Santos v The State of Western Australia

The case of Santos v The State of Western Australia involves the appellant, Santos, appealing against an order by the Supreme Court of Western Australia which denied his request for a separate trial from his co-accused. The appellant argues that the amendments to the Criminal Law and Evidence Amendment Act 2008 (WA) apply to his case, and that the appeal is not barred by time. The central legal issues for the court to decide include whether the amended provisions of the Criminal Appeals Act operate retrospectively, and if so, whether the appeal was brought within the relevant time limits. Additionally, the court needed to determine whether the appellant was prejudiced by a joint trial, and if there were any measures that could be taken to mitigate any potential prejudice.

The court considered the nature of the right to appeal and the point at which it accrues. It held that an appeal right does not accrue until the factual foundation for the appeal exists, and that an expectation of a right does not constitute an accrued right. The court also examined whether the amendments to the Criminal Appeals Act operated retrospectively, concluding that the changes to the time limits for appeals did not materially affect the substantive right to appeal. Instead, the amendment simply placed a limitation on when the right could be exercised. The court found that the right to appeal accrued after the appellant and his co-accused were jointly charged, which was after the amendment came into effect. Therefore, the amended provisions applied to the appellant's case.

As a result, the court found that the appeal was not time-barred and that the appellant was entitled to appeal the decision to deny a separate trial. The court also considered whether the appellant would be unduly prejudiced by a joint trial, but concluded that any potential prejudice could be guarded against by appropriate directions to the jury. The final orders of the court were that the appeal against the order denying a separate trial would be allowed, and that the matter would be remitted to the Supreme Court for further consideration.