R v Smith - [1997] QCA 350

IN THE COURT OF APPEAL	[1997] QCA 350
SUPREME COURT OF QUEENSLAND

C.A. No. 29 of 1997

Brisbane

Before	Macrossan CJ Fitzgerald P Davies JA
[R v. Smith]

THE QUEEN

AARON THOMAS SMITH

(Applicant) Appellant
Macrossan C.J.
Fitzgerald P.
Davies J.A.

Judgment delivered 10 October 1997

Separate reasons for judgment of each member of the Court; Macrossan C.J. and Davies J.A. concurring as to the orders made, Fitzgerald P. dissenting.

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL AGAINST SENTENCE ALLOWED. THE SENTENCE IMPOSED BELOW IS
SET ASIDE AND A SENTENCE OF FOUR YEARS IMPRISONMENT IS
SUBSTITUTED.

SENTENCE - appellant sentenced to 5½ years imprisonment - young offender with minor criminal history - unlikely that complainant will suffer gross impairment - whether trial judge gave too little weight to prospect of rehabilitation - whether sentence manifestly excessive.

Counsel:	Mr A. Glynn S.C. for the applicant/appellant. Mr D. Bullock for the respondent.
Solicitors:	Robertson O’Gorman for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	15 May 1997.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 10 October 1997

The facts are set out in the judgments of the President and Davies JA.
The appellant’s argument was directed to the evidence that was admitted of injuries

suffered by the infant son of Ms Ellacott additional to and distinct from the head injuries that were the subject of the offence charged. It was submitted that the admission of this further evidence, notwithstanding objection, meant that the verdict should not be permitted to stand.

The case against the appellant without the additional evidence was a strong one. The evidence of Ms Ellacott was that on the morning of 28 January 1996 after the appellant had been alone in a room with the crying child, Ms Ellacott entered the room and the child was then in the condition she described with head flopping and eyes turned back in his head. These were signs of the skull fracture and brain damage, the subject of the charge. After an ambulance had been summoned and an examination made at the hospital, those injuries were diagnosed as having been recently suffered.

Ms Ellacott gave evidence at the trial and in the course of it denied that she had caused the injuries charged or any of the other injuries that the child, on the medical evidence, was said to have sustained in the period stretching back for about three weeks prior to 28 January. Although the appellant prior to trial had made a statement to the investigating authorities denying that he had caused any of the child’s injuries, he did not give evidence. Since there was no suggestion that anyone else had been in the house with access to the child on the morning of 28 January, it was clear that the only people with opportunity to inflict the injury charged were Ms Ellacott and the appellant. If the jury, having seen and heard Ms Ellacott give her evidence…

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 [1997] QCA 350
Case: [1997] QCA 350
Decision Date: 10/10/1997

CaseChat Overview and Summary

The case of R v Smith involved an appeal by the appellant against his conviction and sentence for grievous bodily harm inflicted on a ten-month-old child. The appellant argued that the trial judge erred in admitting evidence of the child’s earlier injuries, which were not the subject of the charge, and in his directions to the jury regarding the use of that evidence. The court considered the admissibility of the evidence of earlier injuries under the propensity evidence test, which required that the evidence be logically probative of the offence charged and that its probative value outweigh its prejudicial effect. The majority of the court found that the evidence of the earlier injuries was properly admitted and used by the jury to exclude the possibility of accident and to show the appellant's attitude toward the child. The appeal against conviction was dismissed. Regarding the sentence, the court found that the trial judge did not adequately consider the appellant's prospects for rehabilitation, given his young age and limited prior criminal history. The appeal against sentence was allowed, and the sentence was substituted with four years imprisonment.

The key legal issues in this case were the admissibility of evidence of the child's earlier injuries and the appropriateness of the sentence imposed on the appellant. The court concluded that the evidence of the earlier injuries was properly admitted as it was logically probative of the offence charged and assisted the jury in excluding the possibility of accident. However, the court found that the trial judge did not give sufficient weight to the appellant's prospects for rehabilitation, which, given his young age and limited criminal history, were considered to be quite high. As a result, the court substituted the original sentence with a four-year imprisonment term.

Orders