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
The appellant was charged on indictment in the District Court with six sexual…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
MLS v The State of Western Australia [2018] WASCA 56
Case
[2018] WASCA 56
Decision Date
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.