Weglewski v WA

[2020] WASCA 28

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Identification evidence
4. › Identification of objects
5. › Distinction between positive identification evidence and description evidence
6. › Whether identification warning required
7. › Whether evidence gave rise to perceptible risk of miscarriage of justice
1. Criminal Law
2. › Evidence
3. › Identification evidence
4. › Circumstantial identification evidence
5. › Whether description evidence a significant part of proof of guilt
6. › Whether hidden danger in evidence not evident to jury
1. Criminal Law
2. › Appeals
3. › Extension of time to appeal
4. › Leave to appeal
5. › Whether ground of appeal has merit

Quick Take

Whether a judicial identification warning is required for description evidence concerning objects depends on two conditions: (1) the evidence gives rise to a hidden danger of which the court has special knowledge that may adversely affect reliability and may not be evident to the jury, and (2) the evidence is a significant part of the proof of guilt. Where witnesses describe objects used in offending but do not positively identify objects found in the accused's possession as those objects, and the prosecution case rests primarily on other evidence (ballistics, DNA, circumstantial evidence), no identification warning is required. Theos v The Queen does not establish that identification warnings must always be given when description evidence of objects forms part of a circumstantial case.