Asciak v The Queen

The applicant, Mr Asciak, sought special leave to appeal to the High Court of Australia against a decision of the Court of Appeal of Western Australia. The Court of Appeal had refused to allow Mr Asciak's appeal against his conviction for conspiracy to import heroin into Australia. The application was made out of time.

The legal issues before the High Court concerned the duties of a trial judge when dealing with a serious, stale charge where the sole evidence against the accused came from one witness, and the accused denied the allegations under oath. Specifically, the applicant raised questions about whether a trial judge has a duty to assess the credibility and potential bias of such a witness, to present this assessment to the jury, to determine if corroboration exists, and to warn the jury of the dangers of convicting on such evidence. Further questions related to whether this duty arises independently of whether the issue is raised by counsel, and whether a failure to adhere to these duties creates a perceptible risk of a miscarriage of justice.

The applicant argued that these issues were of general application throughout Australia, that there were no direct High Court authorities on point, and that state courts were divided on the matter, leading to confusion, particularly in relation to Commonwealth legislation. The applicant also contended that guidance was required for trial judges, prosecuting authorities, and investigative agencies, especially given the increasing use of stale charges where corroboration is difficult to obtain. The applicant sought an order quashing the conviction if the questions were answered favourably.