O'Leary v The State of Western Australia

Jacob and Justin O'Leary appeal against their convictions of one count of, with intent to harm Nathan Hyland, doing an act as a result of which the life, health or safety of Mr Hyland was, or was likely to be, endangered. They were charged jointly with their brother, Logan O'Leary, and their mother, Judith Grose. Logan O'Leary and Ms Grose were acquitted. The appellants' grounds of appeal raise, in substance, the same issues. The first two of each appellant's grounds of appeal assert errors in the judge's directions concerning the elements of the offence. Ground 1 of each appeal asserts error as to what findings were necessary before each appellant could be found guilty on the basis of liability under s 7(a) of the Criminal Code. Ground 2 in each appeal asserts error in failing to direct the jury that before convicting the appellant, the jury needed to be satisfied that the relevant accused had the requisite intent under s 304(2)(b) throughout the 'act' that was relied on by the prosecution. Ground 3 in each appeal contends that the judge erred in directing the jury that evidence of a witness as to what the father of the three brothers told Logan was not admissible in the case for each appellant, unless they were satisfied it had been said within that appellant's hearing. Jacob advances an additional ground, ground 4, which asserts that the verdict of guilty was unreasonable or cannot be supported having regard to the evidence. The court upheld all grounds of Jacob's appeal, set aside his conviction and entered a judgment of acquittal. In Justin's appeal, the court upheld grounds 2 and 3 and ordered a retrial.