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Stack v The State of Western Australia

Stack v The State of Western Australia

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Case Copied 20 December 2004 73 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STACK -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 300

CORAM: MURRAY J
STEYTLER J
TEMPLEMAN J

HEARD: 5 AUGUST 2004

DELIVERED : 20 DECEMBER 2004

FILE NO/S: CCA 34 of 2004

BETWEEN: VERNON NEVILLE STACK
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ROBERTS-SMITH J
Citation  :THE QUEEN -v- STACK
File No  :INS 121 of 2001

Catchwords:

Criminal law and procedure - Aboriginal witnesses - Ruling by trial judge that counsel crossexamining was not to ask leading questions of Aboriginal witness - Whether error of law - Whether error in exercise of discretion - Directions as to assessment of credibility of Aboriginal witnesses - Whether miscarriage of justice

Legislation:

Criminal Code, s 638

Evidence Act 1906 (WA)
Evidence Act 1995 (NSW)

Juries Act 1957 (WA)

Result:

Extension of time granted
Leave to appeal granted
Appeal allowed
Convictions quashed
Retrial ordered

Category: A

Representation:

Counsel:

Applicant: Mr R W Richardson
Respondent: Mr B Fiannaca & Mr L M Fox

Solicitors:

Applicant: Legal Aid Western Australia
Respondent: State Director of Public Prosecutions

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

Alcoa of Australia Ltd v McKenna [2003] VSCA 182
Allen v Allen [1894] P 248
Clarke v Saffery (1824) Ry & Mood 126; 171 ER 966
Crofts v The Queen (1996) 186 CLR 427
Domican v The Queen (1992) 173 CLR 555
Dumoo v Garner (1998) 7 NTLR 129
Gavin v The Queen (1992) 6 WAR 195
Glennon v The Queen (1994) 179 CLR 1
Gordon v Carroll (1975) 6 ALR 579
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Hall v Police [1999] SASC 197
House v The King (1936) 55 CLR 499
Kirby v United States (1899) 174 US 47
Lee v The Queen (1998) 195 CLR 594
McLure v Mitchell (1974) 24 FLR 115
Mechanical & General Inventions Co Ltd & Lehwess v Austin & Austin Motor Co Ltd [1935] AC 346
Mooney v James [1949] VLR 22
Osolin v The Queen (1993) 86 CCC (3d) 481
Parkin v Moon (1836) 7 Car & P 408; 173 ER 181
Price v Manning (1889) 42 Ch D 372
R v Anunga (1976) 11 ALR 412
R v Astill (1992) 63 A Crim R 148
R v Chan (1989) 38 A Crim R 337
R v Chubb (1863) 2 SCR (NSW) 282
R v Condren (1987) 28 A Crim R 261
R v D (2003) 139 A Crim R 509
R v Hunter [1956] VLR 31
R v Lawless [1974] VR 398
R v Murphy (1837) 8 Car & P 297; 173 ER 502
R v O'Brien (1878) 1 SCR (NSW) (NS) 146
R v Thynne [1977] VR 98
R v Wallick (1990) 69 Man R (2d) 310
Rawcliffe v The Queen (2000) 22 WAR 490
Wakeley v The Queen (1990) 64 ALJR 321
Whitehorn…

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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Details

Case: [2004] WASCA 300
Decision Date: 20 DECEMBER 2004

CaseChat Overview and Summary

In the matter of Stack v The State of Western Australia, the appellant, Stack, sought to appeal a conviction for a serious criminal offence. The case hinged on the testimony of several Aboriginal witnesses, whose credibility was a central issue in the trial. The trial judge had ruled that counsel was not to ask leading questions of the Aboriginal witnesses during cross-examination, and also directed the jury on how to assess the credibility of such witnesses. Stack argued that these rulings constituted an error of law or an error in the exercise of the trial judge's discretion, and that they resulted in a miscarriage of justice.

The primary legal issues before the court were whether the trial judge's ruling prohibiting leading questions during cross-examination of Aboriginal witnesses was an error of law or an error in the exercise of discretion, and whether the judge's directions to the jury on assessing the credibility of Aboriginal witnesses constituted a miscarriage of justice. The court considered whether the trial judge's approach was consistent with established legal principles and whether it had an adverse effect on the fairness of the trial. The appellant's counsel argued that the trial judge's direction prevented the jury from making an informed assessment of the witnesses' credibility.

The court found that the trial judge's ruling regarding leading questions did not constitute an error of law, as it was consistent with legal principles aimed at protecting vulnerable witnesses. The court also held that the trial judge's direction to the jury on assessing the credibility of Aboriginal witnesses was not an error that resulted in a miscarriage of justice. The court reasoned that the judge's direction was based on the need to ensure that the jury properly considered the cultural context and potential biases in assessing the credibility of Aboriginal witnesses. The court concluded that the trial judge's approach did not undermine the fairness of the trial and that the appellant had not demonstrated that the outcome would likely have been different had the rulings not been made.

Orders