Cdo v WA

[2022] WASCA 58

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Sexual offending against a child
4. › Uncharged sexual act
5. › Admissibility and use of evidence of uncharged act
6. › Direction to jury
7. › Whether real and not remote possibility jury might adopt propensity reasoning
8. › Criminal Code (WA), s 320(4)
1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Evidence of uncharged acts
5. › Identification of permissible use of evidence
6. › Whether direction adequately warned against propensity reasoning
1. Criminal Law
2. › Appeal against conviction
3. › Sexual offending against children
4. › Family violence direction
5. › Statutory interpretation
6. › Whether family violence 'an issue' for purposes of s 39D where charged conduct constitutes the family violence
7. › Evidence Act 1906 (WA), ss 37, 38, 39, 39A, 39D, 39F
1. Evidence
2. › Criminal proceedings
3. › Family violence
4. › Directions to jury
5. › Whether direction may be given where only evidence of family violence is the charged conduct
6. › Evidence Act 1906 (WA), s 39D

Quick Take

Section 39D of the Evidence Act 1906 (WA) permits a family violence direction to be requested and given in criminal proceedings where the only evidence of family violence is the conduct alleged to constitute the charged offences; the entitlement is not conditioned upon evidence being admitted under s 39 or s 39A. Where evidence of an uncharged act is admitted for the limited purpose of assessing a complainant's credibility and reliability, a direction that identifies this as the only permissible use and expressly warns against propensity reasoning will ordinarily be adequate, provided the direction read as a whole does not create a real possibility of impermissible reasoning.