Donaldson v The State of Western Australia [No 2]
[2007] WASCA 217
•3 APRIL 2007
DONALDSON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 217
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 217 | |
| THE COURT OF APPEAL (WA) | 16/10/2007 | ||
| Case No: | CACR:99/2006 | 3 APRIL 2007 | |
| Coram: | STEYTLER P McLURE JA BUSS JA | 3/04/07 | |
| 3 | Judgment Part: | 1 of 1 | |
| Result: | Application to review allowed | ||
| B | |||
| PDF Version |
| Parties: | WAYNE KIRWAN DONALDSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for review of single judge decision to refuse leave on a ground of appeal Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(1) |
Case References: | Keating v The State of Western Australia [2007] WASCA 98 Lawless v Turner [2007] WASCA 127 Samuels v Western Australia (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DONALDSON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 217 CORAM : STEYTLER P
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : WHEELER JA
File No : CACR 99 of 2006
Catchwords:
Criminal law - Application for review of single judge decision to refuse leave on a ground of appeal - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1)
Result:
Application to review allowed
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Ms H E Prince
Respondent : Mr D Dempster
Solicitors:
Appellant : Dwyer Durack
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Keating v The State of Western Australia [2007] WASCA 98
Lawless v Turner [2007] WASCA 127
Samuels v Western Australia (2005) 30 WAR 473
(Page 3)
1 JUDGMENT OF THE COURT: On 20 October 2006, Wheeler JA refused to grant the appellant leave to appeal on ground 3 of his grounds of appeal against conviction, which read:
The learned trial Judge erred in directing the jury regarding the question of lies.
2 The appellant sought a review of Wheeler JA's decision to refuse leave on ground 3. On 3 April 2007, this court set aside her Honour's decision and granted the appellant leave to add ground 3, with reasons for granting leave to be published later. The court's reasons are as follows.
3 The appellant's application to review was not a hearing de novo. It was an appeal by way of rehearing, and it was necessary for the appellant to satisfy this court that Wheeler JA made an error in refusing leave to appeal: Keating v The State of Western Australia [2007] WASCA 98 [21]; Lawless v Turner [2007] WASCA 127 [4].
4 By the Criminal Appeals Act 2004 (WA), leave is required to appeal against either conviction or sentence from, relevantly, the District Court to the Court of Appeal (s 27(1)). See Samuels v Western Australia (2005) 30 WAR 473 at 478 [25]. The statutory test is, relevantly, that the leave of the Court of Appeal is required for each ground of appeal and, after an appeal is commenced, the court appealed to must not give leave on a ground unless it is satisfied the ground has 'a reasonable prospect of succeeding'.
5 Plainly, whether or not a ground of appeal has 'a reasonable prospect of succeeding' involves a question of judgment; in particular, the application of the relevant principles of law to the material facts and, in the present case, the terms of the trial judge's summing up to the jury.
6 It is sufficient to state that, in our respectful opinion, ground 3 did have 'a reasonable prospect of succeeding' and, as a result, leave to appeal on that ground should have been granted, in that there were reasonable prospects of satisfying this court that the jury could have been misled by the trial judge's directions into thinking that if they found the appellant was lying in relation to any issue, then they could use that finding as evidence of his guilt.
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