STARR -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 59

[2026] WASCA 59 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STARR -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 59 CORAM : THOMSON P ARCHER JA SMITH AUJ HEARD : 6 MARCH 2026 DELIVERED : 6 MARCH 2026 PUBLISHED : 30 APRIL 2026 FILE NO/S : CACR 95 of 2025 BETWEEN : JOHN ROBERT STARR Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : HALL J File Number : INS 69 OF 2020 -- 1 of 15 -- [2026] WASCA 59 Page 2 Catchwords: Criminal Law - Conviction appeal - Appellant and two co-accused jointly charged with murder - State alleged one or both of appellant and a co-accused were criminally responsible under s 7(a) of the Criminal Code (WA) - Whether jury direction occasioned miscarriage of justice in light of subsequent decision in O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315 Delay in instituting an appeal - Extension of time - Principles governing an application to extend time where there has been a lengthy delay Legislation: Criminal Appeals Act 2004 (WA) Criminal Code (WA) Result: Application for an extension of time to appeal granted Appeal allowed Judgment of conviction on count 1 set aside Judgment of conviction on count 2 stands A new trial of the appellant on count 1 ordered Category: B Representation: Counsel: Appellant : T R Stephenson Respondent : K C Cook Solicitors: Appellant : T R Stephenson Respondent : The Director of Public Prosecutions for The State of Western Australia -- 2 of 15 -- [2026] WASCA 59 Page 3 Cases referred to in decision: Gittos v The State of Western Australia [2024] WASCA 107 NFC v The State of Western Australia [2025] WASCA 181 O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315 R v Wyles; Ex parte Attorney-General [1977] Qd R 169 Rahimi v The State of Western Australia [2024] WASCA 13 Taylor v The State of Western Australia [2023] WASCA 190 VJS v The State of Western Australia [2017] WASCA 172 Wilson v The State of Western Australia [2014] WASCA 236 Wimbridge v The State of Western Australia [2009] WASCA 196 -- 3 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 4 JUDGMENT OF THE COURT: 1 On 6 March 2026, the court made the following orders: 1. The application for an extension of time within which to appeal is granted. 2. The appeal is allowed. 3. The judgment of conviction entered by the trial judge on count 1 in indictment INS 69 of 2020 is set aside. 4. The judgment of conviction entered by the trial judge on count 2 in indictment INS 69 of 2020 stands. 5. There be a new trial of the appellant on count 1 in indictment INS 69 of 2020. 6. The appellant is remanded to a status conference before a judge of the general division of the Supreme Court at 9:00am on 2 April 2026. 2 We said that we would publish reasons for making those orders later. These are our reasons. Introduction The appeal against conviction 3 The appellant, his sister, Lynette Joy Taylor, and Ms Taylor's son, Raymond George Gittos, were jointly charged on indictment (INS 69 of 2020) with two offences, each of which was alleged to have been committed on Thursday, 27 February 2020. 4 Count 1 alleged that, at Merriwa or elsewhere in Western Australia, the accused murdered Ms Taylor's husband, Noel Joseph Taylor, contrary to s 279 of the Criminal Code (WA) (the Code). Count 2 alleged that, at Yanchep, the accused wilfully and unlawfully damaged property, namely a Holden Rodeo motor vehicle, by fire, contrary to s 444(1)(a) of the Code. 5 On 7 October 2021, after a trial before Hall J and a jury, the appellant and his two co-accused were found guilty of both counts. 6 The appellant appeals against his conviction on count 1 (the murder charge) only. -- 4 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 5 The respondent's case at the 2021 trial 7 The respondent's case at trial was that:1 (a) Ms Taylor wanted her husband killed; (b) the appellant and Mr Gittos, motivated by anger towards Mr Taylor who they believed had raped and abused Ms Taylor, agreed to kill him and had, before 27 February 2020, made threats to do so; (c) before, or at the latest, on 27 February 2020, the appellant, Ms Taylor, and Mr Gittos made a plan to kill Mr Taylor; (d) the plan to kill Mr Taylor involved the appellant and Mr Gittos ambushing Mr Taylor when he returned home from work and killing him. Mr Taylor's body was then to be placed in a vehicle and driven to a bush location where the vehicle with his body in it would be set alight and burnt; (e) on 27 February 2020, Mr Taylor left the Merriwa house for work as usual. He was expected to return that afternoon. Sometime in the morning, the appellant arrived at the house. Ms Taylor contacted Mr Gittos and told him to come to the house. Mr Gittos then caught a train to Butler, where Ms Taylor picked him up and brought him to the Merriwa house; (f) CCTV footage from a BP service station in Mindarie showed that between 2.40 pm and 2.50 pm, Ms Taylor purchased 44 litres of petrol and 24 litres of diesel, for which she paid cash. Ms Taylor put some of the petrol and diesel into containers and later took those containers to the bush location; (g) Mr Taylor returned home from work at about 4.45 pm. Shortly afterwards, Mr Taylor was set upon by either or both of the appellant and Mr Gittos in the rear patio area of the house. Mr Taylor was overpowered and then incapacitated by violent means, including by punching, beating or kicking him, and perhaps by striking him with a baseball bat. The respondent was unable to say exactly what happened to Mr Taylor after he returned home; 1 Taylor v The State of Western Australia [2023] WASCA 190 (Taylor) [17] - [24]. -- 5 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 6 (h) CCTV footage showed that, about 20 minutes after Mr Taylor arrived home, his silver Holden Rodeo utility motor vehicle was driven from the house by the appellant and Mr Gittos, with Mr Taylor in it. By then, Mr Taylor was either dead or incapacitated. Ms Taylor followed them, driving her Hyundai Kona SUV motor vehicle, with her elderly mother Valray Starr as a passenger, less than 30 seconds later. The evidence was insufficient to establish whether Mr Taylor was dead or alive when his vehicle was driven from his home; and (i) the appellant and Mr Gittos drove Mr Taylor's vehicle to an area of bushland off Old Yanchep Road in Yanchep. At the bush location, Mr Taylor's vehicle, along with his body, was set alight and burnt using the petrol and diesel purchased by Ms Taylor. Mr Taylor's body was burnt so badly that the forensic pathologist who later examined his remains was unable to determine the cause of death. 8 On the State's case in the 2021 trial, four possible scenarios were open on the evidence, which if accompanied with the requisite intention, made either or both of the appellant and Mr Gittos criminally responsible for Mr Taylor's murder under s 7(a) of the Code:2 1 Mr Starr assaulted Mr Taylor, resulting in injuries that were the sole cause of his death; or 2 Mr Gittos assaulted Mr Taylor, resulting in injuries that were the sole cause of his death; or 3 Each of Mr Starr and Mr Gittos inflicted injuries which, in each case, were by themselves sufficient to cause Mr Taylor's death; or 4 each of Mr Starr and Mr Gittos inflicted injuries which, in each case, were not by themselves sufficient to cause Mr Taylor's death, but which in combination were fatal. 9 At the time of the trial each of the four scenarios as to the guilt of the appellant and Mr Gittos were in accordance with the law, as it was then understood in this State, in respect of the operation of s 7(a) of the Code. This was that the phrase in s 7(a), that the 'person who actually does the act', extended to '[a]ll persons who actually do the act or one or more acts in the series which constitutes or constitute the offence'.3 2 Taylor [49] - [50]. 3 Taylor [59] referring to R v Wyles; Ex parte Attorney-General [1977] Qd R 169, 177. -- 6 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 7 Criminal responsibility under s 7(a) arose where there were several persons acting in concert, each doing some act which, in aggregate, would constitute the offence if done by one person.4 10 In the 2021 trial, the respondent did not rely upon s 8(1) of the Code as a source of criminal responsibility for any of the accused. The appeals of Ms Taylor and Mr Gittos and their retrial 11 In 2021, Ms Taylor appealed against her conviction for the offence of murder. Neither the appellant nor Mr Gittos had appealed against their convictions at the time this court heard the appeal against Ms Taylor's conviction on 11 January 2023. 12 The respondent's case against Ms Taylor on the charge of murder was put on a different basis to the case against the appellant and Mr Gittos. The respondent did not allege, as against Ms Taylor, that she was criminally responsible under s 7(a) of the Code. Instead, the respondent's case against Ms Taylor was that she did an act or acts for the purpose of enabling or aiding one or both of the appellant and Mr Gittos to intentionally kill Mr Taylor, or that she aided one or both of the appellant and Mr Gittos to intentionally kill Mr Taylor, and she was therefore a party to the offence under s 7(b) or s 7(c) of the Code. Alternatively, Ms Taylor was guilty of Mr Taylor's murder as a party to the offence under s 7(d) of the Code in that she counselled or procured one or both of the appellant and Mr Gittos to intentionally kill Mr Taylor. 13 In her appeal, Ms Taylor did not contend that the trial judge erred in his directions with respect to the first three scenarios set out at [8] above. Her appeal in grounds 2 and 3 focused solely upon the trial judge's directions in respect of the fourth scenario set out at [8] above. 14 By the time of the hearing of Ms Taylor's appeal, the majority of the High Court had held in O'Dea v The State of Western Australia5 that criminal responsibility for murder under s 7(a) of the Code could not be established by proof that the accused acted in concert with another and together with that other person inflicted injuries the combined effect of which was to cause death. In the appeal, Buss P and Mazza JA held there was a perceptible risk that the jury found the appellant and Mr Gittos guilty on the basis of the fourth scenario. 4 Taylor [59]. 5 O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315 (O'Dea) (Gordon, Edelman & Steward JJ). -- 7 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 8 Their Honours said that, if the jury relied on such a finding to find Ms Taylor criminally responsible under s 7(b), 7(c) or s 7(d), Ms Taylor's conviction was not open because s 7(a) had not been properly engaged.6 The court quashed the conviction and ordered a retrial. Reasons for the decision in Ms Taylor's appeal were published to the parties on 1 February 2024. 15 Mr Gittos appealed against his conviction for the offence of murder after Ms Taylor. His appeal was heard and allowed on 5 September 2024, on the basis of the approaches of the majority of the High Court in O'Dea, and of this court in Ms Taylor's appeal.7 Reasons for the decision in Mr Gittos' appeal were published to the parties on 12 September 2024. 16 Although the reasons for decision in both appeals were published to the parties, they were generally suppressed at that time to avoid prejudicing Ms Taylor and Mr Gittos' retrial. 17 Ms Taylor and Mr Gittos' retrial for murder commenced on 14 January 2025. At the conclusion of the retrial, on 24 January 2025, judgments of conviction were entered against Ms Taylor for the offence of murder and against Mr Gittos for the offence of accessory after the fact to murder. 18 Following the retrial of Ms Taylor and Mr Gittos, the suppression orders applying to the reasons for decision against conviction in the appeals were discharged by orders made on 28 January 2025 in CACR 193 of 2021 and CACR 52 of 2024. The appellant's ground of appeal 19 The appellant's sole ground of appeal raises the same question of law that resulted in successful appeals in Taylor and Gittos. 20 The respondent properly concedes that, on the approach of the majority of the High Court in O'Dea, and on the approaches taken by this court in Taylor and Gittos, the trial judge's erroneous direction constituted a wrong decision by his Honour on a question of law within the meaning of s 30(3)(b) of the Criminal Appeals Act 2004 (WA). We observe, as this court did in Gittos, that it was entirely proper for the trial judge to follow the decisions of this court and its predecessor, the Court of Criminal Appeal, which were binding on his Honour, when 6 Taylor [81] - [84] (Buss P & Mazza JA). And see [200] - [202] (Mitchell JA). 7 Gittos v The State of Western Australia [2024] WASCA 107 (Gittos) [24]. -- 8 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 9 giving the impugned direction in October 2021. However, as in Taylor and Gittos, this court is required to apply the subsequent decision of the majority in O'Dea when determining this appeal. 21 As in Gittos, the respondent also accepts that the 'proviso' in s 30(4) of the Criminal Appeals Act could not properly apply in the circumstances of this case. Application for extension of time 22 The last day for the appellant to lodge an appeal was 2 December 2021. The appellant lodged his application for leave to appeal against the conviction for murder on 12 August 2025, which constitutes a delay of approximately three years and nine months (and was six months after the retrial of Ms Taylor and Mr Gittos for murder had commenced). Extension of time - principles 23 Where there has been a lengthy delay in filing an application for leave to appeal, the court requires exceptional circumstances to be established before an extension of time will be granted, unless it can be shown that there will be a substantial miscarriage of justice if an extension is not granted.8 In Wimbridge v The State of Western Australia, Buss JA said that, in general, there are at least five factors to be considered in determining whether to grant an application for an extension of time to appeal against conviction:9 First, the nature and extent of the delay. Secondly, the reasons for the delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. 24 As this court recently remarked in Rahimi v The State of Western Australia, the need for an extension of time in a case such as the present is no mere formality. Any extension of time, particularly for a lengthy delay, must be justified by evidence which properly addresses the length of, and reasons for, the delay.10 8 Wilson v The State of Western Australia [2014] WASCA 236 [27] (Hall J) (Martin CJ & Mazza JA agreeing); applied in NFC v The State of Western Australia [2025] WASCA 181 [25] (Archer JA & Bond AJA) (Mazza JA agreeing). 9 Wimbridge v The State of Western Australia [2009] WASCA 196 [45] (Buss JA); applied in Wilson v The State of Western Australia [29] and VJS v The State of Western Australia [2017] WASCA 172 [246] (Mazza JA) (Martin CJ & Buss P agreeing). 10 Rahimi v The State of Western Australia [2024] WASCA 13 [26] (Quinlan CJ, Mazza JA & Lundberg J). -- 9 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 10 The reasons for the delay 25 In an affidavit sworn by the appellant in support of an extension of time he deposed that, following his sentencing on 11 November 2021 by the trial judge: (a) he had no further contact with his then solicitor and counsel, and that he was never told by them that he had any grounds of appeal; (b) in around mid-late 2024 he received a letter at the prison advising that he may be able to appeal, but he no longer had that letter so was unable to provide it to his present counsel; (c) following receipt of the letter he wanted to appeal but owing to his low level of education he had no idea what to do to commence an appeal so he applied for legal aid. It took some time for an answer to be received but he was granted legal aid for an opinion only as to the merits of an appeal on 19 November 2025;11 and (d) he was notified of the grant of legal aid in a letter from Legal Aid WA (Legal Aid) which was sent to him at the prison. 26 Given the paucity of information about the delay in instigating an appeal in the appellant's affidavit, and the fact that the retrial of Ms Taylor and Mr Gittos had occurred during the delay, the court directed the parties to provide further evidence to identify the sequence of events and reasons for the delay. In particular, the parties were directed to provide evidence as to: (a) what was the date of the letter said to have been sent to the prison in 'mid-late 2024'; (b) when did the appellant apply for legal aid (and, if there was a delay between (a) and (b), what was the reason for that delay); (c) what was the date of the letter granting aid; (d) when was the opinion provided (and, if there was a delay between (c) and (d), what was the reason for that delay); 11 The date referred to in the appellant's affidavit as the date of grant of legal aid should read 19 November 2024. -- 10 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 11 (e) when did the appellant instruct Mr Stephenson (and, if there was a delay between (d) and (e), what was the reason for that delay); and (f) if there was a delay between (e) and the date on which the appeal was commenced, what was the reason for that delay. 27 What then emerged from affidavits filed in response on behalf of the appellant and the respondent, and during questions put to counsel by the bench during the hearing for an extension of time, is that there is no evidence that the inordinate delay in lodging the appeal was attributable to the appellant himself in any material way. Instead, it appears that the inordinate delay came about through what can only be described as unexplained conduct by the respondent, Legal Aid, and perhaps some legal practitioners who all failed to make proper enquiries of each other. 28 The affidavit evidence and explanations proffered by counsel at the hearing of the application for leave to appeal and the appeal were as follows. 29 In an affidavit sworn by the appellant's counsel in this appeal on 5 March 2026, Mr Stephenson deposed: (a) he was unable to obtain a record from Legal Aid as to the date it received an application from the appellant to fund an appeal against conviction; (b) he received an initial letter from Legal Aid dated 19 November 2024 by email granting aid for an opinion as to merit only and to cover the drafting of any grounds of appeal if there was merit; (c) he sought to obtain a copy of the brief from the solicitor who acted for the appellant in the 2021 trial but was unable to locate him, because by November 2024 that solicitor had retired and closed their practice; (d) on 3 December 2024, he sent an email to the Legal Practice Board (the Board) asking to be provided with the present contact information of the appellant's instructor. In their response dated 4 December 2024, the Board advised that the appellant's instructor no longer had a practising certificate, and it had forwarded the email to the appellant's instructor's last -- 11 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 12 known email address with a request that he contact Mr Stephenson; (e) he never received any response from the appellant's instructor; (f) after making a further unsuccessful enquiry of a friend of the appellant's instructor, on 10 February 2025, he was able to book an official Webex call with the appellant for 14 February 2025; (g) during the Webex call on 14 February 2025, the appellant told him that a 'Mr Davies' had acted as counsel at the trial, and on the same day: (i) he contacted Mr Jonathan Davies who confirmed he had acted for the appellant; and (ii) he wrote to Mr Davies confirming that he had instructions to act for the appellant and asking that the papers relating to the matter be sent to him; (h) on 19 February 2025, Mr Stephenson received a Dropbox link from Mr Davies' office which he was able to download overnight but the material did not contain the sentencing remarks of the trial judge; (i) he was not able to obtain a copy of the sentencing transcript from this court until 13 May 2025; (j) due to other commitments, he was unable to provide a final written opinion as to the prospects of an appeal against both conviction and sentence until a letter dated 23 June 2025. He provided his advice by post and email to the appellant, care of Acacia Prison on that day. He also provided a copy of his opinion letter to Legal Aid on the same day and requested a grant of legal aid to conduct an appeal on behalf of the appellant against conviction and sentence; (k) Legal Aid granted aid for an appeal against conviction and sentence on 17 July 2025; and (l) he unsuccessfully attempted to lodge an appeal on 28 July 2025, but used the wrong form. He subsequently rectified the administrative error, and the appeal papers were resubmitted to the court. -- 12 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 13 30 In answer to questions from the bench when hearing the application to extend time, Mr Stephenson expanded on the matters in his affidavit as follows: (a) on receipt of the grant of legal aid for an opinion as to the merits of a possible appeal in November 2024, he had no knowledge of the appeals by Ms Taylor and Mr Gittos; (b) he did not find out there had been successful appeals by Ms Taylor and Mr Gittos against their convictions for the offence of murder until sometime after 3 March 2025 when he started reading the materials provided to him by Mr Davies; and (c) regrettably, at no time did he make an enquiry of the Office of the Director of Public Prosecution (DPP) of who the appellant's counsel had been at trial. 31 In an affidavit affirmed by Senior State Prosecutor, Ms Cook, on 5 March 2025, Ms Cook deposed that: (a) she had carriage of the appeals against conviction by Ms Taylor and Mr Gittos on behalf of the respondent; (b) after Ms Taylor's appeal against conviction for murder was allowed, and a new trial ordered on 1 February 2024, she wrote to the legal advisors of the appellant and Mr Gittos on 7 February 2024 (including Mr Davies), advising each of them about the outcome of Ms Taylor's appeal; (c) on 2 March 2024, she received an email from Mr Davies, who had appeared as counsel for the appellant at the 2021 trial, advising that he had alerted Legal Aid to the outcome of the appeals and had written to the appellant seeking his instructions as to whether he wished to institute an appeal; (d) on 5 June 2024, Mr Gittos commenced an appeal against conviction; and (e) immediately prior to the hearing of Mr Gittos' appeal on 5 September 2024, she was informed by the Deputy Director of the DPP that the information available to the respondent was that the appellant did not intend to lodge an appeal. 32 When questioned by the bench, Ms Cook was unable to advise the source of the information available to the Deputy Director that the -- 13 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 14 appellant did not intend to lodge an appeal. Ms Cook, however, informed the court that there was no suggestion that information came from the appellant or his former legal advisors. Ms Cook also conceded that it appeared that the respondent had not made any proper (direct) enquiries of the appellant as to whether he intended to appeal his conviction for murder prior to proceeding with the retrial of Ms Taylor and Mr Gittos. We note this to record a failing by the respondent, and not to suggest that Ms Cook herself was responsible for this failing. Respondent's position as to the application for an extension of time 33 The respondent did not oppose the making of an order granting the appellant an extension of time within which to lodge an appeal. 34 The respondent's position was that it would not be reasonable to oppose the application for an extension of time even though the likely outcome of the appeal will be that the appellant will be tried again for Mr Taylor's murder in a third trial, which will be an unnecessary duplication of the joint retrial of Ms Taylor and Mr Gittos in January 2025. The respondent says it could not properly be submitted in the circumstances that a refusal of the appellant's application for an extension of time would not result in a miscarriage of justice. Disposition - time to appeal should be extended and the appeal against conviction allowed 35 For the reasons given in Taylor and Gittos, it is clear that the appellant's conviction for murder should be set aside on grounds of an express error. 36 On the approach of the majority of the High Court in O'Dea, and on the approaches taken by this court in Taylor and Gittos, the trial judge's direction was erroneous and constituted a wrong decision by his Honour on a question of law within the meaning of s 30(3)(b) of the Criminal Appeals Act. We reiterate that it was entirely proper for the trial judge to follow the decisions of this court and its predecessor, which were binding on his Honour, when giving the impugned direction in October 2021. However, having regard to the subsequent decision of the majority in O'Dea, the direction was erroneous. 37 We are not persuaded that the error was immaterial and could not have deprived the appellant of a chance of acquittal that was fairly open -- 14 of 15 -- [2026] WASCA 59 JUDGMENT OF THE COURT Page 15 to him. The State properly accepts that the 'proviso' in s 30(4) of that Act cannot be applied in the circumstances. 38 Despite the inordinate delay in the lodging of the appellant's appeal against conviction, and the unsatisfactory consequences caused by that delay in not only requiring a third trial, but also the unnecessary use of the limited resources of this court in hearing a third appeal, we consider that an extension of time to appeal should be granted to avoid a miscarriage of justice, having regard to the following matters: (a) the failure to lodge an appeal before the retrial of the co-accused cannot be attributed to the appellant; (b) there is no evidence of a deliberate decision being made to delay lodging an appeal until after the retrial; (c) the respondent concedes that an extension of time should be granted and does not raise any issue of prejudice to the State if an extension of time to lodge an appeal is granted; and (d) the proposed ground of appeal has been made out. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NV Associate to Auxiliary Justice Smith 30 APRIL 2026 -- 15 of 15 --