McCarrol v The Queen

Case [2004] WASCA 131


McCARROL -v- THE QUEEN [2004] WASCA 131



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASCA 131
COURT OF CRIMINAL APPEAL21/06/2004
Case No:CCA:144/200312 MAY 2004
Coram:MALCOLM CJ
MURRAY J
MCLURE J
12/05/04
13Judgment Part:1 of 1
Result: Leave granted, Appeal allowed, Convictions quashed, Remanded to District Court for new trial
B
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Parties:WAYNE RAMON McCARROL
THE QUEEN

Catchwords:

Criminal law and procedure
Sexual offences
Admission into evidence of accused's possession of child pornography
Possession years after commission of alleged offences
Evidence inadmissible having regard to circumstances of case
Turns on own facts

Legislation:

Nil

Case References:

Edwards v The Queen (1993) 178 CLR 193
Hill v The Queen [2003] WASCA 177
Mule v The Queen [2004] WASCA 7
Narkle v The Queen (2001) 23 WAR 468
Palmer v The Queen (1998) 193 CLR 1
R v Aziz [1996] AC 41
R v Beck [1990] 1 Qd R 30
R v Soma (2003) 212 CLR 299

B v The Queen (1992) 175 CLR 599
BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
Harriman v The Queen (1989) 167 CLR 590
Hoch v The Queen (1988) 165 CLR 292
R v KRM (2001) 118 A Crim R 262
M v The Queen (1994) 181 CLR 487
Noor Mohamed v The Queen [1949] AC 182
R v Anderson, unreported; SCt of WA; Library No 940378; 10 June 1994
R v Sampson [1989] 2 NZLR 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : McCARROL -v- THE QUEEN [2004] WASCA 131 CORAM : MALCOLM CJ
    MURRAY J
    MCLURE J
HEARD : 12 MAY 2004 DELIVERED : 12 MAY 2004 PUBLISHED : 21 JUNE 2004 FILE NO/S : CCA 144 of 2003 BETWEEN : WAYNE RAMON McCARROL
    Appellant

    AND

    THE QUEEN
    Respondent


ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : KENNEDY DCJ

File Number : IND 675 of 2002


(Page 2)

Catchwords:

Criminal law and procedure - Sexual offences - Admission into evidence of accused's possession of child pornography - Possession years after commission of alleged offences - Evidence inadmissible having regard to circumstances of case - Turns on own facts




Legislation:

Nil




Result:

Leave granted


Appeal allowed
Convictions quashed
Remanded to District Court for new trial


Category: B


Representation:


Counsel:


    Appellant : Mr D P A Moen
    Respondent : Mr R E Cock QC


Solicitors:

    Appellant : Ian Hope
    Respondent : State Director of Public Prosecutions


Case(s) referred to in judgment(s):

Edwards v The Queen (1993) 178 CLR 193
Hill v The Queen [2003] WASCA 177
Mule v The Queen [2004] WASCA 7
Narkle v The Queen (2001) 23 WAR 468
Palmer v The Queen (1998) 193 CLR 1
R v Aziz [1996] AC 41
R v Beck [1990] 1 Qd R 30
R v Soma (2003) 212 CLR 299

(Page 3)
Case(s) also cited:

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McCarrol v The Queen [2004] WASCA 131
Case
[2004] WASCA 131
Decision Date

CaseChat Overview and Summary

The appellant, McCarrol, was convicted of multiple sexual offences against a child and the case was heard by the High Court of Australia. The crux of the appeal was the admissibility of evidence concerning the appellant's possession of child pornography many years after the alleged offences. The prosecution sought to use this evidence to demonstrate propensity, but the trial judge excluded it on the basis it was unfairly prejudicial and had minimal probative value. The central legal issue before the court was whether the trial judge had erred in excluding this evidence, particularly in light of the appellant's possession of the material years after the offences were committed.

The court considered the criteria for admissibility of propensity evidence under the common law, focusing on the relevance and probative value of the evidence against its prejudicial effect. The High Court held that the trial judge had applied the correct legal principles, but had erred in his assessment of the prejudicial effect of the evidence. The court noted that the appellant's possession of the child pornography years after the alleged offences did not significantly enhance the probative value of the evidence, and the potential for unfair prejudice was high. The court emphasised that the circumstances of each case must be carefully considered when assessing the admissibility of propensity evidence.

Ultimately, the court found that the trial judge's exclusion of the evidence was appropriate given the circumstances of this case. The High Court granted leave to appeal, allowed the appeal, quashed the convictions, and remanded the case to the District Court for a new trial. The decision underscores the importance of a careful and nuanced approach when determining the admissibility of propensity evidence in sexual offence cases.

Orders

Orders of the court

Leave granted, Appeal allowed, Convictions quashed, Remanded to District Court for new trial

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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