TSP v WA

[2021] WASCA 224

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Misdirection
4. › Evidence of uncharged acts
5. › Failure to direct jury as to limited purpose of context and relationship evidence
6. › Whether real possibility jury engaged in propensity reasoning
7. › Whether miscarriage of justice occasioned
1. Criminal Law
2. › Appeal against conviction
3. › Unreasonable verdict
4. › Child sexual offence
5. › Complainant's evidence uncorroborated
6. › Whether open to properly directed jury to be satisfied beyond reasonable doubt
7. › Criminal Code (WA), s 329(2), s 329(3), s 329(4)
1. Evidence
2. › Criminal proceedings
3. › Uncharged acts
4. › Context and relationship evidence
5. › Distinction between context evidence and propensity evidence
6. › Duty of trial judge to direct jury as to permissible and impermissible uses

Quick Take

Where evidence of uncharged acts is admitted as context and relationship evidence in a criminal trial, the trial judge must direct the jury as to the specific and limited relevance of that evidence and must instruct the jury that it cannot be used as propensity evidence. Failure to give such a direction constitutes a misdirection that may occasion a miscarriage of justice, even where neither party raises the issue. The non-specific nature of the uncharged acts evidence and temporal distance from the charged offences do not avoid the risk of impermissible propensity reasoning.