miscarriage of justice in the earlier trial. Evidence of recent complaint is admissible through another witness where the complainant has given evidence of having made a complaint but cannot remember its content; the rule in Kilby and Ugle excluding complaint evidence applies only where the complainant is not called to give evidence at all.