Smith v WA Police - [2025] WASC 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SMITH -v- WA POLICE [2025] WASC 201
CORAM:   PALMER J
HEARD:   22 MAY 2025
DELIVERED          :   22 MAY 2025
FILE NO/S:   SJA 1057 of 2024
BETWEEN:   DELSON VERNON SMITH
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1057 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   AM 29927/1994; MH 1014/2024

Catchwords:

Criminal law - Single judge appeal - Road Traffic Act 1974 (WA) - Appeal based on new evidence - Leave to appeal refused - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	Mr J A Kirke

Solicitors:

Appellant	:	No appearance
Respondent	:	State Solicitor's Office

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

Johnson v Matthews [2020] WASC 122
Li v Skala [2018] WASC 353
Rodi v The State of Western Australia [2017] WASCA 81
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193
Suleiman v The State of Western Australia [2017] WASCA 26

PALMER J:

Introduction

In this appeal, the appellant (Mr Smith) seeks to appeal a decision of Magistrate O'Donnell to confiscate a motor vehicle pursuant to s 80C of the Road Traffic Act 1974 (WA) (Road Traffic Act), made on 20 August 2024 in the Narrogin Magistrates Court.
The confiscation order was made as a consequence of Mr Smith's earlier conviction, on 9 April 2024, in the Mandurah Magistrates Court, for driving contrary to an extraordinary licence condition. As the confiscation order was made as a consequence of a conviction, Mr Smith may appeal the order pursuant to s 6(f) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). Such an appeal may only be made on one or more of the grounds in s 8(1) of that Act, including that the primary court made an error of law or fact or there has been a miscarriage of justice[1] and leave to appeal is required.[2]
[1] Criminal Appeals Act s 8(1)(b).
[2] Criminal Appeals Act s 9.
Mr Smith is self-represented. The sole ground of appeal given in the appeal notice dated 27 August 2024, is 'New evidence/Support letters'.
On 11 October 2024, Mr Smith filed a minute of proposed amended grounds of appeal which indicated that he has support letters that he did not provide to the Narrogin Magistrates Court. On the same date he filed an affidavit attaching various letters.
On 4 November 2024, Mr Smith was ordered to file, by 12 December 2024, any document identifying the nature of the error that it was alleged that Magistrate O'Donnell made, or why there had been a miscarriage of justice. The time for compliance with that order has been extended twice, first by Registrar Whitbread on 20 December 2024, and then again by Forrester J on…

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 WA Police

Details

AGLC: Smith v WA Police [2025] WASC 201
Case: [2025] WASC 201
Decision Date: 22 MAY 2025

CaseChat Overview and Summary

The appeal was lodged by Smith, who had been convicted of a traffic offence under the Road Traffic Act 1974 (WA). Smith sought leave to appeal based on what he claimed was new evidence, which he argued would have changed the outcome of the conviction. The matter was heard in the Court of Appeal of Western Australia. Smith's appeal was based on the contention that additional evidence, which had come to light after his conviction, demonstrated his innocence. The appeal sought to overturn the decision of the lower court and secure a new trial.

The central legal issue for the court was whether the new evidence was indeed so significant that it warranted a departure from the usual rules against appeals based on new evidence. The court needed to determine if the evidence was of a kind that, had it been available at the time of the original trial, would have likely led to a different outcome. This required the court to balance the importance of finality in criminal convictions against the need to ensure justice is served, particularly when new evidence comes to light that may be critical.

The court found that the new evidence, while potentially relevant, did not meet the threshold required to justify a departure from the established principles governing appeals based on new evidence. The court reasoned that the evidence, while it may have had some bearing on the case, was not of a nature that it would have necessarily led to a different verdict if it had been presented at the original trial. The court emphasised the importance of maintaining the finality of criminal convictions and noted that the appeal turned on the specific facts of the case. Consequently, the appeal was dismissed, and the conviction upheld.

Orders