R v Smart

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.