Smith v The Queen

(2008) 37 WAR 297; [2008] WASCA 128

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Trial
3. › Summing up
4. › Judge's comments on factual issues
5. › Failure to direct jury that comments not binding
6. › Whether miscarriage of justice occasioned
7. › Criminal Procedure Act 2004 (WA), s 112
1. Criminal Law
2. › Appeal
3. › Proviso
4. › Whether proviso should be applied
5. › Serious breach of presuppositions of trial process
6. › Whether impact of irregularity on fairness of trial can be assessed
7. › Criminal Appeals Act 2004 (WA), s 30(4)
1. Criminal Law
2. › Evidence
3. › Sufficiency of evidence
4. › Whether convictions unreasonable or unsupported by evidence
5. › Proxy voting at general meetings of public companies
6. › Whether prosecution required to prove votes cast on a poll
7. › Whether sufficient to prove proxies 'taken into account'
8. › Corporations Law, ss 232(2), 243ZF
1. Criminal Law
2. › Trial
3. › Indictment
4. › Amendment of indictment during trial
5. › Splitting duplex counts
6. › Whether re-arraignment required
7. › Criminal Procedure Act 2004 (WA), s 132

Quick Take

To establish breaches of s 232(2) and s 243ZF of the Corporations Law based on proxy voting at general meetings, the prosecution must prove beyond reasonable doubt that the votes were actually cast on a poll, not merely that proxies were 'taken into account'. A trial judge's failure to warn the jury that factual comments are not binding upon them constitutes a serious breach of the presuppositions of the trial process that denies the application of the proviso under s 30(4) of the Criminal Appeals Act 2004 (WA), where the comments are unfair and it is impossible to assess their impact on the fairness of the trial.