Smith v The State of Western Australia
[2024] WASCA 114
•25 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 114
CORAM: BUSS P
MAZZA JA
SEAWARD J
HEARD: 25 JULY 2024
DELIVERED : 25 SEPTEMBER 2024
FILE NO/S: CACR 71 of 2024
BETWEEN: LEROY DANIEL SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS 47 of 2017
Catchwords:
Criminal law - Appeal against conviction - Criminal responsibility - Appellant and co‑accused convicted after a joint trial before a judge sitting alone of unlawful killing - Trial judge's construction and application of s 7(a) of the Criminal Code (WA) constituted a wrong decision on a question of law - Judgment of conviction set aside and new trial ordered
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(b)
Criminal Code (WA), s 7(a), s 272, s 280(1)
Result:
Leave to appeal granted
Appeal allowed
Judgment of conviction set aside
New trial ordered
Category: B
Representation:
Counsel:
| Appellant | : | J A Davies |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Jonathan A Davies |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Boag v The State of Western Australia [2023] WASCA 74
Boag v The State of Western Australia [No 2] [2024] WASCA 75
REASONS OF THE COURT:
The appellant has appealed against conviction.
On 26 February 2021, after a joint retrial before Corboy J (the trial judge) sitting alone without a jury, Lucas James Yarran, Ross James Boag and the appellant were convicted of having unlawfully killed Peta Lynette Fairhead, contrary to s 280(1), read with s 272, of the Criminal Code (WA) (the Code).
At the joint retrial the State contended that each of Mr Yarran, Mr Boag and the appellant did an act or a series of acts that threatened or intimidated Ms Fairhead.
The State alleged that Mr Yarran, Mr Boag and the appellant, by threats or intimidation, caused Ms Fairhead to do an act (namely, open the door of a moving vehicle in which she was a passenger, while not wearing a seat belt, and exit the vehicle), which resulted in her death.
On 28 April 2021, the trial judge sentenced the appellant to 8 years' imprisonment with eligibility for parole. His Honour backdated the sentence to 4 February 2019 and ordered that the sentence be served concurrently with other sentences the appellant was serving.
At the joint retrial the State relied solely upon s 7(a) of the Code in alleging that the appellant was criminally responsible for Ms Fairhead's unlawful killing. The trial judge held that the appellant was criminally responsible under s 7(a) in that Mr Yarran, Mr Boag and the appellant had acted in concert and the combination or totality of their acts or series of acts that threatened or intimidated Ms Fairhead had been a cause, and a significant or substantial cause, of Ms Fairhead's act which resulted in her death.
Mr Boag's appeal against his conviction following the joint retrial
On 25 May 2021, Mr Boag filed an appeal notice. In the notice Mr Boag applied for leave to appeal against his conviction following the joint retrial.
On 16 August 2021, Mr Boag filed a discontinuance notice in respect of the appeal.
On 18 August 2021, the Acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal in respect of Mr Boag's appeal.
On 2 September 2022, Mr Boag filed an application in an appeal for:
(a)leave to withdraw the discontinuance notice;
(b)an order setting aside the certificate of conclusion of criminal appeal; and
(c)an order extending the time to file the appellant's case.
On 5 May 2023, this court made orders substantially in the terms sought by Mr Boag in his application. See Boag v The State of Western Australia.[1]
[1] Boag v The State of Western Australia [2023] WASCA 74.
On 15 January 2024, this court heard Mr Boag's appeal. The court held that the trial judge's construction and application of s 7(a) of the Code constituted a wrong decision by his Honour on a question of law within s 30(3)(b) of the Criminal Appeals Act 2004 (WA). The court was not persuaded that his Honour's wrong decision was immaterial and could not have deprived Mr Boag of a chance of acquittal that was fairly open to him. Further, the court was not persuaded that no substantial miscarriage of justice had occurred. The court granted leave to appeal, allowed the appeal, set aside the judgment of conviction and ordered a new trial.
On 26 June 2024, the court published its reasons for making those orders in Mr Boag's appeal. See Boag v The State of Western Australia [No 2].[2]
[2] Boag v The State of Western Australia [No 2] [2024] WASCA 75.
The appellant's appeal against his conviction following the joint retrial
On 8 July 2024, the appellant filed an appeal notice in respect of his conviction following the joint retrial.
The draft grounds of appeal in the appellant's appeal notice alleged, in essence, that:
(a)The trial judge erred in law in deciding the appellant's guilt under s 7(a) of the Code on the basis that Ms Fairhead's act in opening the door of the vehicle was caused by the totality or combination of threats or acts of intimidation by all the accused acting in concert, and not on the basis of whether threats or acts of intimidation by the appellant of themselves were a cause of Ms Fairhead's act of opening the door of the vehicle, giving rise to a miscarriage of justice.
(b)The trial judge erred in law in deciding the appellant's criminal responsibility under s 7(a) on the basis that Ms Fairhead's act of opening the door of the vehicle was caused by the totality or combination of threats or acts of intimidation by all of the accused acting in concert, and not on the basis of whether threats or acts of intimidation by the appellant were of themselves a cause of Ms Fairhead's act of opening the door of the vehicle, giving rise to a miscarriage of justice.
At a directions hearing on 16 July 2024, counsel for the State informed the court that the merits of the appellant's appeal could not be distinguished from the merits of Mr Boag's appeal.
Following the directions hearing, the appellant's appeal was listed for hearing without requiring an appellant's case and a respondent's answer.
On 25 July 2024, at the hearing of the appeal, counsel for the State confirmed that the State did not oppose the making of orders similar to those that the court had made in relation to Mr Boag's appeal.
The court then made these orders:
(1)Leave to appeal on the draft grounds of appeal in the appeal notice granted.
(2)Appeal allowed.
(3)The judgment of conviction for unlawful killing is set aside.
(4)The appellant is to be retried on the count of unlawful killing.
The court made those orders for the reasons explained by the court in Boag v The State of Western Australia [No 2].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
25 SEPTEMBER 2024
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