MLS v WA

[2018] WASCA 56

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Pretext telephone call
5. › Whether statements capable of constituting implied admissions against interest
6. › Criminal Appeals Act 2004 (WA), s 30
1. Criminal Law
2. › Appeal against conviction
3. › Prosecutor's duty of fairness
4. › Closing address
5. › Whether prosecutor's submissions occasioned miscarriage of justice
6. › Whether false line of reasoning invited
7. › Whether misstatement of evidence
1. Criminal Law
2. › Appeal against conviction
3. › Trial judge's duty to direct jury
4. › Curative directions
5. › Whether failure to give directions created perceptible risk of miscarriage of justice
1. Evidence
2. › Admissions
3. › Implied admissions
4. › Pretext telephone call
5. › Failure to deny allegations
6. › Whether ambiguous or equivocal statements capable of constituting admissions

Quick Take

Equivocal responses to allegations of sexual misconduct in a pretext telephone call — such as 'you might have thought that', 'you might have memories of things like that', and 'I don't remember that' — are capable of constituting implied admissions against interest where, as a matter of common human experience, a person confronted with false allegations would be expected to issue an immediate and unconditional denial. Defence counsel's deliberate forensic decision to have the pretext call tendered will not found a miscarriage of justice where the decision is objectively capable of explanation as a rational forensic strategy. A prosecutor's submission that an accused lied by omission to police must have an adequate evidentiary basis — the court will examine whether the police actually requested a comprehensive account.