Smart v The Queen - [2021] WASCA 175

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMART -v- THE QUEEN [2021] WASCA 175
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   10 AUGUST 2021
DELIVERED          :   29 SEPTEMBER 2021
FILE NO/S:   CACR 99 of 2019
BETWEEN:   ANDREW JACOB SMART
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   IND 893 of 2018

Catchwords:

Criminal law - Commonwealth offences - Telecommunication offences - Using a carriage service in a way that reasonable persons would regard as menacing or harassing - Using a carriage service to make a threat to cause serious harm to a person with the intention that the person would fear that the threat would be carried out - Whether trial judge erred in directing the jury as to the elements of the offences - Whether trial should have been aborted after reception of inadmissible prejudicial evidence - Turns on own facts

Legislation:

Criminal Code (Cth), s 474.15(2), s 474.17(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	A C Willinge

Solicitors:

Appellant	:	In person
Respondent	:	Commonwealth Director of Public Prosecutions

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

Huggins v The State of Western Australia [2018] WASCA 61
Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92
Taylor v The State of Western Australia [2020] WASCA 113

JUDGMENT OF THE COURT:

Summary

The appellant was convicted after trial of the following two offences charged on the same indictment:
Count 2: Between 8 January 2017 and 10 January 2017 at Perth the appellant used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth) (Code).
Count 3: On 8 January 2017 at Perth the appellant used a carriage service to make to a person a threat to cause serious harm to that person with the intention that the person to whom the threat was made would fear that the threat would be carried out; contrary to s 474.15(2) of the Code.
On 5 June 2019, the appellant was sentenced to 3 months' immediate imprisonment on count 2, and 10 months' immediate imprisonment on count 3. The sentences were ordered to be served concurrently, and backdated to 12 June 2018 to take account of time spent in custody on remand.
The appellant now appeals against his convictions on a number of grounds. For the following reasons, none of the grounds has any merit. Leave to appeal should be refused and the appeal should be dismissed.

Statutory provisions

Section 474.15(2) of the Code provides for the following offence:
A person (the first person) commits an offence if:
(a)the first person uses a carriage service to make to another person (the second person) a threat to cause serious harm to the…

Grounds of appeal

[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.

Continue reading Smart v The Queen

Details

AGLC: Smart v The Queen [2021] WASCA 175
Case: [2021] WASCA 175
Decision Date

CaseChat Overview and Summary

In the case of Smart v The Queen, the appellant, Andrew Jacob Smart, appealed against his convictions and sentences for using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, and for using a carriage service to make a threat to cause serious harm to a person with the intention that the person would fear that the threat would be carried out. The Court of Appeal of Western Australia found no merit in any of the appellant's grounds of appeal and dismissed the appeal. The appellant had been convicted and sentenced after a trial in the District Court of Western Australia. The trial judge provided the jury with a handout that identified the elements of the offences, and gave oral directions that explained the meaning of the terms 'menacing' and 'harassing'. The jury was told that the jury handout was not a substitute for the trial judge's oral directions. The trial judge gave an adequate direction to the jury to avoid any perceptible risk of a miscarriage of justice arising from the inadvertent reception of inadmissible prejudicial evidence. The Court of Appeal found that there was no error in the trial judge's direction to the jury as to the elements of the offences, and that the prejudicial effect of the questioning could be cured by a direction to the jury, rather than by aborting the trial. The Court also found that there was no merit in the appellant's complaints about the performance of his trial counsel, and that there was no proper evidentiary basis for the unsubstantiated assertions of perjury.

Orders