OKS v Western Australia

[2019] HCA 10

HIGH COURT OF AUSTRALIA

BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ

OKS  APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA  RESPONDENT

OKS v Western Australia

[2019] HCA 10

20 March 2019

P62/2018

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 11 April 2018 and in lieu thereof substitute the following orders:

(a)appeal allowed;

(b)the appellant's conviction be quashed; and

(c)there be a new trial.

On appeal from the Supreme Court of Western Australia

Representation

S A Vandongen SC with S Nigam for the appellant (instructed by Nigams Legal)

A L Forrester SC with K C Cook for the respondent (instructed by Director of Public Prosecutions (WA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

OKS v Western Australia

Criminal practice – Appeal against conviction – Application of proviso that no substantial miscarriage of justice actually occurred – Criminal Appeals Act 2004 (WA), s 30(4) – Where jury found appellant guilty of indecently dealing with child under 13 years of age – Where credibility and reliability of complainant's evidence central issue at trial – Where complainant admitted and was alleged to having lied – Where trial judge directed jury not to reason that complainant's lies meant that all her evidence dishonest and could not be relied upon – Where Court of Appeal found direction by trial judge was wrong decision on question of law – Where Court of Appeal found no substantial miscarriage of justice occurred – Whether error in application of proviso.

Words and phrases – "misdirection", "natural limitations of proceeding on the record", "no effect upon the jury's verdict", "proviso", "substantial miscarriage of justice", "sufficiency of evidence to prove guilt", "very significant weight", "weight to the verdict of guilty", "wrong decision on a question of law".

Criminal Appeals Act 2004 (WA), s 30(4).

1. BELL, KEANE, NETTLE AND GORDON JJ.   The appellant was convicted before the Perth District Court (Judge Stevenson and a jury) of indecently dealing with the complainant, S, a child under the age of 13 years[1].  The trial took place nearly 20 years after the alleged offence.  The central issue at the trial was the credibility and reliability of S's evidence.  In the course of summing-up the case to the jury, the trial judge directed:

   "[D]o not follow a process of reasoning to the effect that just because [S] is shown to have told a lie or she has admitted she told a lie, that all of her evidence is in fact dishonest and cannot be relied upon" ("the impugned direction").

   [1]Criminal Code (WA), s 320(4).

2. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Western Australia (Buss P, Beech JA and Pritchard J) on a ground which contended that the impugned direction was a wrong decision on a question of law[2].  The Court of Appeal was…