De Alwis v WA [No 2]

[2015] WASCA 42

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Extension of time
4. › Springing order dismissing appeal for non-compliance
5. › Application to set aside
6. › Whether miscarriage of justice established
7. › Gross unexplained delay
8. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(2)(b), r 43(2)(g)(ii)
1. Criminal Law
2. › Defences
3. › Unwilled act
4. › Accident
5. › Self-defence
6. › Whether defences available where intent to harm proved
7. › Whether evidentiary basis for self-defence
8. › Criminal Code (WA), ss 23A, 23B, 248, 294(1), 304(2)
1. Criminal Law
2. › Trial
3. › Directions to jury
4. › Whether adequate directions on elements of offence and defences
5. › Direction that jury must be satisfied of deliberate striking
6. › Criminal Code (WA), s 304
1. Criminal Law
2. › Trial
3. › Adjournment
4. › Refusal of adjournment application
5. › History of adjournments and dismissal of counsel
6. › Whether refusal within proper exercise of judicial discretion

Quick Take

Proof of the fault element of intent to harm under s 304(2) of the Criminal Code (WA) negatives the defences of unwilled act (s 23A) and accident (s 23B). Where a defence case is that the accused did not strike the complainant at all, there is no evidentiary basis for self-defence under s 248. A trial judge may peremptorily dismiss an adjournment application without hearing submissions where the history of adjournments and dismissal of counsel makes the explanation for refusal patently obvious. An accused who refuses to make sentencing submissions despite repeated opportunities waives the right to be heard on sentencing.