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Smith v The State of Western Australia

Smith v The State of Western Australia

Case [2024] WASCA 52 14 May 2024

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 52
CORAM:   QUINLAN CJ
MAZZA JA
VANDONGEN JA

HEARD:   10 OCTOBER 2023
DELIVERED          :   14 MAY 2024
FILE NO/S:   CACR 7 of 2023
BETWEEN:   BRADLEY WILLIAM DEREK SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
File Number            :   IND 729 of 2021

Catchwords:

Criminal law - Appeal against conviction - Whether verdict was unreasonable or cannot be supported by the evidence - Whether verdict of guilty of persistent sexual relationship with a child inconsistent with verdicts of not guilty on other charges - Whether trial judge's private communication with the jury occasioned a miscarriage of justice - Application of proviso - Whether retrial should be ordered

Legislation:

Criminal Appeals Act 2004 (WA), s 28(3), s 30(3), s 30(4), s 40(1)
Criminal Code (WA), s 321(2), s 321(4), s 321A
Criminal Procedure Act 2004 (WA), s 88(3)
Evidence Act 1906 (WA), s 106N(3a), s 106R(1), s 106R(4)

Result:

Extension of time granted
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Leave to appeal on ground 3 granted
Appeal allowed
Judgment of conviction on count 17 set aside
Acquittal ordered on count 17

Category: A

Representation:

Counsel:

Appellant	:	In person
Respondent	:	K C Cook

Solicitors:

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

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

AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505
Carson (a pseudonym) v The Queen [2019] VSCA 317
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
DPJB v The State of Western Australia [2010] WASCA 12
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
NTH v The State of Western Australia [2020] WASCA 22
R v Black [2007] VSCA 61; (2007) 15 VR 551
R v Crowe [1985] 2 Qd R 389
R v Gorman [1987] 2 All ER 435
R v Kashani-Malaki [2010] QCA 222
R v Kirkman (1987) 44 SASR 591
R v Lovegrove [2007] SASC 283
R v Yuill (1994) 34 NSWLR 179; (1994) 77 A Crim R 314
Rabey v The Queen [1980] WAR 84
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495
Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532
Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161
Sturniolo v The State of Western Australia [2023] WASCA 147
Thomas v The Queen (No 2) [1960] WAR 129
Weiss v The Queen…

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 The State of Western Australia

Details

AGLC: Smith v The State of Western Australia [[2024]] WASCA 52
Case: [2024] WASCA 52
Decision Date: 14 MAY 2024

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Smith, the appellant, sought to appeal his conviction for engaging in a persistent sexual relationship with a child. Smith's appeal focused on the contention that his conviction was unreasonable and not supported by the evidence. Additionally, Smith argued that his conviction for the persistent sexual relationship with a child was inconsistent with the jury's verdict of not guilty on other charges against him. Furthermore, Smith contended that a miscarriage of justice occurred due to the trial judge's private communication with the jury. The appeal also raised questions regarding the application of a specific proviso in the context of the case and whether a retrial should be ordered.

The court considered whether the verdict was unreasonable or not supported by the evidence, specifically in light of the inconsistency between the guilty verdict for the persistent sexual relationship and the not guilty verdicts on other charges. The court also examined the implications of the trial judge's private communication with the jury, assessing whether this communication had any impact on the fairness of the trial. The court was required to determine whether the communication warranted a miscarriage of justice and whether the proviso applied in this context. Additionally, the court had to decide if a retrial was necessary given the issues raised by the appellant.

The court found that the verdict was supported by the evidence and was not unreasonable, despite the inconsistency with other verdicts. The court concluded that the trial judge's private communication with the jury did not occasion a miscarriage of justice and did not impact the fairness of the trial. The court also determined that the proviso did not apply in the circumstances of this case. Consequently, the court decided that a retrial was not warranted. The appeal was dismissed, and Smith's conviction was upheld.

The court ordered that the appeal be dismissed and that Smith's conviction for engaging in a persistent sexual relationship with a child be upheld. The court found no basis for a retrial or for overturning the verdict based on the issues raised by the appellant. The court's decision was final, and Smith's conviction stood as determined by the jury.

Orders