Boag v The State of Western Australia

[2023] WASCA 74

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BOAG -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 74

CORAM:   BUSS P

VAUGHAN JA

MORRISON AJA

HEARD:   5 MAY 2023

DELIVERED          :   5 MAY 2023

FILE NO/S:   CACR 61 of 2021

BETWEEN:   ROSS JAMES BOAG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   CORBOY J

File Number            :   INS 47 of 2017

Catchwords:

Criminal law – Appeal against conviction - Conviction after trial – One count of unlawful killing – Application to withdraw notice of discontinuance of appeal against conviction – Whether court should exercise discretion under s 40(1)(l) of the Criminal Appeals Act 2004 (WA) – Where as a result of a High Court judgment grounds of appeal have become available that were not previously reasonably arguable

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(l)

Result:

Leave to withdraw discontinuance notice granted
Certificate of conclusion of criminal appeal set aside
Extension of time to file and serve appellant's case granted

Category:    B

Representation:

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	Mr L M Fox SC

Solicitors:

Appellant	:	Anthony Karstaedt
Respondent	:	Director of Public Prosecutions (WA)

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

KAN v The State of Western Australia [2021] WASCA 182

O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315

REASONS OF THE COURT:

(This judgment was delivered extemporaneously on 5 May 2023 and has been edited from the transcript.)

1. On 26 February 2021, the appellant, Leroy Smith and Lucas Yarran were convicted, after a retrial before Corboy J sitting alone without a jury, of manslaughter.  On 28 April 2021, the appellant was sentenced to 8 years' imprisonment, backdated to 9 August 2019, with eligibility for parole.

2. On 25 May 2021, the appellant, by his lawyer, filed an appeal notice.  In the notice the appellant applied for leave to appeal against conviction.

3. On 16 August 2021, the appellant, by his lawyer, filed a discontinuance notice in respect of the appeal.

4. On 18 August 2021, the Acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal in respect of the appellant's appeal against conviction.

5. On 2 September 2022, the appellant filed an application in an appeal for:

   (a)leave to withdraw the discontinuance notice;

   (b)an order setting aside the certificate of conclusion of criminal appeal; and

   (c)an order extending the time to file the appellant's case.

6. The application is supported by an affidavit of the appellant's counsel sworn 2 September 2022, a draft appellant's case and written submissions.

7. This court is empowered to grant leave to withdraw a discontinuance notice and to make an order setting aside a certificate of conclusion of criminal appeal:

   (a)on the ground that the discontinuance notice was a nullity; or

   (b)alternatively, in the exercise of the court's discretion under s 40(1)(l) of the Criminal Appeals Act 2004 (WA).

   See KAN v The State of Western Australia.[1]

   [1] KAN v The State of Western Australia [2021] WASCA 182 [31] ‑ [37].

8. In the present case, the appellant does not allege that the discontinuance notice was a nullity. Rather, the appellant submits that the court should, in the exercise of its discretion under s 40(1)(l) of the Criminal Appeals Act, grant the relief sought in the application filed 2 September 2022.

9. On 8 August 2022, the High Court delivered judgment in O'Dea v The State of Western Australia.[2]

   [2] O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315.

10. In the present case, counsel for the appellant contends that, as a result of the decision and reasoning of the majority of the High Court in O'Dea, one or more grounds of appeal have become available that were not previously reasonably arguable.  In his affidavit sworn 2 September 2022, counsel for the appellant explains that the discontinuance notice was filed because, on the state of the law before the publication of the decision and reasoning of the majority in O'Dea, it was considered that the appeal against conviction did not have reasonable prospects of success.

11. Counsel for the State does not oppose the appellant's application filed 2 September 2022.

12. Although there was a significant interval between the filing of the discontinuance notice on 16 August 2021 and the filing of the application on 2 September 2022, the delay has been explained adequately.  We accept counsel for the appellant's contention that, as a result of the decision and reasoning of the majority of the High Court in O'Dea, one or more grounds of appeal have become available that were not previously reasonably arguable.  We consider that the proposed grounds of appeal are at least reasonably arguable.  In the circumstances, a miscarriage of justice would occur if the appellant is not permitted to withdraw the discontinuance notice and an order setting aside the certificate of conclusion of criminal appeal is not made.

13. We are satisfied that, despite the strong public interest in the finality of litigation, it is in the interests of justice, in the present case, to grant the appellant leave to withdraw the discontinuance notice filed 16 August 2021, to order that the certificate of conclusion of criminal appeal dated 18 August 2021 be set aside and to order that the time for the filing of the appellant's case be extended.

Orders

On the appellant's application in an appeal filed 2 September 2022, it is ordered:

1. The appellant has leave to withdraw the discontinuance notice filed 16 August 2021.

2. The certificate of conclusion of criminal appeal dated 18 August 2021 is set aside.

3. By 4.00 pm on 15 May 2023 the appellant must file and serve the appellant's case.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

YK

Associate to the Honourable President Buss

5 MAY 2023