Bradley William Derek Smith: How a note from judge Linda Petrusa prompted child sex conviction to be scrapped

A man found guilty of persistently having sex with a young teenage girl has had conviction quashed – and the case dropped – after a single word note from a judge to a jury sparked a successful appeal. The accused man, Bradley William Derek Smith, was first charged in 2020 with 17 different allegations against the same girl, said to have happened between to 2008 and 2011. The alleged offending began when the girl, who was the daughter of one of Mr Smith’s friends, was just 13. During a 2022 trial, Perth’s District Court was told that shortly after the girl started in Year 9, Smith – who was 27 at the time – dropped into her house on the way to work. He claimed he had forgotten his pen and as the girl walked away from him, her grabbed and kissed her. From then, the girl said his visits were frequent, as was their sexual contact. Prosecutors claimed that contact escalated from “dry humping” to full sex, after Mr Smith had moved in to live with the girl and her mother at another address. After that, the girl said they had sex up to three times a week for years. Mr Smith denied any sexual contact with the girl, and denied he had provided money, gifts and cigarettes. Following days of evidence, the jury found Mr Smith not guilty of more than a dozen specific counts of sexual penetration or indecent dealing. But they did find him guilty of persistently engaging in sexual conduct with a child under the age of 16 years. That led to a six-year prison term, with four years to serve. It also led to an appeal by Mr Smith, which was heard by WA’s highest court last year. During that appeal, it emerged that the hugely-experienced trial judge Linda Petrusa had received a note from the jury during the deliberations “asking whether sexual conduct included indecent dealing and sexual penetration”. Just before the jury came back into court to deliver their verdicts, Judge Petrusa told the trial counsel: “I simply wrote on the note, ‘Yes’, and sent it back to avoid the need for reconvening.” That one word answer was enough to concern the Court of Appeal enough that they ruled it a miscarriage of justice. “What is clear is that her Honour did receive that question while the jury were deliberating, and that she answered that question in a private communication with the jury, without informing either counsel or the appellant until after she had been informed that the jury had reached verdicts,” their judgment said. “It is also clear that the communication that took place between the trial judge and the jury was material to the jury’s determination of whether the appellant was guilty of the offence. “In our view, the learned trial judge’s failure to accord procedural fairness in this case did amount to a failure to observe the requirements of a criminal trial in Western Australia in a fundamental respect and that, on this basis, the appellant’s conviction cannot stand.” And, having quashed the guilty verdict, the Court of Appeal panel – led by Chief Justice Peter Quinlan – also ruled there should not be a retrial, despite also ruling it was not unreasonable for the jury to find Mr Smith guilty. “This case … gives rise to a number of unique difficulties,” the judgment said. “The fact that verdicts of acquittal were returned by the jury in relation to all of the specified conduct now present as unassailable barriers that stand in the way of a fair retrial.”