Roe (Dec) v The State of Western Australia

[2017] WASCA 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ROE (Dec) -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 218

CORAM:   BUSS P

MAZZA JA
BEECH JA

HEARD:   21 NOVEMBER 2017

DELIVERED          :   21 NOVEMBER 2017

FILE NO/S:   CACR 205 of 2016

BETWEEN:   JOSEPH THOMAS ROE (Dec)

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MARTIN CJ

File No  :INS 130 of 2015

Catchwords:

Criminal law - Appeal against conviction - Appellant died before hearing - Whether appeal has abated

Legislation:

Criminal Appeals Act 2004 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Not applicable

Respondent:     Ms K C Cook

Amicus Curiae                   :    Mr S R McGrath

Solicitors:

Appellant:     Not applicable

Respondent:     Director of Public Prosecutions (WA)

Amicus Curiae                   :    Mr S R McGrath

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

Bell (Dec) v The State of Western Australia [2015] WASCA 236

1. JUDGMENT OF THE COURT:    On 24 August 2016, after a trial before Martin CJ and a jury, the appellant was convicted of murder.

2. On 25 November 2016, the trial judge sentenced the appellant to life imprisonment with a minimum non‑parole period of 21 years.  The sentence was backdated to 28 September 2014.

3. On 21 December 2016, the appellant filed an appeal notice in relation to his conviction together with an application for an extension of time to appeal against conviction.  The last date for appealing was 16 December 2016.

4. The draft ground of appeal set out in the appeal notice alleged, in essence, that the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it was unreasonable or could not be supported.

5. The appellant did not file an appellant's case as required by the rules.  After the appellant failed to file his appellant's case there were a number of directions hearings.

6. On 21 September 2017, the appellant died.  As at the date of his death, the appellant had still not filed his appellant's case and his appeal had not been heard.

7. On 30 October 2017, the State filed an application in the appeal for an order that the appeal be dismissed.

8. On a proper construction of the Criminal Appeals Act 2004 (WA), the appeal commenced by the appellant against his conviction abated upon his death. See, in the context of an offender's appeal against sentence, Bell (Dec) v The State of Western Australia [2015] WASCA 236.

9. The proper course for the court is to make the order sought by the State in its application.

10. Accordingly, the court orders that the appellant's appeal against conviction be dismissed.