Smith v WA

[2021] WASCA 17

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Unreasonable verdict
4. › Whether verdict unreasonable or not supported having regard to the evidence
5. › Identification evidence
6. › Discrepancies and inconsistencies in witness evidence
7. › Jury's advantage in assessing credibility
1. Criminal Law
2. › Appeal against conviction
3. › Miscarriage of justice
4. › Prosecutor's cross-examination and closing address
5. › Whether impermissible to discredit defence witness on basis of s 11 certificate
6. › Evidence Act 1906 (WA), s 11
1. Evidence
2. › Privilege against self-incrimination
3. › Statutory modification
4. › Certificate under s 11 of Evidence Act 1906 (WA)
5. › Proper construction and application
6. › Whether prosecutor may cross-examine witness as to motive for claiming privilege
7. › Whether granting of certificate relevant to credibility of witness

Quick Take

Where a defence witness claims privilege against self-incrimination under s 11 of the Evidence Act 1906 (WA) on the basis that the witness (not the accused) committed the offence, the prosecutor may cross-examine the witness and submit in closing that the witness's assertion is fraudulent or the product of collusion, provided there is a proper basis in the evidence. Such cross-examination does not impermissibly attack the witness's credit on the basis of claiming privilege or receiving a certificate. The question whether any inference may be drawn from a witness's refusal to answer on the ground of self-incrimination remains unresolved.