Smart v Albuquerque

Case [2011] WASCA 231


SMART -v- ALBUQUERQUE [2011] WASCA 231



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASCA 231
THE COURT OF APPEAL (WA)
Case No:CACR:192/201028 JULY 2011
Coram:McLURE P
BUSS JA
MAZZA J
26/10/11
14Judgment Part:1 of 1
Result: Leave refused
Appeal dismissed
B
PDF Version
Parties:ANDREW JACOB SMART
SANJEEV ANTHONY ALBUQUERQUE

Catchwords:

Criminal law
Leave to appeal against conviction
Assaulting a public officer
Appellant spat in the face of a prison officer
Whether judge hearing appeal should have disqualified himself due to actual or apprehended bias
Whether verdict unsafe or unsatisfactory
Whether a miscarriage of justice occurred

Legislation:

Criminal Appeals Act 2004 (WA), s 9(2)
Criminal Code (WA), s 318(1)(d)

Case References:

Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Harvey v Matthews [1999] WASCA 58
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Rasoolifard v Nicol [2001] WASCA 180
Smart v Albuquerque [2010] WASC 323
Smart v Scott [2007] WASC 295
Smart v The State of Western Australia [2010] WASCA 218
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMART -v- ALBUQUERQUE [2011] WASCA 231 CORAM : McLURE P
    BUSS JA
    MAZZA J
HEARD : 28 JULY 2011 DELIVERED : 26 OCTOBER 2011 FILE NO/S : CACR 192 of 2010 BETWEEN : ANDREW JACOB SMART
    Appellant

    AND

    SANJEEV ANTHONY ALBUQUERQUE
    Respondent


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : McKECHNIE J

Citation : SMART -v- ALBUQUERQUE [2010] WASC 323

File No : SJA 1063 of 2010


Catchwords:

Criminal law - Leave to appeal against conviction - Assaulting a public officer - Appellant spat in the face of a prison officer - Whether judge hearing appeal



(Page 2)

should have disqualified himself due to actual or apprehended bias - Whether verdict unsafe or unsatisfactory - Whether a miscarriage of justice occurred

Legislation:

Criminal Appeals Act 2004 (WA), s 9(2)


Criminal Code (WA), s 318(1)(d)

Result:

Leave refused


Appeal dismissed

Category: B


Representation:

Counsel:


    Appellant : In person
    Respondent : No appearance

Solicitors:

    Appellant : In person
    Respondent : Director of Public Prosecutions (WA)



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

Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Harvey v Matthews [1999] WASCA 58
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Libke v The Queen…

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AGLC
Smart v Albuquerque [2011] WASCA 231
Case
[2011] WASCA 231
Decision Date

CaseChat Overview and Summary

In the matter of Smart v Albuquerque, the appellant sought leave to appeal against his conviction for assaulting a public officer. The appellant had spat in the face of a prison officer. The legal issue before the court was whether the judge hearing the appeal should have disqualified himself due to actual or apprehended bias, whether the verdict was unsafe or unsatisfactory, and whether a miscarriage of justice occurred. The court held that there was no actual or apprehended bias, and the verdict was both safe and satisfactory. The appellant's argument that the judge should have disqualified himself was rejected, as the court found that there was no evidence to support a finding of actual or apprehended bias. Furthermore, the court found that the verdict was safe and satisfactory, and that there was no miscarriage of justice. Accordingly, the court refused leave to appeal and dismissed the appeal. The orders of the court were that leave to appeal was refused and the appeal was dismissed.

Orders

Orders of the court

Leave refused

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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