Collard v The State of Western Australia

The appellant, in this case, was convicted of multiple offences including 'felony murder' following a trial. The victim, who suffered from an undiagnosed cardiovascular condition, died during an incident in which the appellant unlawfully detained and terrorised him. The appellant appealed against his conviction and sentence, arguing that the trial judge should have allowed the jury to consider the possibility of accident as a cause of the victim's death and that the sentence was manifestly excessive. The Court of Appeal was required to determine whether the trial judge's failure to leave the possibility of accident to the jury was a miscarriage of justice, and whether the appellant's conviction on the count of 'felony murder' should result in the setting aside of his convictions on other counts. Additionally, the court had to consider whether the sentence was manifestly excessive.

The Court of Appeal held that the trial judge's failure to leave the possibility of accident to the jury did not occasion a miscarriage of justice, as the jury could have reasonably inferred from the evidence that the appellant intended or foresaw that the victim's death could be a possible outcome of his actions. However, the court found that the trial judge's failure to leave the possibility of accident to the jury on count 2 did require that the appellant's conviction on that count be set aside and a new trial ordered. The court also found that the appellant's convictions on counts 1 and 3 were not affected by the setting aside of the conviction on count 2. Regarding the sentence, the Court of Appeal found that the total sentence imposed was manifestly excessive and ordered a resentencing on counts 1 and 3.

The Court of Appeal dismissed the appellant's application for leave to adduce additional evidence and to rely on an affidavit and written submissions filed after the original sentencing hearing. The appeal was allowed in relation to counts 1 and 3, with the appellant's convictions on those counts set aside and new sentences to be determined. The appeal was dismissed in relation to count 2, with a new trial ordered. The appellant was resentenced in relation to counts 1 and 3.