JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WHITE -v- THE QUEEN [2006] WASCA 62
CORAM: WHEELER JA
MCLURE JA
PULLIN JA
HEARD: 4 NOVEMBER 2005
DELIVERED : 7 APRIL 2006
FILE NO/S: CCA 74 of 2003
BETWEEN: GARY ERNEST WHITE
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :SCOTT J
File No :INS 144 of 2002
Catchwords:
Appeal and new trial - Grounds of appeal - Failure to warn - Corroboration warning - Evidence Act s 50
Criminal law - Accomplice - Prison informer - Witness with purpose to serve - Corroboration warning - Evidence Act s 50
Criminal law - Fresh evidence - Recanting witness
Criminal law - Non-disclosure by prosecution
Criminal law - Expert witness - Expertise unchallenged
Legislation:
Criminal Appeals Act 2004 (WA), s 30
Director of Public Prosecutions Act 1991 (WA)
Evidence Act 1906 (WA), s 50
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr S A Shirrefs SC & Mr G W Massey
Respondent: Mr B Fiannaca & Mr T G Wilson
Solicitors:
Appellant: Gary Massey & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Asciak v The Queen [1990] WAR 120
Aydlett v The Queen, unreported; CCA SCt of WA; Library No 920346; 25 June 1992
B v The Queen (1992) 175 CLR 599
Bromley v The Queen (1986) 161 CLR 315
Carr v The Queen (1988) 165 CLR 314
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Chew v The Queen (1991) 4 WAR 21
Craig v The King (1933) 49 CLR 429
Davies v The King (1937) 57 CLR 170
De La Espriella‑Velasco v The Queen [2006] WASCA 31
Dyers v The Queen (2002) 210 CLR 285
Foo v The Queen (2001) 167 FLR 423
Gallagher v The Queen (1986) 160 CLR 392
Grey v The Queen (2001) 75 ALJR 1708
Hoy v The Queen [2002] WASCA 275
Jenkins v The Queen (2004) 79 ALJR 252
Kelleher v The Queen (1974) 131 CLR 534
Khan v The Queen [1971] WAR 44
Lawless v The Queen (1979) 142 CLR 659
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Mallard v The Queen (2005) 80 ALJR 160
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen (2004) 29 WAR 13
Mickelberg v The Queen, unreported, CCA SCt of WA; Library No 990056; 12 February 1999
Milne v The State of Western Australia [2005] WASCA 38
Mule v The Queen (2005) 79 ALJR 1573
Pileggi v The Queen [2001] WASCA 260
Pollitt v The Queen (1992) 174 CLR 558
R v Anderson (2000) 1 VR 1
R v Brown (Winston) [1994] 1 WLR 1599
R v Bryer (1994) 75 A Crim R 456
R v Clark (2001) 123 A Crim R 506
R v Easterday (2003) 143 A Crim R…
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- AGLC
- White v The Queen [2006] WASCA 62
- Case
- [2006] WASCA 62
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the trial judge was required to give a corroboration warning under s 50 of the Evidence Act. Specifically, the court needed to decide whether the trial judge had a mandatory obligation to warn the jury about the dangers of convicting on the uncorroborated evidence of a key witness. The court also had to consider whether the absence of such a warning constituted a miscarriage of justice. The appellant argued that the trial judge's failure to warn the jury was a fundamental error that warranted a new trial.
The High Court examined the statutory provisions and legislative intent behind s 50 of the Evidence Act. The court concluded that s 50 did not impose a mandatory requirement on judges to give corroboration warnings in all cases. Instead, it provided a discretion to the trial judge to determine whether a warning was necessary based on the specific circumstances of the case. The court emphasised that the legislature intended to prevent unwarranted adverse reflections on the credibility of certain categories of witnesses, such as alleged victims of sexual offences, by removing the automatic requirement for a corroboration warning. However, the court found that the trial judge did not abuse his discretion in failing to give a warning, as the evidence was sufficiently strong and the witness's credibility was not undermined by the lack of corroboration. Therefore, the appeal was dismissed, and the conviction was upheld.
The High Court's decision in White v The Queen clarified the scope of s 50 of the Evidence Act and reinforced the trial judge's discretion in determining the need for a corroboration warning. The court held that the failure to give such a warning did not necessarily constitute a miscarriage of justice if the evidence was compelling and the witness's credibility was not compromised. The conviction was affirmed, and the appeal was dismissed.
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
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Ratio Decidendi
Legal Principle Established
The predecessor to s 50 was s 36BE of the Evidence Act. It relevantly provided as follows:"(1)On the trial of a person for a sexual assault offence or an offence under chapter XXII of the Criminal Code –(a)the Judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict a person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and(b)the Judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances."Section 50 now reads: "50. Corroboration warnings not generally required(1)In this section "corroboration warning" in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.(2)On the trial of a person on indictment for an offence - (a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances." That was the provision which was considered by the High Court in Longman v The Queen (1989) 168 CLR 79. The majority reasons in that case were those of Brennan, Dawson and Toohey JJ. At 85 – 86, their Honours noted that the mischief at which that provision appeared to have been aimed was the adverse reflection which a warning cast indiscriminately on the evidence of all alleged victims of sexual offences, and the corresponding protection which the giving of a warning conferred on an accused in those cases. Their Honours said, "It is evident that the legislature regards the reflection as unwarranted and the protection as unjust." By extending the reach of the former 36BE, it seems to me that the legislature has indicated that it regards all of the warnings traditionally given in relation to those categories of witnesses who have been in the past considered to require a corroboration warning - including accomplices - as generally undermining the balance of a fair trial. It is worth noting, in that context, that the section does not merely confer a discretion not to warn in a particular case; rather, it forbids a warning unless particular circumstances justify it. Their Honours then asked whether s 36BE dispensed with any requirement to warn wherever the evidence of an alleged victim of a sexual offence was uncorroborated, or only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims as a class. They noted that to construe it in the former way would be to place alleged victims of sexual offences into a category of especially trustworthy witnesses whose evidence need never be the subject of a warning and that such a wide construction would sterilise the trial Judge's ability to secure a fair trial. Applying that observation to s 50, it is plain that the legislature has not elevated those witnesses who were previously considered untrustworthy into a class of especially trustworthy witnesses. However, they are not to be considered untrustworthy "as a class".