CLEARY -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 32 | Case summary

[3] Transcript, The State of Western Australia v John Paul Cleary, District Court of Western Australia, 13 February 2025, 369 (Ts).

Court of Appeal (WA)|2026-03-13|Before: Quinlan CJ

For the reasons which we have set out, we would refuse leave to appeal on all grounds in the conviction and sentencing appeals, apart from ground 4 of the sentencing appeal. We would grant leave to appeal on ground 4 of the sentencing appeal. However, we would dismiss both of the appeals.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[3] Transcript, The State of Western Australia v John Paul Cleary, District Court of Western Australia, 13 February 2025, 369 (Ts).

[10] BGAB 79 (Ex 19). See also Ts 346 ‑ 347, 370.

[12] This was based upon the evidence of SC Rowlands (Ts 348). See also Ts 373.

[26] WAB 17 (Appellant's Case (Conviction Appeal) [57] ‑ [58]). See also Ts 400.

[29] Appeal ts 34. See also WAB 14 (Appellant's Case (Conviction Appeal) [38]).

[30] McPherson v Lucas [2008] WASCA 56; (2008) 181 A Crim R 587 [24] (McLure JA, Wheeler & Miller JJA agreeing), based upon analysis of Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 and McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44.

[33] McPherson [25] ‑ [26]; Donovan v The State of Western Australia [2017] WASCA 170; (2017) 53 WAR 1 [50] ‑ [51] (Mazza, Beech & Hall JJA); De Pledge v The State of Western Australia [2021] WASCA 1 [16] ‑ [17] (Buss P, Mazza & Mitchell JJA).

[48] WAB 13 (Appellant's Case (Conviction Appeal)). See also ts 400.

[51] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA).

[53] See [32] ‑ [36] above. See also [58] ‑ [60] above.

[55] WAB 20 (Appellant's Case (Conviction Appeal) [77]).

[56] WAB 20 (Appellant's Case (Conviction Appeal) [75]); De Silva v the Queen [2019] HCA 48; (2019) 268 CLR 57 [11] ‑ [12].

[57] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

[60] De Silva v The Queen [12]. See also MEN v The State of Western Australia [2020] WASCA 118 [689] ‑ [691] (Quinlan CJ & Beech JA, Mitchell JA agreeing).

[64] MEN v The State of Western Australia [693].

[72] Ts 548. See the appellant's evidence at ts 367 ‑ 368.

[75] Ts 549. See the appellant's evidence at ts 368.

[77] Liu v The Queen (1989) 40 A Crim R 468; Langridge v The Queen (1996) 17 WAR 346; (1996) 87 A Crim R 1; Care v R [2022] NSWCCA 101 [70] ‑ [72].

[78] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[82] Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1 [44]; Smith v The State of Western Australia [2022] WASCA 170; (2022) 103 MVR 80 [46]; The State of Western Australia v Staltari [2024] WASCA 141 [62]; Glasfurd v The State of Western Australia [2024] WASCA 7 [87].

[90] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380; Paulose v The State of Western Australia [2019] WASCA 182; (2019) 90 MVR 386.

[92] Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551.

[94] Rhodes v The State of Western Australia [2022] WASCA 168; (2022) 103 MVR 90.

[96] Smith v The State of Western Australia [2022] WASCA 170; (2022) 103 MVR 80.

[102] De Pledge v The State of Western Australia [2021] WASCA 1; (2021) 95 MVR 37.

[109] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426.

[112] Gray v The State of Western Australia [2015] WASCA 108; (2015) 71 MVR 31.

[114] Timbrell [No 2] [3], [14], [74] ‑ [75].

[115] Timbrell [No 2] [4] ‑ [5].

Law Amendment (Homicide) Act 2008

The State's position is that the objective physical movement of the car is a fact in issue in an offence under s 59A. That is wrong. The relevant fact in issue is the actual driving behaviour of the driver: R v Coventry [1938] HCA 31; (1938) 59 CLR 633; McBride. The objective physical movement of the car is only a fact from which an inference about the actual driving behaviour of the driver can often but not always be drawn. It will most often be drawn when the driving is intrinsically dangerous regardless of the circumstances. It will be drawn less often when the quality of the driving depends on the surrounding circumstances as in McBride and this case.

CLEARY -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 32 (13 March 2026)

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