May v WA

[2018] WASCA 24

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Identification evidence
4. › Single photograph shown to victim at crime scene
5. › Whether miscarriage of justice by reason of admission without objection
6. › Whether evidence should have been excluded in trial judge's discretion
1. Criminal Law
2. › Appeal against conviction
3. › Identification evidence
4. › Domican warning
5. › Whether trial judge's identification direction adequate
6. › Whether jury warned of dangers of convicting on identification evidence
7. › Whether jury directed about suggestiveness of single photograph identification
1. Criminal Law
2. › Appeal against conviction
3. › Proviso
4. › Whether no substantial miscarriage of justice occurred
5. › Inadequate identification direction
6. › Whether evidence overwhelmingly established guilt
7. › Criminal Appeals Act 2004 (WA), s 30(4)
1. Criminal Law
2. › Appeal against conviction
3. › Unreasonable verdict
4. › Circumstantial evidence
5. › Whether verdict unsafe or unsatisfactory
6. › Whether open to jury to be satisfied beyond reasonable doubt
7. › Criminal Appeals Act 2004 (WA), s 30(3)(a)

Quick Take

A trial judge's failure to give a Domican warning regarding the suggestiveness of a single-photograph identification shown to a victim at the crime scene will not result in a successful appeal where the remaining evidence overwhelmingly establishes guilt. Where defence counsel raises 'concerns' about admissibility but does not formally object, the trial judge makes no wrong decision on a question of law, and the appellant must establish miscarriage of justice under the three-part LBC test.