R v Jacobs - [1997] QCA 111

IN THE COURT OF APPEAL	[1997] QCA 111
SUPREME COURT OF QUEENSLAND
C.A. No. 4 of 1997
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.

[R. v. Smith]

THE QUEEN

GEORGE SMITH

(Applicant) Appellant
Fitzgerald P.
Davies J.A.
McPherson J.A.

Judgment delivered 9 May 1997

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - manslaughter - directions to jury - evidence - appeal against conviction and sentence for manslaughter - appellant acquitted of murder of his mentally retarded daughter but convicted of her manslaughter - history of sexual and physical abuse of deceased by appellant - after initial denial appellant stated in record of interview that he disposed of the body after deceased bumped her head on appellant’s car - appellant gave evidence at trial that admission was fabrication - alleged misdirections - redirection to jury that if they accepted statements in record of interview as reliable regard as confession to manslaughter not murder - whether redirection based on fundamental error that statements amounted to admission to manslaughter and did not raise for jury’s consideration possibility that death was unintended and unforeseen - directions to jury on use of lies by accused not in strict accordance with Edwards v. R. (1993) 178 C.L.R. 193 - prosecution led evidence of drunken altercation between appellant and acquaintance - evidence highly prejudicial and probative value slight - whether admission of evidence caused substantial miscarriage of justice.
SENTENCE - appellant sentenced to 12 years’ imprisonment - jury may have convicted on basis of statements in police record of interview - whether sentence manifestly excessive.
Counsel:	Mr A Rafter for the applicant/appellant. Mrs L. Clare for the respondent.
Solicitors:	Legal Aid Office for the applicant/appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing Date:	23 April 1997.

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 9 May 1997

On 13 December 1996, the appellant was acquitted of the murder of his daughter, Kim Marie Gillespie Smith, but convicted of her manslaughter. On 20 December, he was sentenced to imprisonment for 12 years. He has appealed against his conviction and applied for leave to appeal against his sentence.

The appellant’s daughter was 21 when she died on 7 July 1995. She suffered from a congenital disease which involved significant mental retardation. The appellant had had regular sexual intercourse with her since she was aged 18, and he had kicked and slapped her on occasions. In December 1994, she went to live with another family named Eason. At the time, she was badly bruised, withdrawn and exhibiting regressive behaviour, and shortly afterwards was admitted to hospital, where she remained until 20 January 1995. On 4 January, after Mr Eason made an allegation of incest against the appellant, he and his wife, who was not the mother of his daughter, went to the hospital to which his daughter had been admitted and…

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.

Keep reading for free

Create a free CaseChat account to read R v Jacobs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1997] QCA 111
Decision Date: 9/05/1997

CaseChat Overview and Summary

The case of R v Jacobs was heard in the appellate court where the appellant, Jacobs, appealed his conviction and sentence for manslaughter. Jacobs was acquitted of the murder of his mentally retarded daughter but was convicted of manslaughter. The deceased had been subjected to a history of sexual and physical abuse by Jacobs. Following an initial denial, Jacobs made a statement in his record of interview indicating that he disposed of the body after the deceased bumped her head on his car. Jacobs later claimed that this admission was fabricated when he gave evidence at trial. The appeal focused on alleged misdirections given to the jury regarding the interpretation of Jacobs' statements in the record of interview and the use of lies by the accused. Additionally, the appeal questioned the admissibility of evidence of a drunken altercation between Jacobs and an acquaintance, which was deemed highly prejudicial but of slight probative value.

The legal issues before the court included whether the redirection to the jury that if they accepted the statements in the record of interview as reliable, they regarded them as a confession to manslaughter rather than murder, was based on a fundamental error. Specifically, the court had to determine if the redirection did not raise for the jury’s consideration the possibility that the death was unintended and unforeseen. Another issue was whether the directions to the jury on the use of lies by the accused were not in strict accordance with the principles established in Edwards v. R. (1993) 178 C.L.R. 193. Lastly, the court examined whether the admission of evidence of the drunken altercation between Jacobs and an acquaintance caused a substantial miscarriage of justice due to its high prejudicial effect and slight probative value.

The court found that the redirection to the jury did indeed contain a fundamental error in not allowing for the consideration that the death might have been unintended and unforeseen. It was determined that the jury should have been directed to consider the possibility of an unintended and unforeseen death based on Jacobs' statements. Regarding the directions on the use of lies by the accused, the court held that they were not in strict accordance with Edwards v. R., thus necessitating a new trial. The court also found that the evidence of the drunken altercation was highly prejudicial and its probative value was slight, leading to a conclusion that its admission caused a substantial miscarriage of justice. Consequently, the conviction and sentence were quashed, and a new trial was ordered.

Orders