SMITH -v- CARMODY [2014] WASC 412

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 412
Case No:	SJA:1064/2014	Heard:	27 OCTOBER 2014
Coram:	ALLANSON J	Delivered:	27/10/14
No of pages:	5	Judgment Part:	1 of 1
Result:	Extension of time granted Leave to appeal and the appeal allowed Conviction and sentence of imprisonment set aside Conviction of attempt and fine imposed
Category:	B
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Parties:	KEITH JAMES SMITH HANNAH RUTH CARMODY
Catchwords:	Criminal law Appeal against conviction after plea of guilty Miscarriage of justice Substitute conviction for attempt
Legislation:	Criminal Appeals Act 2004 (WA), s 8(2), s 14(1)(d), s 14(1)(i) Criminal Code (WA), s 10D, s 409(1)(c) Sentencing Act 1995 (WA), s 46, s 59
Case References:	Anderson v Pankhurst [No 2] [2012] WASC 326 Borsa v The Queen [2003] WASCA 254 Fazio v Zanetti [2012] WASC 426 Hogue v The State of Western Australia [2005] WASCA 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : SMITH -v- CARMODY [2014] WASC 412 CORAM : ALLANSON J HEARD : 27 OCTOBER 2014 DELIVERED : 27 OCTOBER 2014 FILE NO/S : SJA 1064 of 2014 BETWEEN : KEITH JAMES SMITH

Appellant

AND

HANNAH RUTH CARMODY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE C D ROBERTS

File No : PE 67336 of 2014

Catchwords:

Criminal law - Appeal against conviction after plea of guilty - Miscarriage of justice - Substitute conviction for attempt

Legislation:
Criminal Appeals Act 2004 (WA), s 8(2), s 14(1)(d), s 14(1)(i)
Criminal Code (WA), s 10D, s 409(1)(c)
Sentencing Act 1995 (WA), s 46, s 59

Result:

Extension of time granted

Leave to appeal and the appeal allowed
Conviction and sentence of imprisonment set aside
Conviction of attempt and fine imposed

Category: B

Representation:

Counsel:

Appellant : Ms S J Nims

Respondent : Ms T J Mcarthur

Solicitors:

Appellant : Legal Aid (WA)

Respondent : Director of Public Prosecutions (WA)

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

Anderson v Pankhurst [No 2] [2012] WASC 326
Borsa v The Queen [2003] WASCA 254
Fazio v Zanetti [2012] WASC 426
Hogue v The State of Western Australia [2005] WASCA 102

ALLANSON J

(This judgment was delivered extemporaneously on 27 October 2014 and has been edited from the transcript)

1 On 1 May 2014 the appellant, Keith James Smith, pleaded guilty in the Perth Magistrates Court to five separate charges including one charge of gaining a benefit by fraudulent means, namely using a stolen credit card to the value of $173, contrary to s 409(1)(c) of the Criminal Code (WA).

2 The material facts that were read to the court on his plea were that on 23 October 2013 Mr Smith entered a liquor store. He was in possession of a credit card stolen the day before. He handed the credit card to the shop attendant in payment for two bottles of alcohol. The shop attendant asked Mr Smith to sign the transaction receipt and, after checking the signature against…

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 Smith v Carmody

Details

AGLC: Smith v Carmody [2014] WASC 412
Case: [2014] WASC 412
Decision Date: 27 OCTOBER 2014

CaseChat Overview and Summary

In Smith v Carmody, the appellant, Mr. Smith, challenged his conviction for a criminal offence, specifically after having entered a guilty plea. The dispute arose from an incident where Mr. Smith was charged with a serious crime. The case was heard and determined by the Court of Appeal in Australia. The appellant contested the conviction, arguing it was a miscarriage of justice and sought to have his conviction substituted with one for an attempt to commit the crime.

The central legal issue before the court was whether the original conviction should stand, given the appellant's plea of guilty, or if a substituted conviction for the attempt should be considered due to the appellant's arguments of a miscarriage of justice. The court had to weigh the principles of finality in guilty pleas against the broader considerations of justice in exceptional circumstances.

The Court of Appeal found merit in Mr. Smith's arguments, recognising the potential for a miscarriage of justice. The court held that the original conviction should be set aside and a conviction for the attempt should be substituted instead. The reasoning focused on the fairness and equity of the outcome, considering the appellant's contentions and the broader implications for justice. The appeal was thus allowed, and the conviction and sentence of imprisonment were set aside, replaced with a conviction for the attempt and a fine imposed.

Orders

Orders of the court

Extension of time granted

Leave to appeal and the appeal allowed

Conviction and sentence of imprisonment set aside

Conviction of attempt and fine imposed

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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