Har v WA [No 2]

(2015) 49 WAR 266; [2015] WASCA 249

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Evidence
4. › Cross-examination as to credit
5. › Discretion to disallow questions injuring witness's character
6. › Whether trial judge took into account irrelevant considerations
7. › Whether decision plainly unreasonable or unjust
8. › Evidence Act 1906 (WA), s 25
1. Evidence
2. › Cross-examination
3. › Questions solely as to credit
4. › Proper construction of s 25 of the Evidence Act 1906 (WA)
5. › Preconditions for exercise of discretion
6. › Mandatory relevant considerations under s 25(2)
7. › Whether prior false complaint of sexual abuse admissible to attack credibility
1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Denial of right to cross-examine complainant as to credit
5. › Whether substantial miscarriage of justice occurred
6. › Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
1. Criminal Law
2. › Appeal against conviction
3. › Exercise of discretion
4. › Appellate review of discretionary decision
5. › Whether irrelevant considerations taken into account
6. › Whether result plainly unreasonable or unjust
7. › House v The King (1936) 55 CLR 499

Quick Take

Section 25 of the Evidence Act 1906 (WA) requires the court to focus on the questions proposed to be put to the witness, not on the witness's anticipated answers. The collateral nature of cross-examination as to credit is not, of itself, a relevant consideration under s 25 because the section is specifically directed to collateral issues. Where a complainant in a sexual offence case has previously made a false complaint of sexual abuse against another person, the truth of that imputation will ordinarily seriously affect the court's opinion as to the complainant's credibility, and the proper exercise of discretion will require that the cross-examination be permitted.