Lewis-Smith v The Queen - [2011] VSCA 450

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0186

DAVID LEWIS-SMITH
	Applicant
v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 December 2011
DATE OF JUDGMENT	8 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 450
JUDGMENT APPEALED FROM	DPP (Vic) v Lewis-Smith (Unreported, County Court of Victoria, Judge Pullen, 6 August 2010 (date of verdict), 10 December 2010 (date of sentence))

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CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applicant assaulted victim at children’s football camp – Convicted of intentionally causing serious injury – Trial judge directed jury that it could not consider statutory alternatives of intentionally causing injury and recklessly causing injury if it was satisfied that applicant had caused victim serious injury – Exception taken – Trial judge redirected jury in general terms regarding process to be followed when considering alternative verdicts – Crown conceded on appeal that earlier direction was erroneous – Whether redirection adequately corrected earlier error – Leave to appeal against conviction granted and appeal allowed – Redirection was not sufficient to correct error – Applicant’s conviction set aside and judgment of conviction of intentionally causing injury entered pursuant to s 277(1)(c) of Criminal Procedure Act 2009 – Applicant sentenced to two years’ imprisonment with non‑parole period of 16 months – R v Moon [1969] 3 All ER 803 – Spies v The Queen (2000) 201 CLR 603.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Croucher SC	Doogue & O’Brien
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

WILLIAMS AJA:

On 6 August 2010, David Lewis-Smith, then a 54-year-old father of (at least) two children, was convicted after a trial in the County Court before her Honour Judge Pullen and a jury of one count of intentionally causing serious injury. On 10 December 2010, Judge Pullen sentenced Lewis‑Smith to a term of imprisonment of four years with a non-parole period of two years and six months. Lewis‑Smith now seeks leave to appeal both his conviction and the sentence imposed upon him.

Lewis‑Smith and his two young sons attended a children’s football camp at the end of the 2007 football season. At that camp, one of Lewis‑Smith’s sons was reproved by Wayne Naughton, the father of another child, for what Naughton perceived to be selfish and unseemly behaviour with respect to a trampoline upon which other children were playing or trying to play. The reproof included physically holding the boy as he walked him towards his father, the applicant, to be further reprimanded.

Upon seeing his son being ‘manhandled’ by Naughton, Lewis-Smith attacked Naughton ― punching him to the right side of his face with a clenched fist causing him to fall to the ground. He then punched Naughton to the left side of his face and continued punching him while he was on the ground. Lewis‑Smith was ultimately restrained and eventually charged with intentionally causing serious injury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lewis-Smith v The Queen

Details

AGLC: Lewis-Smith v The Queen [2011] VSCA 450
Case: [2011] VSCA 450
Decision Date: 8 December 2011

CaseChat Overview and Summary

In Lewis-Smith v The Queen, the applicant was convicted of intentionally causing serious injury to a victim at a children’s football camp. The applicant sought leave to appeal against both the conviction and the sentence. The High Court of Australia was tasked with determining whether the trial judge's redirection to the jury adequately corrected an earlier erroneous direction and whether the applicant's conviction should be set aside.

The central legal issue before the court was whether the trial judge’s redirection to the jury was sufficient to rectify the earlier misdirection concerning the consideration of alternative verdicts. The trial judge had initially directed the jury that they could not consider statutory alternatives if they were satisfied that the applicant had caused serious injury, which was an incorrect statement of the law. After an exception was taken, the trial judge provided a general redirection regarding the process for considering alternative verdicts. The Crown conceded on appeal that the initial direction was erroneous, but it was argued that the redirection sufficiently corrected the error.

The court found that the redirection was not sufficient to correct the earlier error. The court held that the trial judge’s initial direction had a substantial and incriminating effect on the jury's consideration of the charges. The redirection did not specifically address the error or guide the jury to reconsider the charges in light of the correct legal principles. Consequently, the court granted leave to appeal against the conviction and allowed the appeal. The applicant's conviction for intentionally causing serious injury was set aside, and a judgment of conviction for intentionally causing injury was entered. The applicant was sentenced to two years’ imprisonment with a non-parole period of 16 months.

Orders