Leahy v WA

[2021] WASCA 66

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Extension of time
4. › Grossly out of time
5. › Whether miscarriage of justice established
6. › Criminal Appeals Act 2004 (WA), s 30(3)
1. Criminal Law
2. › Appeal against conviction
3. › Application to adduce fresh or new evidence
4. › Distinction between fresh and new evidence
5. › Whether evidence capable of affecting outcome
6. › Criminal Appeals Act 2004 (WA), s 40(1)(e)
1. Criminal Law
2. › Drug offences
3. › Possession with intent to sell or supply
4. › Statutory presumption of intent
5. › Whether appellant discharged onus of proving absence of intent
6. › Misuse of Drugs Act 1981 (WA), ss 6(1)(a), 11
1. Criminal Law
2. › Drug offences
3. › Cultivation with intent to sell or supply
4. › Statutory presumption of intent
5. › Misuse of Drugs Act 1981 (WA), ss 7(1)(a), 11

Quick Take

The case applies settled principles regarding the distinction between fresh and new evidence on appeal, confirming that material available at trial but not adduced due to a considered forensic decision by experienced counsel is not fresh evidence. Observations by a police officer during a search about the state of seized material are inadmissible hearsay and do not constitute evidence capable of affecting the outcome on appeal.