Banks v WA

[2018] WASCA 130

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Trial
3. › Summing up to jury
4. › Evidence of discreditable conduct by accused
5. › Propensity reasoning
6. › Whether trial judge obliged to direct jury that evidence of accused's work as prostitute and use of illicit drugs could not be used to reason that accused was type of person likely to commit offence charged
7. › Whether failure to give such direction occasioned miscarriage of justice
1. Criminal Law
2. › Trial
3. › Summing up to jury
4. › Condemnatory and intemperate language by trial judge
5. › Whether judge's repeated references to accused as 'drug-addled prostitute' created perceptible risk of impermissible propensity reasoning
1. Criminal Law
2. › Trial
3. › Jury
4. › Juror absent during trial without having been discharged
5. › Whether trial judge had power to continue trial while member of jury absent
6. › Whether departure from trial according to law
7. › Criminal Procedure Act 2004 (WA), ss 111, 115
1. Criminal Law
2. › Appeal
3. › Miscarriage of justice
4. › Proviso
5. › Whether proviso could be applied where misdirection created risk of impermissible propensity reasoning
6. › Criminal Appeals Act (WA), s 30(3)(c)

Quick Take

Evidence of drug use and prostitution does not inherently require a propensity warning in trials for offences of violence, but a trial judge's repeated condemnatory references to such evidence, combined with invitations to the jury to assess its relevance without explaining the limited permissible use, can create a perceptible risk of impermissible propensity reasoning that necessitates a warning. A trial judge has no power to continue a trial while a juror is absent without first discharging that juror; the only options are to adjourn or to discharge the juror under s 115 of the Criminal Procedure Act 2004 (WA).