Santos v WA

[2011] WASCA 216

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Preliminary appeal against refusal of separate trial
4. › Time limitation on appeal
5. › Whether appeal commenced before day trial listed to start
6. › Whether deferral of jury empanelment changed listed commencement date
7. › Criminal Appeals Act 2004 (WA), s 26(5), s 26(6)
8. › Criminal Procedure Act 2004 (WA), s 133(7)
1. Criminal Law
2. › Separate trial
3. › Joint trial of co-accused
4. › Whether accused likely to be prejudiced
5. › Whether prejudice can be guarded against by jury directions
6. › Cut-throat defences
7. › Propensity evidence ruled inadmissible in prosecution case potentially adduced by co-accused
8. › Criminal Procedure Act 2004 (WA), s 133(4), s 133(5)
1. Statutory Interpretation
2. › Retrospective operation of legislation
3. › Amendments to limitation provisions for criminal appeals
4. › Whether right to appeal had accrued before amendments commenced
5. › Distinction between accrued right and mere expectation
6. › Interpretation Act 1984 (WA), s 37(1)(c)
7. › Criminal Law and Evidence Amendment Act 2008 (WA)
1. Statutory Interpretation
2. › Construction of overlapping legislative scheme
3. › Criminal Procedure Act 2004 (WA) and Criminal Appeals Act 2004 (WA)
4. › Use of parliamentary debates as extrinsic material
5. › Interpretation Act 1984 (WA), s 16(2), s 19(1)

Quick Take

The phrase 'the day on which the accused's trial is listed to start' in s 133(7) of the Criminal Procedure Act 2004 (WA) and s 26(5)-(6) of the Criminal Appeals Act 2004 (WA) refers to the date set or fixed by the court for commencement of the trial, not the date of jury empanelment or the date evidence is first adduced. A trial judge's deferral of jury empanelment to deal with preliminary applications does not change the listed commencement date. A right to appeal under s 26(3)(b) cannot accrue until the accused are jointly charged and an application for separate trials has been determined; a mere expectation of being jointly charged is insufficient.