O'Dea v Western Australia [2022] HCA 24

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN AND STEWARD JJ

BRETT CHRISTOPHER O'DEA APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA RESPONDENT

O'Dea v Western Australia

[2022] HCA 24

Date of Hearing: 4 May 2022

Date of Judgment: 10 August 2022

P53/2021

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 13 April 2021 and, in their place, order that:

(a) there be an extension of time within which to apply for leave to appeal;

(b) leave to appeal be granted;

(c) the appeal be allowed;

(d) the appellant's conviction be set aside; and

(e) there be a new trial.

On appeal from the Supreme Court of Western Australia

Representation

S Vandongen SC with A O Karstaedt for the appellant (instructed by NR Barber Legal)

A L Forrester SC with S D Packham for the respondent (instructed by Office of the Director of Public Prosecutions (WA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

O'Dea v Western Australia

Criminal law – Parties to offence – Principal offenders – Where appellant and another charged jointly with offence of unlawfully doing grievous bodily harm with intent under s 294(1)(a) of Criminal Code (WA) – Where prosecution relied on s 7(a) of Criminal Code, which deems "[e]very person who actually does the act … which constitutes the offence" to be guilty of offence – Where uncertainty as to which act or acts of appellant or co-accused, or combination of their acts, caused grievous bodily harm – Where trial judge relevantly directed jury they could convict appellant under s 7(a) if satisfied beyond reasonable doubt that appellant and co-accused were "acting in concert, each of them doing one or more of the acts which caused" grievous bodily harm and that "[t]he relevant accused's acts were unlawful" – Whether s 7(a) permits acts of person to be attributed to another – Whether jury direction occasioned miscarriage of justice.