R v Smart - [2010] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 658 of 2008

THE QUEEN
	v
KEITH SMART

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JUDGES	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 February 2010
DATE OF JUDGMENT	4 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 33
JUDGMENT APPEALED FROM	[2008] VSC 155 (Lasry J)

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Criminal law – Conviction – Manslaughter – Circumstantial evidence – Whether prosecutor and the judge below contravened principles stated in R v Thompson [2008] VSCA 144 – Alleged post-interview revelation – Recent invention – Whether rule in Browne v Dunn (1893) 6R 67 breached by prosecutor and/or applicant’s counsel – Alleged lies and other post-offence conduct – Consciousness of guilt – Of what offence – Whether jury should have had reasonable doubt that applicant was the killer – Application refused.

Sentence – Whether judge mischaracterised offence as a serious example of unlawful and dangerous act manslaughter – No specific sentencing error in sentencing remarks – Application refused.

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Appearances:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Galbally & O’Bryan

WARREN CJ:

For the reasons stated by Ashley JA, I would refuse the applications for leave to appeal conviction and sentence. I also agree with the remarks of Nettle JA upon consciousness of guilt and ground 2. This is a case which amply demonstrates the value and utility of the Victorian Criminal Charge Book[1] in the conduct and management of criminal trials. Whilst prepared as a guide or aide to judges, not to be followed slavishly but appropriately applied and adapted, the text is a guide that generally enables judges to reduce the risk of appellable error.
[1]Judicial College of Victoria, Victorian Criminal Charge Book (4.7.2.3) ( JA:
1. I have had the advantage of reading in draft the reasons for judgment of Ashley JA and, save for one matter, there is nothing which I can usefully add. I agree with his Honour, substantially for the reasons he gives, that the applications for leave to appeal against conviction and sentence should be refused.
1. The one matter on which I wish to say something further concerns Ground 2 and, more precisely, the applicant’s contention that the judge erred in not directing the jury specifically that, when considering the lies and other post-offence conduct on which the Crown relied as evidence of consciousness of guilt of the offence of manslaughter, they should consider that one possible explanation for the lies and other conduct was that the applicant was conscious of his guilt of the lesser offence of assist offender and by his lies and other conduct sought to distance himself from his complicity in that offence.
1. I am persuaded by the reasons given by Ashley JA that, in the circumstances of this case, the directions which the judge gave were sufficient to bring that possibility home to the minds of the jury. But, with respect, I think it would have been preferable…

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 Smart

Details

AGLC: R v Smart [2010] VSCA 33
Case: [2010] VSCA 33
Decision Date: 4 March 2010

CaseChat Overview and Summary

The applicant, Smart, sought leave to appeal against his conviction for manslaughter and his sentence. The applicant was convicted based on circumstantial evidence following a trial in the Supreme Court of Victoria. The applicant claimed that his conviction was unsafe and unreliable because the prosecutor and the trial judge failed to observe the principles stated in R v Thompson, the alleged post-interview revelation was a recent invention, and the rule in Browne v Dunn was breached. The applicant also argued that his sentence was excessive because the trial judge mischaracterised the offence as a serious example of unlawful and dangerous act manslaughter.

The court examined whether the prosecutor and the trial judge contravened the principles in R v Thompson. The court found that the prosecutor did not contravene these principles as the evidence was not recent invention. The court further found that the rule in Browne v Dunn was not breached as the evidence of alleged lies and other post-offence conduct did not give rise to a reasonable doubt as to the applicant’s identity as the killer. The court held that the jury was properly directed as to the need to consider the possibility that the evidence of consciousness of guilt pointed to some other person as the killer. The court also found that there was no specific sentencing error in the sentencing remarks of the trial judge.

The application for leave to appeal was refused. The court found that the trial judge did not mischaracterise the offence as a serious example of unlawful and dangerous act manslaughter, and that the sentence was not excessive. The court held that the applicant had not made out a case for leave to appeal.

Orders