CITATION: KITTO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 161
CORAM: MURPHY JA
MAZZA JA
MITCHELL JA
HEARD: 16 SEPTEMBER 2019
DELIVERED : 25 OCTOBER 2019
FILE NO/S: CACR 6 of 2019
BETWEEN: DARYL RAYMOND SIDNEY KITTO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 9 of 2019
BETWEEN: DARYL RAYMOND SIDNEY KITTO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: DERRICK J
File Number : IND 226 OF 2017
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of 'ram–raid' offences, including stealing, criminal damage, aggravated burglary and criminal damage by fire - Alleged prejudicial material - Audio evidence of a telephone call made by a co–accused containing prejudicial material from which the jury could likely draw an inference that the appellant was in custody at the time - Where trial judge had directed that this part of the recording to be edited out of the version to be played to the jury - Where inadvertently a recording without the edit was played to the jury - Subsequent directions dealing with the mistake - Whether mistake involved a miscarriage of justice - Whether departure from a trial according to law - Whether mistake resulted in an unfair trial
Criminal law - Appeal against sentence - Where appellant already serving a sentence of 2 years 4 months - Where appellant received total effective sentence of 7 years 8 months' imprisonment for all of the offending including the other offending for which he had been sentenced - Whether first limb of totality principle infringed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kitto v The State of Western Australia [2019] WASCA 161
Case
[2019] WASCA 161
Decision Date
CaseChat Overview and Summary
The appellant was convicted following a trial for a series of offences, including stealing, criminal damage, aggravated burglary, and criminal damage by fire, committed during a ram-raid. The appellant sought to appeal both his conviction and his sentence. In relation to the conviction, it was argued that the trial had been compromised by the inadvertent playing of an edited version of a telephone call to the jury. The call, which contained prejudicial material suggesting the appellant was in custody at the time of the offence, had been edited out by the trial judge but was inadvertently played to the jury. The appellant contended that this constituted a miscarriage of justice, a departure from a trial according to law, and an unfair trial. In relation to the sentence, the appellant submitted that the total effective sentence of 7 years and 8 months, when combined with a concurrent sentence of 2 years and 4 months, infringed the first limb of the totality principle.
The court considered whether the inadvertent playing of the edited telephone call constituted a miscarriage of justice, a departure from a trial according to law, or an unfair trial. The court held that while the error was serious, it did not result in a miscarriage of justice. The court reasoned that the trial judge had given clear directions to the jury to disregard the prejudicial material, and the jury was reminded of the direction on several occasions. The court further held that the error did not result in a departure from a trial according to law. The court concluded that the error did not render the trial unfair, as the jury was given an opportunity to focus on the relevant evidence and the trial judge had taken steps to mitigate the impact of the error. In relation to the sentence, the court held that the appellant's argument under the first limb of the totality principle did not succeed, as the trial judge had considered the appellant's prior record and the need for deterrence and denunciation in imposing the sentence. The appeal against conviction and sentence was dismissed.