R v Smith - [2008] QCA 406

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2008] QCA 406

PARTIES:

R
v
SMITH, Harold John
(appellant)

FILE NO/S:

CA No 187 of 2008
DC 37 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

16 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2008

JUDGES:

Holmes JA, White AJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Allow the appeal.1.

Quash the conviction and enter an acquittal in respect of count 1.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – the appellant was convicted after a trial of unlawfully entering premises with the intent to commit an indictable offence – the appellant entered the complainant’s yard but did not enter the house – the trial judge told the jury that “premises” includes the land surrounding a house – whether, under Chapter 39 of the Criminal Code 1899 (Qld), “premises” includes the land surrounding a house

Criminal Code 1899 (Qld), s 1, s 418, s 419, s 421, s 425, s 427

Alamdo Holdings Pty Ltd vAustralian Window Furnishings (NSW) Pty Ltd (2006) 13 BPR 25,045; [2006] NSWCA 224, cited
Buckle v Josephs (1983) 47 ALR 787, cited
Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; [1985] HCA 64, cited
Dilworth v Commissioner of Stamps [1899] AC 99, discussed
Favelle Mort Ltd v Murray (1976) 133 CLR 580; [1976] HCA 13, cited
MacFarlane v Burke, Ex parte Burke [1983] 2 Qd R 584, cited
Mowling v Justices of Hawthorn (1891) 17 VLR 150, cited
Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342, cited
The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67, cited
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12, applied

COUNSEL:

D R Kent for the appellant
M J Copley for the respondent

SOLICITORS:

Jeffrey Cuddihy and Joyce for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of White AJA and McMurdo J and the orders proposed by White AJA.

WHITE AJA: The appellant was charged that on or about 2 October 2006 at Gympie he “entered the premises of [the complainant] with the intent to commit an indictable offence in the premises.” He was further charged that on the same day he unlawfully assaulted the complainant and did him bodily harm whilst armed and in company. The jury returned verdicts of guilty to both charges on 19 June 2008 after a trial.

The Grounds of Appeal

The sole ground in the Notice of Appeal is that the verdict was “unsafe and unsatisfactory”.

At the commencement of the appeal hearing, Mr D…

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 Smith

Details

AGLC: R v Smith [2008] QCA 406
Case: [2008] QCA 406
Decision Date: 16 December 2008

CaseChat Overview and Summary

In the case of R v Smith, the appellant was convicted of unlawfully entering premises with intent to commit an indictable offence. The appellant did not dispute entering the complainant’s yard but argued that he did not enter the house itself. The trial judge instructed the jury that the term "premises" includes the land surrounding a house. The appellant contested this interpretation, arguing that it was an error in law that potentially influenced the jury’s verdict. The appeal was brought before the court to determine whether the trial judge’s direction to the jury was legally correct under Chapter 39 of the Criminal Code 1899 (Qld).

The primary issue before the court was whether the term "premises" under the relevant statute includes land surrounding a house. The court had to examine the legislative intent behind the term "premises" and determine if it extends to land adjacent to a dwelling. This required a close analysis of the statute and relevant case law to ascertain whether the trial judge’s direction was accurate and, if not, whether such error was material enough to warrant a quashing of the conviction.

The court found that the term "premises" as used in Chapter 39 of the Criminal Code 1899 (Qld) does not encompass the land surrounding a house. The term was interpreted narrowly to refer to the physical structure of the house itself. The trial judge’s direction to the jury was therefore erroneous as it expanded the definition beyond what the statute intended. Given that this misdirection was material to the conviction, the court concluded that it was necessary to allow the appeal, quash the conviction, and enter an acquittal on count 1.

Orders

Orders of the court

Allow the appeal.1.

Quash the conviction and enter an acquittal in respect of count 1.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Smith [2008] QCA 406
PARTIES:	R v SMITH, Harold John (appellant)
FILE NO/S:	CA No 187 of 2008 DC 37 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	16 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2008
JUDGES:	Holmes JA, White AJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Allow the appeal.1. Quash the conviction and enter an acquittal in respect of count 1.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – the appellant was convicted after a trial of unlawfully entering premises with the intent to commit an indictable offence – the appellant entered the complainant’s yard but did not enter the house – the trial judge told the jury that “premises” includes the land surrounding a house – whether, under Chapter 39 of the Criminal Code 1899 (Qld), “premises” includes the land surrounding a house Criminal Code 1899 (Qld), s 1, s 418, s 419, s 421, s 425, s 427 Alamdo Holdings Pty Ltd vAustralian Window Furnishings (NSW) Pty Ltd (2006) 13 BPR 25,045; [2006] NSWCA 224, cited Buckle v Josephs (1983) 47 ALR 787, cited Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; [1985] HCA 64, cited Dilworth v Commissioner of Stamps [1899] AC 99, discussed Favelle Mort Ltd v Murray (1976) 133 CLR 580; [1976] HCA 13, cited MacFarlane v Burke, Ex parte Burke [1983] 2 Qd R 584, cited Mowling v Justices of Hawthorn (1891) 17 VLR 150, cited Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342, cited The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67, cited YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12, applied
COUNSEL:	D R Kent for the appellant M J Copley for the respondent
SOLICITORS:	Jeffrey Cuddihy and Joyce for the appellant Director of Public Prosecutions (Queensland) for the respondent