DSS v The State of Western Australia

In this case, the appellant, DSS, appealed against his convictions of sexually penetrating a child who he knew to be his lineal relative and indecently dealing with a child who he knew to be his lineal relative. The appellant argued that a miscarriage of justice arose from the absence of new evidence at trial and the incompetence of defence counsel. The court considered the appellant's two grounds of appeal and found no merit in either.

On ground 1, the court found that the appellant's evidence was new evidence rather than fresh evidence, and it did not establish that the appellant should not have been convicted of the offences. The court concluded that there was no miscarriage of justice arising from the failure to call the new evidence at trial.

On ground 2, the court found that there were sound forensic reasons for defence counsel's decisions not to call certain witnesses, not to allege that the complainant's older brother committed the charged offences, and not to call the appellant's mother as a witness. The court held that the appellant's criticisms of defence counsel's conduct of the trial were not established, and there was no miscarriage of justice arising from the conduct of defence counsel.

The court dismissed the appellant's application for an extension of time in which to appeal, refused leave to appeal on both grounds of appeal, and dismissed the appeal. The court also made orders admitting additional evidence in the appeal and dismissing applications to adduce additional evidence in the appeal.