R v Smit

Case [2004] NSWCCA 409 3 December 2004

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Smit & Ors [2004] NSWCCA 409

FILE NUMBER(S):
2004/1831
2004/1766
2004/2388

HEARING DATE(S): 13/10/04

JUDGMENT DATE: 03/12/2004

PARTIES:
Crown - Respondent
Steven Charles Smit - Appellant
Shiree Anne Smit - Appellant
Donna Clare Tarrant - Appellant

JUDGMENT OF: Grove J James J Hoeben J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70217/02
70218/02
70058/02

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL:
D Arnott - Crown
A Haesler SC - Appellant Shiree Smith
C B Craigie SC - Appellant Steven Smith
S Odgers SC - Appellant Donna Tarrant

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Crown
Ferns Aubrey Mitchell - Appellant Shiree Smith
North & Badgery - Appellant Steven Smith
C Hunter - Appellant Donna Tarrant

CATCHWORDS:
CRIMINAL LAW: murder convictions - jury question as to manslaughter - were particular accused aware of intention of person who did act to kill or cause grievous bodily harm - need for Stokes v Gifford direction - were separate trials required - incorrect submission by Crown - direction required - false alibi - consciousness of guilt.

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
In each appeal, appeal allowed, conviction and sentence quashed and a new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1831
2004/1766
2004/2388
GROVE J
JAMES J
HOEBEN J
Friday, 3 December, 2004

REGINA v STEVEN CHARLES SMIT
REGINA v SHIREE ANNE SMIT
REGINA v DONNA CLARE TARRANT

Judgment

GROVE J: Steven and Shiree Smit and Donna Tarrant were jointly indicted on a charge that on or about 29 August 2001 at Katoomba they murdered Craig Collins. Following trial before Hulme J and a jury they were convicted and sentenced. Each appeals against conviction. None of them seeks leave to appeal against sentence.
At approximately 9 am on Thursday 30 August 2001 Katoomba Police received the first of some anonymous telephone calls, as a result of which they attended at 2/80 Camp Street. They discovered the naked body of Mr Collins wrapped in two blankets. Within the blankets were also wrapped two bloodstained jumpers and a cricket bat. There were large amounts of blood and blood staining throughout the flat.
On a lounge chair were found three knives. Another knife was found under a lounge chair and still another on a bed. Some of these knives and other items within the flat were stained with blood identified as that of the deceased and his DNA was detected on a number of items. Dr Ellis, a pathologist who performed the post mortem, testified that death was principally caused by a blow to the throat which fractured the larynx, caused swelling which in turn deprived the victim of oxygen. There were twelve stab wounds, two of which could have contributed to the death, of which one, a penetrating wound to the lung, certainly did. The body also displayed numerous signs of trauma. There were located fourteen areas of bruising, fifty eight abrasions, ten lacerations and eight scratches. There were…

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 Smit

Details

AGLC: R v Smit [2004] NSWCCA 409
Case: [2004] NSWCCA 409
Decision Date: 3 December 2004

CaseChat Overview and Summary

The case of R v Smit involved multiple defendants who were convicted of murder. The defendants appealed against their convictions, arguing that the jury should have been directed to consider the possibility of manslaughter. The High Court of Australia was tasked with determining whether the trial judge correctly handled the jury direction and whether the defendants' separate trials were necessary. The court also examined whether the Crown's submissions were correct and if the direction on false alibi and consciousness of guilt was appropriate.

The legal issues before the court included whether the trial judge should have directed the jury to consider manslaughter as an alternative to murder, given the possibility that the defendants were unaware of the killer's intent. The court also considered whether the separate trials of the defendants were justified, and if the Crown's submissions on the matter were accurate. Furthermore, the court had to assess whether the direction on false alibi and consciousness of guilt was adequate and whether it appropriately addressed the defendants' state of mind.

The court found that the trial judge should have directed the jury to consider manslaughter, as there was a possibility that the defendants were not aware of the killer's intent to cause death or grievous bodily harm. The court held that separate trials were not required, as the defendants were jointly charged and tried. The court also determined that the Crown's submissions were incorrect and that the direction on false alibi and consciousness of guilt was not sufficient. The court held that the direction should have included the possibility that the defendants were unaware of the killer's intent.

The High Court of Australia quashed the murder convictions and ordered a retrial, with appropriate jury directions. The court held that the jury should have been directed to consider manslaughter as an alternative to murder, and that the direction on false alibi and consciousness of guilt was inadequate. The court's decision emphasised the importance of ensuring that the jury is properly directed on all possible charges and the need for accurate submissions from the Crown.

Orders