Upton v The State of Western Australia

Upton sought leave to appeal against his conviction under the Misuse of Drugs Act 1981 (WA). The applicant, who was the appellant in the criminal proceedings below, had been convicted on the basis of intercepted phone calls which were admitted as evidence. The Supreme Court of Western Australia was asked to decide whether the appeal had a reasonable prospect of success and whether there should be an extension of time to file the notice of appeal.

The court considered whether the grounds of appeal, namely the admissibility of the intercepted phone calls, had a reasonable prospect of success. The appellant contended that the intercepted phone calls were inadmissible on the grounds of relevance, hearsay, and propensity evidence. The court needed to determine whether the trial judge erred in admitting the phone calls as evidence and whether such an error was likely to have affected the outcome of the trial.

In allowing the application for leave to appeal, the court held that the grounds of appeal had a reasonable prospect of success. The court found that the intercepted phone calls were indeed inadmissible as they were both hearsay and irrelevant to the issues before the court. Furthermore, the propensity evidence argument was also found to be valid, as the phone calls were used to demonstrate a propensity to commit the offence rather than being directly related to the facts of the case. However, despite granting leave to appeal, the court dismissed the appeal on the basis that the errors in admitting the phone calls did not affect the outcome of the trial.

No further orders were made.