Smith v The Queen

(2003) 138 A Crim R 403; [2003] WASCA 57

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Practice and procedure
3. › Retrial after hung jury
4. › Whether Crown entitled to present different indictment at retrial
5. › Whether change of indictment constituted abuse of process
1. Criminal Law
2. › Evidence
3. › Res gestae
4. › Uncharged offences forming part of the transaction
5. › Distinction between res gestae evidence and similar fact evidence
6. › Whether evidence of uncharged criminal conduct admissible as part of res gestae without meeting similar fact threshold
1. Criminal Law
2. › Evidence
3. › Acquittal at prior trial
4. › Whether evidence relating to charge of which accused acquitted may be led at retrial on different charge
5. › Whether double jeopardy
6. › Directions to jury regarding acquittal
1. Criminal Law
2. › Sentencing
3. › Crown appeal against sentence
4. › Causing grievous bodily harm with intent to disable
5. › Whether sentence manifestly inadequate
6. › Relevance of youth and prior good character as mitigating factors
7. › Discount for double jeopardy on Crown appeal

Quick Take

The Crown is entitled to present a different indictment at retrial after a hung jury, including changing the alleged intent, and may lead evidence of uncharged offences forming part of the res gestae. The Wilkes principle restricting supplementation of a defective Crown case applies only to retrials following quashing of a conviction, not to retrials after a jury fails to agree. A sentence of 6 years for causing near-fatal grievous bodily harm with intent to disable in the context of a robbery, where the offender left the victim locked in a house bleeding to death, was manifestly inadequate.