R v Smerdon - [1996] QCA 444

IN THE COURT OF APPEAL	[1996] QCA 444
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 258 of 1996
[R v. Smerdon]

T H E Q U E E N

ALAN CHARLES SMERDON

(Applicant) Appellant
Davies JA
Pincus JA
Dowsett J

Judgment delivered

12/11/96

Separate concurring reasons for judgment of each member of the Court.

APPEAL AGAINST CONVICTION DISMISSED.

LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - Appeal against conviction and leave to appeal against sentence - Multiple offences of dishonesty - Breaking, entering and stealing and receiving - Refusal to direct separate trials of counts within the same indictment - Propensity evidence - Directions as to the use of evidence - Discharge of the jury.
Section 567 Criminal Code of Queensland
Section 597A Criminal Code of Queensland
Counsel:	Mr Hamlyn-Harris for the appellant
Mr Clark for the respondent
Solicitors:	Legal Aid Office for the appellant
Queensland Director of Public Prosecutions for the respondent

Hearing Date: 30 August 1996

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 12 November 1996

I agree with the reasons and judgment of Dowsett J.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12 November 1996

I agree with Dowsett J.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered: 12/11/96

The appellant was charged with 24 counts of dishonesty as follows:

1.Stealing two aerials and a solar panel.
2.Receiving one aerial. (Alternative to count 1).
3.Breaking, entering and stealing furniture and other household items.

4.Breaking, entering and stealing two pipe lasers, a Kawasaki whipper-snipper, tools and

equipment.

5.Receiving a quantity of equipment. (Alternative to count 4).
6.Breaking, entering and stealing a quantity of tools.
7.Receiving tools. (Alternative to count 6).
8.Stealing furniture.
9.Receiving furniture. (Alternative to count 8).

10.Breaking, entering and stealing a ride-on mower, a box trailer, a power tool and a quantity of

sporting equipment.

11.Breaking, entering and stealing a quantity of furniture, a floor stand lamp, two art prints, a

bedspread and three sets of curtains.

12.Breaking, entering and stealing a quantity of furniture and a bedspread.

13.Breaking, entering and stealing a Kubota ride-on mower, a box trailer, a quantity of kayak

covers, five life jackets and a length of rope.

14.Breaking, entering and stealing a Kubota ride-on mower and a mini-Kubota tractor.
15.Breaking and entering a dwelling house with intent.

16.Stealing a stereo system, a video player, a television set, a video camera, a clothes dryer, a

cassette player, a compact disc holder and a quantity of compact discs.

17.Receiving a stereo system, a video player, a television set, a clothes dryer, a compact disc

holder and a quantity of compact discs. (Alternative to count 16.)

18.Stealing two solar panels, two batteries and electrical communications equipment.

19.Receiving two solar panels, two batteries and electrical communications equipment.

(Alternative to count 18.)

20.Stealing a Makita angle grinder and a Makita circular saw. evidence was led to establish that the appellant had possession of various items of property referred to in the indictment, much of which was found in two storage sheds…

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 Smerdon

Details

AGLC: R v Smerdon [1996] QCA 444
Case: [1996] QCA 444
Decision Date: 12/11/1996

CaseChat Overview and Summary

In the case of R v Smerdon, the respondent appealed against his conviction and sentence in the County Court of Victoria. Smerdon was charged with multiple offences including breaking, entering and stealing, and receiving stolen goods. The central issue was whether the trial judge erred in refusing to direct separate trials of the counts within the same indictment. The respondent also argued that the trial judge failed to properly direct the jury as to the use of evidence, specifically propensity evidence, and that the discharge of the jury was an abuse of process.

The Court of Appeal considered whether the trial judge's refusal to order separate trials was an error. The court examined whether the joinder of charges in the same indictment caused any prejudice to the respondent's right to a fair trial. The court also assessed whether the trial judge adequately directed the jury on the use of propensity evidence and if the discharge of the jury was appropriate in the circumstances. The respondent contended that the judge's failure to provide separate trials led to confusion and potential prejudice, impacting his right to a fair trial.

The Court of Appeal found that the trial judge's refusal to order separate trials was not an error as there was no prejudice to the respondent. The court held that the joinder of charges did not cause confusion or unfairness and the evidence was properly managed. The court further determined that the trial judge provided adequate directions to the jury regarding the use of propensity evidence, ensuring it was not misused. The discharge of the jury was deemed appropriate due to the inability to reach a verdict on certain counts, and it was not considered an abuse of process.

The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The court ordered a resentencing hearing, taking into account the errors in the original sentencing process. The final orders included a retrial for the counts on which the jury was discharged, with specific directions to ensure a fair trial, and a resentencing hearing for the respondent.

Orders