R v Smith - [2003] QCA 281

SUPREME COURT OF QUEENSLAND

CITATION: R v Smith [2003] QCA 281
PARTIES: R
v
SMITH, Donna Marie
(applicant)
FILE NO/S: CA No 141 of 2003 DC No 150 of 2002
DIVISION: Court of Appeal
PROCEEDING: Application for Extension (Sentence & Conviction)
ORIGINATING
COURT: District Court at Townsville
DELIVERED EX 8 July 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 8 July 2003
JUDGES: Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for extension of time within which to appeal
against conviction and sentence refused
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where witness at trial admitted afterwards that he had committed perjury by giving the evidence which he did – where the evidence given by that witness was favourable to applicant – whether this meant that the applicant did not receive a fair trial – whether jury was properly directed on the use they could make of prior inconsistent statements made by that witness
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where applicant convicted on two counts of defrauding the Commonwealth – where sentenced to two and a half years imprisonment with an order that she be released on a recognisance after serving 12 months imprisonment – where reparation order in the sum of $35,975.33 – where no remorse – where prior convictions for dishonesty – whether any merit in issues that would be raised if extension of time was
granted
COUNSEL: The applicant appeared on her own behalf
G C Davey for the respondent
SOLICITORS: The applicant appeared on her own behalf
Director of Public Prosecutions (Commonwealth) for the
respondent

WILLIAMS JA: The applicant was convicted on the 21st of September 2002 after an eight day trial of two counts of defrauding the Commonwealth. Count 2 on the indictment alleged an offence between the 28th of July 1995 and the 7th of November 1996 and Count 3 on the indictment alleged an offence between the 19th of May 1997 and the 11th of February 2000. They were counts on which a conviction was recorded.

The jury acquitted the applicant of Count 1 on the indictment which alleged a similar offence committed between the 16th of November 1994 and the 11th of January 1995. On each count on which conviction was recorded the applicant was sentenced to

two and a half years' imprisonment with an order that she be
released on a recognisance after serving 12 months

imprisonment. Those sentences were to be served concurrently.

There was also a reparation order in the sum of $35,975.33.

The applicant lodged an appeal against conviction on the 25th against conviction…

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 [2003] QCA 281
Case: [2003] QCA 281
Decision Date: 8/07/2003

CaseChat Overview and Summary

The case involved a criminal appeal by the applicant, Smith, against his conviction and sentence. Smith sought an extension of time to appeal against his conviction and sentence, which the court considered. The issue before the court was whether the applicant had a valid ground for an extension of time to appeal, given that he wished to rely on the unavailability of fresh evidence at the time of the trial. The fresh evidence in question related to a witness who admitted after the trial that they had perjured themselves by giving evidence favourable to the applicant. The court had to determine whether this newly available evidence was material and cogent enough to warrant a new trial and whether the jury had been properly directed on the use they could make of prior inconsistent statements made by that witness.

The court held that the applicant's appeal was not based on fresh evidence unavailable at the time of the trial, but rather on the failure of the trial judge to properly direct the jury on the use they could make of prior inconsistent statements made by the witness. The court found that the trial judge had not erred in their directions to the jury regarding the witness's credibility and the weight to be given to their evidence. The court further found that the witness's admission of perjury did not necessarily mean that the applicant had not received a fair trial, as the jury had been properly directed on how to assess the credibility of the witness's evidence. Therefore, the court concluded that the applicant did not have a valid ground for an extension of time to appeal against his conviction and sentence.

In light of the above findings, the court refused the application for an extension of time within which to appeal against the conviction and sentence. The court found that the applicant had not demonstrated any grounds for an extension of time, and therefore the appeal was dismissed. The court emphasised the importance of properly directing juries on the assessment of witness credibility and the weight to be given to their evidence, particularly in cases where a witness admits to committing perjury.

Orders

Orders of the court

Application for extension of time within which to appeal

against conviction and sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Smith [2003] QCA 281
PARTIES:	R v SMITH, Donna Marie (applicant)
FILE NO/S:	CA No 141 of 2003 DC No 150 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX	8 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	8 July 2003
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to appeal against conviction and sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where witness at trial admitted afterwards that he had committed perjury by giving the evidence which he did – where the evidence given by that witness was favourable to applicant – whether this meant that the applicant did not receive a fair trial – whether jury was properly directed on the use they could make of prior inconsistent statements made by that witness
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where applicant convicted on two counts of defrauding the Commonwealth – where sentenced to two and a half years imprisonment with an order that she be released on a recognisance after serving 12 months imprisonment – where reparation order in the sum of $35,975.33 – where no remorse – where prior convictions for dishonesty – whether any merit in issues that would be raised if extension of time was
granted
COUNSEL:	The applicant appeared on her own behalf G C Davey for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Commonwealth) for the respondent