Jmy v WA

[2022] WASCA 60

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Rebuttal evidence
4. › Prosecution splitting case
5. › Alibi evidence
6. › Whether prosecution entitled to adduce rebuttal evidence under s 97 of Criminal Procedure Act 2004 (WA)
7. › Whether adjournment properly granted under s 97(2)
8. › Whether s 97(3) engaged where adjournment not sustained by s 97(2)
9. › Criminal Procedure Act 2004 (WA), ss 96, 97
1. Criminal Law
2. › Evidence
3. › Alibi evidence
4. › Disclosure requirements
5. › Scope of obligation to disclose details of alibi evidence
6. › Whether obligation extends to evidence that may emerge in cross-examination
7. › Criminal Procedure Act 2004 (WA), s 96(3)(a)
1. Criminal Law
2. › Appeal
3. › Proviso
4. › Miscarriage of justice
5. › Common law discretion to permit rebuttal evidence
6. › Whether only reasonable exercise of discretion would inevitably have been to grant leave
7. › Whether same evidence would have been available absent error

Quick Take

The disclosure obligation under s 96(3)(a) of the Criminal Procedure Act 2004 (WA) for alibi evidence is limited to the evidence-in-chief the accused intends to give, and does not extend to evidence that may emerge in cross-examination. Section 97(2) does not authorise an adjournment to investigate matters disclosed in cross-examination rather than matters disclosed in accordance with the s 96 disclosure requirement. Where s 97(2) does not sustain an adjournment, s 97(3) is not engaged and provides no basis for adducing rebuttal evidence. When the proviso is invoked on the basis that the common law discretion to permit rebuttal evidence would inevitably have been exercised in the prosecution's favour, the court must be satisfied that the only reasonable exercise of discretion would have been to grant leave, and that the same evidence would have been available absent the error.