R v. Smith - [2007] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2007] QCA 253

PARTIES:

R
v
SMITH, Cleeve Raymond
(appellant/applicant)

FILE NO/S:

CA No 56 of 2007
DC No 91 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

3 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2007

JUDGES:

Williams and Jerrard JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where jury saw appellant in prison clothes prior to commencement of trial – where various newspaper articles were published during the trial which the appellant contends adversely affected his case – where appellant contends that the learned judge's summing up to the jury was unbalanced – where the case against the appellant was largely circumstantial – whether verdict unsafe and unsatisfactory and contrary to law

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where learned judge failed to use phrase "presumption of innocence" in summing up, though did make reference to the crown's need to prove the appellant's guilt – where learned judge ruled against the appellant's counsel's no case submission at the close of the prosecution case – whether the learned trial judge erred

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant sentenced to 27 months imprisonment with parole eligibility on 1 February 2008 – where effective sentence was one of 54 months with eligibility for parole at 25 months, as 405 days in custody was not classified as pre-sentence custody – where a significant amount of preplanning was associated with the offence – where significant damage was caused – where no immediate risk to human life occasioned by the fire – where risk of fire spreading minimal – where learned judge considered the appellant's medical conditions – whether sentence manifestly excessive

R v Johnson [2007] QCA 249; CA No 94 of 2007, 3 August 2007, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
D R MacKenzie for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The appellant was convicted after a trial of the offence of arson and sentenced on 21 February 2007 to 27 months imprisonment with an eligibility for parole on 1 February 2008. It should be noted that effectively the sentence imposed was 54 months imprisonment with eligibility for parole at 25 months. That was because the appellant…

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 [2007] QCA 253
Case: [2007] QCA 253
Decision Date: 3 August 2007

CaseChat Overview and Summary

In this appeal, Smith sought to overturn his conviction for arson, alleging that the trial process was compromised in several respects. The appellant contended that the jury saw him in prison clothing before the trial, which prejudiced their view of him. Additionally, he claimed that newspaper articles published during the trial unfairly influenced their decision. Furthermore, Smith argued that the judge's summing up to the jury was unbalanced, particularly because the case against him was largely circumstantial. He sought a new trial on the grounds that the verdict was unsafe and unsatisfactory.

The court considered whether the trial judge's summing up was adequate, particularly since the judge did not explicitly state the presumption of innocence, although the need for the crown to prove guilt was acknowledged. The court also examined whether the trial judge erred in rejecting the appellant's no case submission. The court found that the summing up was not deficient, and the rejection of the submission was justified given the evidence. The court concluded that the verdict was safe and satisfactory, and thus the appeal against the conviction was dismissed.

The appellant also sought to appeal against the severity of his sentence, arguing it was manifestly excessive. He had been sentenced to 27 months imprisonment with parole eligibility on 1 February 2008. However, the effective sentence was 54 months, as the time spent in custody prior to sentencing was not counted as pre-sentence custody. The court considered the significant preplanning and damage caused by the offence, along with the appellant's medical conditions, but ultimately found the sentence appropriate. The application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

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

Full text does not contain this section.

CITATION:	R v Smith [2007] QCA 253
PARTIES:	R v SMITH, Cleeve Raymond (appellant/applicant)
FILE NO/S:	CA No 56 of 2007 DC No 91 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	3 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2007
JUDGES:	Williams and Jerrard JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where jury saw appellant in prison clothes prior to commencement of trial – where various newspaper articles were published during the trial which the appellant contends adversely affected his case – where appellant contends that the learned judge's summing up to the jury was unbalanced – where the case against the appellant was largely circumstantial – whether verdict unsafe and unsatisfactory and contrary to law CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where learned judge failed to use phrase "presumption of innocence" in summing up, though did make reference to the crown's need to prove the appellant's guilt – where learned judge ruled against the appellant's counsel's no case submission at the close of the prosecution case – whether the learned trial judge erred CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant sentenced to 27 months imprisonment with parole eligibility on 1 February 2008 – where effective sentence was one of 54 months with eligibility for parole at 25 months, as 405 days in custody was not classified as pre-sentence custody – where a significant amount of preplanning was associated with the offence – where significant damage was caused – where no immediate risk to human life occasioned by the fire – where risk of fire spreading minimal – where learned judge considered the appellant's medical conditions – whether sentence manifestly excessive R v Johnson [2007] QCA 249; CA No 94 of 2007, 3 August 2007, cited
COUNSEL:	The appellant/applicant appeared on his own behalf D R MacKenzie for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent