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R v Smith

R v Smith

Case [2005] QCA 1 4 February 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2005] QCA 1

PARTIES:

R
v
SMITH, Daniel Bernard
(appellant/applicant)

FILE NO/S:

CA No 240 of 2004
SC No 14 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED ON:

4 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2004

JUDGES:

Davies JA and Fryberg and Mullins JJ
Separate reasons for judgment of each member of the Court, Davies JA and Mullins J concurring as to the orders made, Fryberg J dissenting in part

ORDER:

1.    Dismiss the appeal against conviction
2.    Grant the application for leave to appeal against       sentence and allow the appeal against sentence
3.    Set aside the sentence imposed by the learned       sentencing judge
4.    In lieu, sentence the appellant to eight years       imprisonment
5.    Declare that a period of 52 days between 24 December       2002 and 13 February 2003 and the night of 20 - 21       July 2004, a total of 53 days, to be time served under       the sentence

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - OTHER CASES- where the appellant was convicted of manslaughter for supplying a rifle and ammunition to another person who then used them to murder two victims - where the appellant submitted that the learned trial judge erred in law when he ruled that the defence of s 25 CriminalCode was not open to be left to the jury on a charge of murder or manslaughter - whether the opening words of s 25 exclude the operation of the defence in circumstances where s 31 Criminal Code is enlivened

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - GENERALLY - where the appellant submitted that the learned trial judge failed to direct the jury adequately as to the defence of compulsion in respect of the manslaughter charge - where there was an alleged failure to mention all the factors from which compulsion could be inferred - whether there was a misdirection by the learned trial judge that resulted in a miscarriage of justice

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the appellant was sentenced to 10 years imprisonment - where the appellant was 20 years old at the time of the offences and had no prior criminal history - where there was evidence that the appellant was in the category of borderline intellectual disability - whether the sentence imposed was manifestly excessive in all the circumstances

Criminal Code (Qld), s 25, s 31(1)

Callaghan v The Queen (1952) 87 CLR 115, cited
R v Jervis [1993] 1…

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 1
Case: [2005] QCA 1
Decision Date: 4 February 2005

CaseChat Overview and Summary

The case of R v Smith involved the appellant, who was convicted of manslaughter for supplying a rifle and ammunition to another person who subsequently used them to murder two victims. The appellant appealed against his conviction and sentence, arguing various grounds, including errors in the trial judge's direction to the jury regarding the defence of compulsion and the applicability of the defence of s 25 of the Criminal Code in relation to the charge of manslaughter. The appeal also contested the severity of the 10-year imprisonment sentence, considering the appellant's age, lack of prior criminal history, and borderline intellectual disability.

The court was required to determine whether the trial judge erred in law when ruling that the defence of s 25 of the Criminal Code was not available to be left to the jury in the context of the charge of manslaughter. Additionally, the court had to assess if there was a misdirection by the trial judge regarding the defence of compulsion, specifically whether the judge failed to adequately direct the jury on all factors from which compulsion could be inferred. The court also needed to consider whether the sentence imposed was manifestly excessive given the appellant's age, lack of prior criminal history, and evidence of borderline intellectual disability.

The court dismissed the appeal against the conviction, finding no error in the trial judge's directions regarding the defence of s 25. However, it granted the application for leave to appeal against the sentence and allowed the appeal on the ground that the sentence was manifestly excessive. The court held that a sentence of eight years imprisonment, with a declaration that 53 days already served should count towards the sentence, was more appropriate. Consequently, the court set aside the original sentence and imposed a new sentence of eight years imprisonment, with 53 days to be counted as time served.

Orders

Orders of the court

1. Dismiss the appeal against conviction

2. Grant the application for leave to appeal against sentence and allow the appeal against sentence

3. Set aside the sentence imposed by the learned sentencing judge

4. In lieu, sentence the appellant to eight years imprisonment

5. Declare that a period of 52 days between 24 December 2002 and 13 February 2003 and the night of 20 - 21 July 2004, a total of 53 days, to be time served under the sentence

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 1

Most Recent Citation

R v Palmer [2005] QCA 2

Cases citing this decision · 11 of 11 shown

R v Lentini
[2018] QCA 299

…A 305, cited R v Brown (1986) 43 SASR 33, cited R v Smith [2005] 2 Qd R 69; [2005] QCA 1 , cited R v Taiapa (2008) 186 A Crim R 252; [2008] QCA 204 , cited R v Turner [1975] QB 834, cited Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53, cited COUNSEL: S C Holt QC, with A J Kimmins, for the appellant/applica…
Egitmen v The State of Western Australia
[2016] WASCA 214 Para 4

…[139]. [69] Quartermaine [46] ‑ [47]. See also Smith [12] and, in relation to the defence in s 31(1)(d) of the Criminal Code (Qld), R v Smith [2005] QCA 1; [2005] 2 Qd R 69 [32] ‑ [34] and Taiapa [22].…
R v WAW
[2013] QCA 22 Para 1

…year term coupled with eligibility for parole at three years. He relied particularly on R v Welham & Martin, R v Schuurs [2000] QCA 278 and R v Smith [2005] QCA 1.…
Smith v The State of Western Australia
[2010] WASCA 205 Para 7

…to exclude the operation of s 25 where the act or omission and what is said to be the compulsion require the application of s 31(3) or (4): R v Smith [2005] QCA 1; [2005] 2 Qd R 69 [20] ‑ [23].…
R v Lacey; ex parte Attorney-General
[2009] QCA 274

…cited R v Alibasic and Salajdjiza; ex parte Cth DPP [2005] QCA 108, cited R v AS; ex parte A-G (Qld) [2004] QCA 259, cited R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Beevers [1942] St R Qd 230, considered R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, cited R v Challinger [1989] 2 Qd R 352;…
Johnson v The State of Western Australia
[2009] WASCA 71 Para 8

…to exclude the operation of s 25 where the act or omission and what is said to be the compulsion require the application of s 31(3) or (4): R v Smith [2005] QCA 1; [2005] 2 Qd R 69 [20] ‑ [23]. Section 31 (3) and (4) have been replaced by the new s 32 ('Duress'). Although it is not necessary to express a conclu…
R v Taiapa
[2008] QCA 204

…) 96 Cr App R 412, cited R v Palazoff (1986) 43 SASR 99, cited R v Pickard [1959] Qd R 475, distinguished R v Smith [2005] 2 Qd R 69; [2005] QCA 1, applied R v Z [2005] 2 AC 467, cited Van den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, cited COUNSEL: H A Walters for the appellant M J Copley for the res…
Quartermaine v The State of Western Australia
[2008] WASCA 22 Para 26

…The appellant also relied upon the decision of the Queensland Court of Appeal in R v Smith [2005] QCA 1; [2005] 2 Qd R 69. That decision involved s 31(1)(c) (the Queensland equivalent of s 31(3) of the WA Code) as well as s 31(1)(d) (analogous to s 31(4)). The directions as to s 31(1)(c) closely resembled those…
R v. Finlay
[2007] QCA 400 Para 1

…ed the view that he had, in an attempt to achieve by parity with a co-offender’s sentence, set it too low.[35] [34][2000] QCA 278. [35] R v Smith [2005] QCA 1, per Fryberg J at [55].…
R v Oblach
[2005] NSWCCA 440

…Crim R 92 R v Hawes (1994) 35 NSWLR 294 R v Katarzynski [2002] NSWSC 613 R v McCullough (1982) 6 A Crim R 274 R v Smith [2005] QCA 1 Stingel v The Queen (1990) 171 CLR 312 Taikato v The Queen (1996) 186 CLR 454 Viro v The Queen (1978) 141 CLR 88 Zecevic v DPP (1987) 162 CLR 645 PARTIES: Renato Oblach (Appellant…
R v Palmer
[2005] QCA 2

…[1][2005] QCA 1; CA No 240 of 2004, 4 February 2005.…

View all 11 citing cases →

Cases cited in this decision · 3 of 3 shown

R v Palmer
[2005] QCA 2 Para 1

…hat sentence. This appeal was heard with the appeal in R v Palmer [1] and this judgment is being given on the same day as judgment in that appeal. [1][2005] QCA 2; CA No 276 of 2004, 4 February 2005.…
R v Schuurs
[2000] QCA 278 Para 1

…ences of this kind of between 10 and 14 years imprisonment. With great respect to his Honour I disagree with that conclusion. [4][1993] 1 QdR 643. [5][2000] QCA 278; CA No 403 of 1999, 14 July 2000.…
Callaghan v The Queen
[1952] HCA 55 Para 1

…an act done apparently in response to it. The Crown is then obliged to exclude the operation of s 31(1)(c) and s 31(1)(d). [3] Callaghan v The Queen (1952) 87 CLR 115 at 119; Evgeniou v The Queen (1964) 37 ALJR 508 at 510, 511, 513; R v Hodgetts and Jackson [1990] 1 QdR 456 at 459.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Smith [2005] QCA 1
PARTIES:	R v SMITH, Daniel Bernard (appellant/applicant)
FILE NO/S:	CA No 240 of 2004 SC No 14 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Toowoomba
DELIVERED ON:	4 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2004
JUDGES:	Davies JA and Fryberg and Mullins JJ Separate reasons for judgment of each member of the Court, Davies JA and Mullins J concurring as to the orders made, Fryberg J dissenting in part
ORDER:	1. Dismiss the appeal against conviction 2. Grant the application for leave to appeal against sentence and allow the appeal against sentence 3. Set aside the sentence imposed by the learned sentencing judge 4. In lieu, sentence the appellant to eight years imprisonment 5. Declare that a period of 52 days between 24 December 2002 and 13 February 2003 and the night of 20 - 21 July 2004, a total of 53 days, to be time served under the sentence
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - OTHER CASES- where the appellant was convicted of manslaughter for supplying a rifle and ammunition to another person who then used them to murder two victims - where the appellant submitted that the learned trial judge erred in law when he ruled that the defence of s 25 CriminalCode was not open to be left to the jury on a charge of murder or manslaughter - whether the opening words of s 25 exclude the operation of the defence in circumstances where s 31 Criminal Code is enlivened CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - GENERALLY - where the appellant submitted that the learned trial judge failed to direct the jury adequately as to the defence of compulsion in respect of the manslaughter charge - where there was an alleged failure to mention all the factors from which compulsion could be inferred - whether there was a misdirection by the learned trial judge that resulted in a miscarriage of justice CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the appellant was sentenced to 10 years imprisonment - where the appellant was 20 years old at the time of the offences and had no prior criminal history - where there was evidence that the appellant was in the category of borderline intellectual disability - whether the sentence imposed was manifestly excessive in all the circumstances Criminal Code (Qld), s 25, s 31(1) Callaghan v The Queen (1952) 87 CLR 115, cited R v Jervis [1993] 1…