R v Smail

The appellant, Mr Eric Smail, was convicted of murdering Mr Keith McCormick, a tetraplegic man who required constant care. Mr Smail killed Mr McCormick by cutting his throat. Mr Smail pleaded guilty to murder in the High Court and was sentenced to 12 years imprisonment with a minimum non-parole period of seven years. The Solicitor-General appealed against the sentence and the Court of Appeal increased Mr Smail’s sentence to life imprisonment with a minimum non-parole period of 13 years. Mr Smail then applied for leave to appeal to the Supreme Court against his sentence. The Supreme Court dismissed the application, but noted that further appellate consideration may be warranted. Mr Smail subsequently applied for an extension of time to appeal to the Court of Appeal against his conviction and sentence, arguing that he had pleaded guilty based on "misguided advice" from his former counsel concerning the sentence he would receive and when he would become eligible for parole. He also argued that the Court of Appeal should have offered him the opportunity to vacate his plea of guilty before it increased the sentence imposed in the High Court.

The Court of Appeal granted the extension of time, quashed Mr Smail’s conviction and set aside his sentence, and remitted the case to the High Court for trial. The Court found that there was an arguable case that there was a sentence indication in the High Court, and that Mr Smail was put in an intolerable position if he pleaded guilty. The Court emphasised the importance of the accused being present at sentencing matters and noted that a legislative scheme for sentence indications has not yet been put in place. The Court made orders that the judgment is not to be published in news media, the Internet or other publicly accessible databases until the final disposition of the trial, but publication in Law Reports or Law Digests is permitted.