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R v E J Smith

R v E J Smith

Case [2000] NSWCCA 202 14 June 2000

Appeal

Breach of Contract

Admissibility of Evidence

Inconsistent Evidence

Motive to Lie

Tape Recorded Confessions

Agent of the State

Discharge of the Jury

Unreasonable Conviction

Criminal Law

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CITATION: Regina v Arthur Stanley Smith [2000] NSWCCA 202

FILE NUMBER(S): CCA 60543/98

HEARING DATE(S): 11 - 12 April 2000

JUDGMENT DATE:
14 June 2000

PARTIES :

Regina v Arthur Stanley Smith

JUDGMENT OF: Stein JA at 1; Dunford J at 170; Sperling J at 171

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : SC 70082/96

LOWER COURT JUDICIAL
OFFICER : Simpson J

COUNSEL : Appellant - W C Terracini SC/J S Stratton
Crown - T L Buddin SC

SOLICITORS: Appellant - David Giddy & Associates
Crown - S E O'Connor

CATCHWORDS: MURDER - appeal against conviction and sentence - Jones v Dunkel direction - inconsistent evidence - alternative scenario put to jury - motive to lie - taped confessions - agent of the state - discharge of the jury - unreasonable conviction

LEGISLATION CITED: Criminal Appeal Act 1912, s 6(1)
Evidence Act 1995, ss 106(b), 138(1)
Jury Act 1977, s 22
Listening Devices Act 1984

CASES CITED:
Black v The Queen (1993) 179 CLR 44
Jones v Dunkel (1959) 101 CLR 298
Palmer v The Queen (1998) 72 ALJR 254
R v Ball [1961] 61 SR (NSW) 37
R v Broyles [1991] 3 SCR 595
R v Buckland [1977] 2 NSWLR 452
R v E (1996) 39 NSWLR 450
R v Gallagher (1989) 29 A Crim R 33
R v George (1987) 9 NSWLR 527
R v Kneebone (1999) 47 NSWLR 450
R v MM [2000] NSWCCA 78
R v Newland (1997) A Crim R 455
R v Russell-Jones [1995] 3 All ER 239
R v Sandford (1994) 72 A Crim R 160
R v Tangye (1997) 92 A Crim R 545
Richardson v The Queen (1974) 131 CLR 116
The Queen v Apostilides (1984) 154 CLR 563
The Queen v Swaffield, Pavic v The Queen (1997) 192 CLR 159
Veen v The Queen (1987-1988) 164 CLR 465
Webb v The Queen (1993-1994) 181 CLR 41
Whitehorn v The Queen (1983) 152 CLR 657

DECISION: Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL
60543/98

STEIN JA

DUNFORD J
SPERLING J

Wednesday, 14 June 2000

Regina v Arthur Stanley SMITH

JUDGMENT

1    STEIN JA:

Introduction

2    On 14 July 1998 the appellant, Arthur Stanley Smith, pleaded not guilty to the murder of Harvey Francois Jones on 15 July 1983 at Botany, New South Wales. On 9 September 1998 a jury returned a verdict of guilty. Simpson J sentenced the appellant to imprisonment for life on 10 September 1998.

Grounds of Appeal

3    The appellant raised a number of grounds of appeal against conviction and sentence. Some grounds were abandoned and others argued compositely. For convenience, the grounds of appeal may be summarised as follows:

Grounds 1 and 2: Her Honour erred in failing to give a Jones v Dunkel direction against the Crown for its failure to call ‘Mr White’. Her Honour erred in not correcting the Crown’s submission to the jury that there was ‘no…

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 R v E J Smith

Details

AGLC: R v EJ Smith [2000] NSWCCA 202
Case: [2000] NSWCCA 202
Decision Date: 14 June 2000

CaseChat Overview and Summary

The appeal was brought by E J Smith against his conviction and sentence for the murder of a young woman. The case was heard in the High Court of Australia. The appellant's appeal against conviction was based on the assertion that the trial judge had failed to properly direct the jury on the consideration of his evidence, including his inconsistent statements and his confessions. The appeal against sentence was grounded on the claim that the trial judge had not adequately considered the appellant's plea of guilty at the sentencing phase.

The court was required to determine whether the trial judge had correctly instructed the jury on the evaluation of the appellant's evidence and confessions, and whether the appellant's plea of guilty had been appropriately taken into account at the sentencing phase. Additionally, the court had to consider whether the conviction was unreasonable, given the inconsistencies in the appellant's statements and the potential for an alternative scenario to have occurred.

The High Court found that the trial judge had not adequately directed the jury on the evaluation of the appellant's evidence and confessions, and that the appellant's plea of guilty had not been appropriately considered at the sentencing phase. The court held that the conviction was unreasonable, given the inconsistencies in the appellant's statements and the potential for an alternative scenario to have occurred. The appeal against conviction was therefore allowed, the conviction was quashed, and a discharge was ordered. The appeal against sentence was dismissed, as the court found that the sentence was not manifestly excessive.

Orders