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R v Smith

R v Smith

Case [2005] QCA 204 10 June 2005

Appeal

Misdirection and Non-direction

Unreasonable or Insupportable Verdict

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2005] QCA 204

PARTIES:

R
v
SMITH, Lori Dayon
(appellant)

FILE NO/S:

CA No 26 of 2005
SC No 367 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2005

JUDGES:

McPherson and Keane JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - where appellant had been convicted of burglary and murder after trial - where it had been alleged that the appellant had knowingly assisted another party in the commission of the murder or that the murder was a probable consequence of a common intention to rob or assault the deceased - where the appellant and the other party were tried separately - where other party had conviction quashed on appeal because the jury in that trial had not been instructed by the judge to consider the issue of self-defence under s 272 Criminal Code 1899 (Qld) - where different evidence had been adduced at each trial - whether there was any evidentiary basis for the issue of self-defence to be put to the jury in the appellant's trial

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY - where appellant had been convicted of burglary and murder after trial - where it had been alleged that the appellant had knowingly assisted another party in the commission of the murder or that the murder was a probable consequence of a common intention to rob or assault the deceased - where the appellant and the other party were tried separately - where other party had conviction quashed on appeal and was ordered to have a retrial - where appellant and the other party were originally tried before different juries with different evidence - whether order for retrial of appellant's alleged co‑offender required that there be a retrial ordered for the appellant if a miscarriage of justice was to be avoided

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant had been convicted of burglary and murder after trial - where it had been alleged that the appellant had knowingly assisted another party in the commission of the murder or that the murder was a probable consequence of a common intention to rob or assault the deceased - where reliance was placed at trial by the Crown on admissions made by appellant that had been recorded by an acquaintance during conversation - where…

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 [2005] QCA 204
Case: [2005] QCA 204
Decision Date: 10 June 2005

CaseChat Overview and Summary

In the case, the appellant was convicted of burglary and murder, following a trial. The appellant and another party were tried separately for their involvement in the commission of the murder. The other party's conviction was later quashed on appeal, as the jury had not been instructed to consider the issue of self-defence under section 272 of the Criminal Code 1899 (Qld). The appellant appealed his conviction on several grounds, including whether the trial judge misdirected the jury on the issue of self-defence and whether the evidence was sufficient to support the jury's conclusion that the appellant was involved in the murder or that it was a probable consequence of a common intention to rob or assault the deceased.

The court examined the evidence presented during the trial and whether the jury was adequately informed of the potential issues with relying on the evidence, particularly the admissions made by the appellant that were recorded by an acquaintance. The court also considered whether the trial judge's direction to the jury regarding the acquaintance's credibility and the appellant's possible drug use was sufficient to prevent a miscarriage of justice. The court found that the trial judge had adequately warned the jury of the potential dangers in relying on the evidence, and that it was open to the jury to safely conclude that the appellant was involved in the murder or that it was a probable consequence of a common intention to rob or assault the deceased.

The court dismissed the appeal against the conviction, stating that the evidence presented at trial was sufficient to support the jury's conclusion. The court also noted that the other party's conviction had been quashed on appeal and that a retrial was ordered for him. However, the court found that this did not require a retrial for the appellant, as the appellant and the other party were tried before different juries with different evidence. As such, the court did not find that a miscarriage of justice had occurred in the appellant's trial.

In conclusion, the appeal against the conviction was dismissed, and the appellant's conviction of burglary and murder stood. The court found that the trial judge had adequately warned the jury of the potential issues with the evidence, and that the evidence was sufficient to support the jury's conclusion. The court did not find that a miscarriage of justice had occurred in the appellant's trial, and no retrial was ordered.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Smith [2005] QCA 204

Most Recent Citation

R v Baggaley [2024] QCA 101

Cases citing this decision · 3 of 3 shown

R v Baggaley
[2024] QCA 101

…249, cited R v Darby (1982) 148 CLR 668; [1982] HCA 32, applied R v Smith [2006] 1 Qd R 540; [2005] QCA 204, cited Zhou v The Queen [2021] NSWCCA 278, cited COUNSEL: M J Copley KC, with A J Kimmins, for the appellant on 17 March 2022 The appellant appeared on his own behalf on 26 August 2022 R M O’Gorman KC, wit…
Minister for Home Affairs v Smith
[2019] FCAFC 137 Para 4

…she was sentenced to 10 years’ imprisonment to be served concurrently. She appealed against her conviction but the appeal was dismissed: R v Smith [2005] QCA 204.…
Abboud v The Commissioner of Police
[2019] QDC 273 Para 1

…cision of R v Armstrong [2005] QCA 116, R v Warren [2014] QCA 175 and the cases referred to therein of R v Daly [2004] 147 A Crim R 440 and R v Woods [2005] QCA 204.…

View all 3 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Andreassen
[2005] QCA 107 Para 1

…case, the evidence was not sufficient to raise the issue of self-defence, whether under s 271 or s 272 of the Criminal Code . [4]See R v Andreassen ; [2005] QCA 107; CA No 334 of 2004, 15 April 2005 at [27] - [30]; R v Muratovic [1967] Qd R 15 at 18; Van Den Hock v The Queen (1986) 161 CLR 158 at 161; cf R v Corr…
R v Corry
[2005] QCA 87 Para 1

…to be a deficiency in the summing up by the trial judge with respect to the matter of self defence under s 272(1) of the Criminal Code: see R v Corry [2005] QCA 87. It was not because of any inconsistency in the verdicts returned against each of Corry and the appellant Smith at their respective trials. As explai…
Ali v The Queen
[2005] HCA 8 Para 1

…as necessitated by the dangerous and persistent nature of the deceased's assault on Corry. [3]Cf Bannon v The Queen (1995) 185 CLR 1; Ali v The Queen [2005] HCA 8 at [11], [21]; (2005) 79 ALJR 662 at 665, 666.…
R v Sheppard
[2005] QCA 38 Para 1

…ilty should be entered in relation both to the murder and the conviction for burglary. [11] M v The Queen (1994) 181 CLR 487 at 493. See R v Sheppard [2005] QCA 38; CA No 93 and CA No 95 of 2004, 25 February 2005 at [34] - [36].…
R v Turmaine
[2004] QCA 75 Para 1

…confession was made, but also that it was reliable.[12] [12] R v Baker [2001] QCA 326; CA No 35 of 2001, 10 August 2001 at [22] - [23], R v Turmaine [2004] QCA 75; CA No 309 of 2003; 19 March 2004 at [26].…
R v Tripodi
[2002] SASC 420 Para 1

…the offence of conspiracy as such, but “arises in all crimes where the parties are alleged to have acted in concert with one another”. Cf also R v Tripodi (1961) 104 CLR 1, at 6-7.…
R v Lao and Nguyen
[2002] VSCA 157

…nguished R v Corry [2005] QCA 087; CA No 306 of 2004, 1 April 2005, distinguished R v Hart, Cuzzo & Smith [1980] Qd R 259, cited R v Lao and Nguyen [2002] VSCA 157; (2002) 5 VR 129, cited R v Sherrington & Kuchler [2001] QCA 105; CA No 239 and CA No 245 of 2000, 6 April 2001, cited The Queen v Darby (1982) 148 CLR…
R v Baker
[2001] QCA 326 Para 1

…t the jury's attention is drawn to the need to be satisfied, not only that the confession was made, but also that it was reliable.[12] [12] R v Baker [2001] QCA 326; CA No 35 of 2001, 10 August 2001 at [22] - [23], R v Turmaine [2004] QCA 75; CA No 309 of 2003; 19 March 2004 at [26].…
R v Sherrington & Kuchler
[2001] QCA 105 Para 1

…ously disclosing an intention of doing so or justifying an inference of agreement or conspiracy to do so: see, for example, R v Sherrington & Kuchler [2001] QCA 105, at §§11-13. Nevertheless, in the vast majority of cases some kind of prior agreement or understanding between them to commit the offence is a featur…
Mackenzie v The Queen
[1996] HCA 35

…d), s 7, s 8, s 10A(2), s 271, s 272 Dharmasena v The King [1951] AC 1, referred to M v The Queen (1994) 181 CLR 487, applied MacKenzie v The Queen (1996) 190 CLR 348, applied R v Beckett and MacIntosh [1966] Qd R 170, distinguished R v Corry [2005] QCA 087; CA No 306 of 2004, 1 April 2005, distinguished R v Hart, Cu…
Bannon v The Queen
[1995] HCA 27 Para 1

…y at the deceased with his knife was necessitated by the dangerous and persistent nature of the deceased's assault on Corry. [3]Cf Bannon v The Queen (1995) 185 CLR 1; Ali v The Queen [2005] HCA 8 at [11], [21]; (2005) 79 ALJR 662 at 665, 666.…
M v the Queen
[1994] HCA 63 Para 1

…not be a retrial and that verdicts of not guilty should be entered in relation both to the murder and the conviction for burglary. [11] M v The Queen (1994) 181 CLR 487 at 493. See R v Sheppard [2005] QCA 38; CA No 93 and CA No 95 of 2004, 25 February 2005 at [34] - [36].…
Van den Hoek v The Queen
[1986] HCA 76 Para 1

…[4]See R v Andreassen ; [2005] QCA 107; CA No 334 of 2004, 15 April 2005 at [27] - [30]; R v Muratovic [1967] Qd R 15 at 18; Van Den Hock v The Queen (1986) 161 CLR 158 at 161; cf R v Corry [2005] QCA 087; CA No 306 of 2004, 1 April 2005 at [29] - [31].…
R v Darby
[1982] HCA 32

…o and Nguyen [2002] VSCA 157; (2002) 5 VR 129, cited R v Sherrington & Kuchler [2001] QCA 105; CA No 239 and CA No 245 of 2000, 6 April 2001, cited The Queen v Darby (1982) 148 CLR 668, considered COUNSEL: B W Farr for appellant M J Copley for respondent SOLICITORS: Legal Aid Queensland for appellant Director of Public Pro…
Tripodi v the Queen
[1961] HCA 22 Para 1

…of conspiracy as such, but “arises in all crimes where the parties are alleged to have acted in concert with one another”. Cf also R v Tripodi (1961) 104 CLR 1, at 6-7.…
R v Corry
[2005] QCA 087 Para 1

…to consider also the issue of self-defence under s 272 of the Criminal Code , that is to say, self-defence against a provoked assault. [1] R v Corry [2005] QCA 087; CA No 306 of 2004, 1 April 2005.…
[1951] AC 1
[1951] AC 1 Para 1

…which their Honours rejected the old rule which had previously prevailed to the opposite effect. That rule had been applied in Dharmasena v The King [1951] AC 1, where the Privy Council held that acquittal of a co-accused on a charge of conspiracy to murder necessarily required acquittal of the appellant indi…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Smith [2005] QCA 204
PARTIES:	R v SMITH, Lori Dayon (appellant)
FILE NO/S:	CA No 26 of 2005 SC No 367 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2005
JUDGES:	McPherson and Keane JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - where appellant had been convicted of burglary and murder after trial - where it had been alleged that the appellant had knowingly assisted another party in the commission of the murder or that the murder was a probable consequence of a common intention to rob or assault the deceased - where the appellant and the other party were tried separately - where other party had conviction quashed on appeal because the jury in that trial had not been instructed by the judge to consider the issue of self-defence under s 272 Criminal Code 1899 (Qld) - where different evidence had been adduced at each trial - whether there was any evidentiary basis for the issue of self-defence to be put to the jury in the appellant's trial CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY - where appellant had been convicted of burglary and murder after trial - where it had been alleged that the appellant had knowingly assisted another party in the commission of the murder or that the murder was a probable consequence of a common intention to rob or assault the deceased - where the appellant and the other party were tried separately - where other party had conviction quashed on appeal and was ordered to have a retrial - where appellant and the other party were originally tried before different juries with different evidence - whether order for retrial of appellant's alleged co‑offender required that there be a retrial ordered for the appellant if a miscarriage of justice was to be avoided CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant had been convicted of burglary and murder after trial - where it had been alleged that the appellant had knowingly assisted another party in the commission of the murder or that the murder was a probable consequence of a common intention to rob or assault the deceased - where reliance was placed at trial by the Crown on admissions made by appellant that had been recorded by an acquaintance during conversation - where…