Stack v The State of Western Australia

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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…

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Details
Case
[2004] WASCA 300
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

STEYTLER J

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Ratio Decidendi

Legal Principle Established

Established by: STEYTLER J

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