R v Smith

[2007] QCA 447

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2007] QCA 447

PARTIES:

R
v
SMITH, Philip Gerard
(appellant)

FILE NO/S:

CA No 167 of 2007
SC No 10 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

19 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2007

JUDGES:

McMurdo P, Keane JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.  Appeal against conviction allowed
2.  Verdict of guilty of manslaughter set aside
3.  A retrial is ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of manslaughter – where the appellant contended that the prosecution's closing address to the jury was inflammatory and went beyond what was reasonable comment on the evidence – whether a miscarriage of justice resulted

Criminal Code 1899 (Qld), s 668E(1A)

R v Daye (2000) 115 ACrimR 80, considered
R v Freer & Weekes [2004] QCA 97; CA No 203 of 2003, CA No 206 of 2003, 6 April 2004, considered
R v Hay and Lindsay [1968] Qd R 459, considered
R v M [1991] 2 Qd R 68, followed
R v Macfie (No 2) (2004) 11 VR 215, considered
R v McCullough (1982) 6 ACrimR 274, considered
R v MRW (1999) 113 A Crim R 308, considered
R v Roulston (1976) 2 NZLR 644, considered
R v Teasdale (2004) 145 A Crim R 345, considered

COUNSEL:

J R Hunter for the appellant
M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  The appellant was convicted in the Townsville Supreme Court on 29 June 2007 of unlawfully killing Brett Matthew Leake at Townsville on or about 20 May 2005.  He appeals against his convictions on two grounds.  The first is that the conduct of the prosecutor was inflammatory and that the primary judge erred in refusing to discharge the jury because of it.  The second is that the primary judge gave wrong directions on accident.

The evidence

1. Before turning to the first ground of appeal, it is necessary to have an understanding of the relevant evidence led at trial of this tragic episode.  The altercation between the deceased and the appellant which preceded the death took place outside a Townsville nightclub called "The Bank" in the early hours of 20 May 2005.  The appellant was an off-duty security officer at The Bank.  Both the appellant and the deceased were patrons at The Bank that night.  John Wilson was working as a security officer.  There was a scuffle between patrons and Wilson asked the deceased to leave.  The evidence did not suggest that the deceased was involved in the scuffle but rather that Wilson mistakenly thought he…