MLS v The State of Western Australia

Case [2018] WASCA 56


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MLS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 56

CORAM:   BUSS P

MAZZA JA

PRITCHARD J

HEARD:   5 SEPTEMBER 2017

DELIVERED          :   27 APRIL 2018

FILE NO/S:   CACR 195 of 2016

BETWEEN:   MLS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SWEENEY DCJ

File Number            :   IND 985 of 2015


Catchwords:

Criminal law - Appeal against conviction - Appellant convicted at a retrial of three counts of child sex offending - Pretext telephone call made by the complainant to the appellant - Whether the appellant made implied admissions against interest in the pretext call - Whether the prosecutor's conduct at the retrial occasioned a miscarriage of justice - Whether the trial judge gave the jury appropriate directions correcting an erroneous submission by the prosecutor

Legislation:

Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 329(2), s 329(4)

Result:

Leave to appeal granted on grounds 2 and 3
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : Mr P D Yovich SC
Respondent : Mr J A Scholz & Ms G N Beggs

Solicitors:

Appellant : Perrella Legal
Respondent : Director of Public Prosecutions (WA)

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293

Goedecke v The State of Western Australia [2013] WASCA 25

JJS v The State of Western Australia [2014] WASCA 136

KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417

King v The Queen [2012] HCA 24; (2012) 245 CLR 588

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

R v Birks (1990) 19 NSWLR 677

R v Soma [2003] HCA 13; (2003) 212 CLR 299

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319

Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115

The State of Western Australia v McBride [2015] WASC 275

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581

JUDGMENT OF THE COURT:

This is an appeal against conviction. 

The appellant was charged on indictment in the District Court with six sexual…

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MLS v The State of Western Australia [2018] WASCA 56
Case
[2018] WASCA 56
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CaseChat Overview and Summary

The appellant was convicted by a jury of three counts of child sex offending following a retrial. The jury acquitted the appellant of a further count of child sex offending. The appellant appealed against the convictions, arguing that the trial judge failed to give the jury appropriate directions correcting an erroneous submission by the prosecutor, that the prosecutor's conduct at the retrial occasioned a miscarriage of justice, and that the appellant made no implied admissions against interest during a pretext telephone call made by the complainant to the appellant. The state opposed the appeal. The Court of Appeal found that the trial judge did not err in failing to give the jury directions correcting an erroneous submission by the prosecutor. The Court found that the prosecutor's conduct at the retrial did not occasion a miscarriage of justice, and that the appellant made implied admissions against interest during the pretext telephone call. The appeal was dismissed.

The appeal required the Court to consider whether the trial judge gave the jury appropriate directions correcting an erroneous submission by the prosecutor, whether the prosecutor's conduct at the retrial occasioned a miscarriage of justice, and whether the appellant made implied admissions against interest in the pretext telephone call made by the complainant to the appellant. The Court held that the trial judge did not err in failing to give the jury directions correcting an erroneous submission by the prosecutor, as the submission was not erroneous. The Court found that the prosecutor's conduct at the retrial did not occasion a miscarriage of justice, as the appellant had not established that the conduct affected the outcome of the trial. The Court found that the appellant made implied admissions against interest during the pretext telephone call, as the appellant's statements during the call were inconsistent with his defence. The appeal was dismissed.

Orders

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Background

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