AK v The State of Western Australia [2008] HCA 8

HIGH COURT OF AUSTRALIA

GLEESON CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

AK APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA RESPONDENT

AK v The State of Western Australia [2008] HCA 8 26 March 2008 P27/2007

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 17 November 2006 and in its place order that:

(a) the appeal to that Court be allowed,

(b) the appellant's convictions be quashed, and

(c) there be a new trial.

On appeal from the Supreme Court of Western Australia

Representation

R W Richardson for the appellant (instructed by Aboriginal Legal Service of Western Australia (Inc))

B Fiannaca SC with D A Lima for the respondent (instructed by Director of Public Prosecutions for Western Australia)

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

CATCHWORDS

AK v The State of Western Australia

Criminal law – Appeals – Application of the proviso – Statutory requirement that reasons for judgment include the principles of law applied and the findings of fact relied upon – Failure to give reasons meeting statutory requirements in respect of central issue at trial – Failure to comply with statutory requirements an error of law – Appeal against conviction to be allowed unless Court of Appeal satisfied that no substantial miscarriage of justice had occurred – Whether no substantial miscarriage of justice had occurred.

Criminal law – Evidence – Identification – Complainant indecently dealt with by one of two males with whom she and her sister were sharing a bed – Complainant unable to identify the perpetrator by visual or aural means – Complainant adamant that the appellant was responsible – Whether identification warning needed – Whether finding of guilt unreasonable or not supported by evidence.