Rhu v WA [No 2]

[2023] WASCA 49

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Miscarriage of justice
5. › Conduct of defence counsel
6. › Forensic decisions
7. › Whether failure to adduce evidence or cross-examine on particular issue had rational explanation
8. › Objective test
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Miscarriage of justice
5. › Conduct of defence counsel
6. › Failure to call witness
7. › Whether decision not to call witness rationally explicable
1. Evidence
2. › Collateral evidence rule
3. › Exceptions
4. › Bias, interest and corruption
5. › Whether evidence that third party (non-witness) was coached admissible to impeach credibility of witness
6. › Whether coaching of one child admissible to prove coaching of another child complainant
1. Evidence
2. › Pre-recorded evidence of children
3. › Admissibility at trial
4. › Whether child remains 'affected child' after charge discontinued
5. › Evidence Act 1906 (WA), ss 106A, 106I, 106T

Quick Take

Evidence that a third party (who is not a complainant or prosecution witness) was coached to make false allegations does not fall within the bias, interest or corruption exceptions to the collateral evidence rule and cannot be adduced to impeach the credibility of a witness who denies coaching. Pre-recorded evidence of a child under s 106T(1) of the Evidence Act 1906 (WA) is only admissible in the proceeding in respect of which the child is an 'affected child'; once a charge is discontinued, the child ceases to be an affected child and the pre-recording is inadmissible. The US approach in Haggett permitting evidence of attempted subornation of non-witnesses has been rejected as improper speculation.