Austic v WA

(2020) 57 WAR 39; [2020] WASCA 75

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Royal Prerogative of Mercy
4. › Referral by Attorney General to Court of Appeal
5. › Whole case to be heard and determined as if appeal against conviction
6. › Correct approach to additional evidence in context of trial evidence
7. › Sentencing Act 1995 (WA), s 140(1)(a)
1. Criminal Law
2. › Appeal
3. › Miscarriage of justice
4. › Additional evidence on appeal
5. › Whether new evidence established miscarriage of justice
6. › Evidence that key prosecution exhibits may have been planted
7. › Criminal Appeals Act 2004 (WA), s 30(3)(c)
1. Criminal Law
2. › Appeal
3. › Unreasonable verdict
4. › Whether verdict unreasonable having regard to whole of evidence including additional evidence
5. › Circumstantial case
6. › Criminal Appeals Act 2004 (WA), s 30(3)(a)
1. Criminal Law
2. › Appeal
3. › New trial or acquittal
4. › Whether judgment of acquittal should be entered or new trial ordered
5. › Strongly arguable case remaining despite tainted evidence
6. › Criminal Appeals Act 2004 (WA), s 30(5)

Quick Take

On a referral of the whole case by the Attorney General under s 140(1)(a) of the Sentencing Act 1995 (WA), the court must conduct a full review of all admissible relevant evidence — whether new, fresh, or previously adduced — applying legal principles appropriate to an appeal. Where additional evidence establishes that key prosecution exhibits may have been planted, this constitutes a miscarriage of justice even if the evidence is 'new' rather than 'fresh'. However, where the State retains a strongly arguable circumstantial case even excluding the tainted evidence, the appropriate remedy is a new trial rather than acquittal.