Section 14(3) of the Criminal Appeals Act 2004 (WA) does not empower the Supreme Court on appeal to uphold a conviction on a basis materially different from the prosecution's case at trial. A notice of contention that recharacterises the basis of criminal liability from primary offending to being knowingly concerned in another's offence constitutes an impermissible departure from the case the accused was called upon to meet. Where the prosecution case at trial alleged the accused directly made false representations but the notice of contention alleged the accused adopted and endorsed representations made by another entity, the alternative cases are factually inconsistent and require different elements to be proved.
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