R v Smith - [1997] QCA 109

IN THE COURT OF APPEAL	[1997] QCA 109
SUPREME COURT OF QUEENSLAND

C.A. No. 566 of 1996

Brisbane

Before Davies JA
Ambrose J

White J

[R. v Smith]

T H E Q U E E N

GORDON HOLDEN SMITH

(Applicant)

Appellant

McPherson JA
Ambrose J
White J

Judgment delivered 9 May 1997

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:APPLICATION FOR STAY - miscarriage of justice - stay sought on ground that a witness could not be located - that witness had on a prior occasion given evidence exculpating the appellant - prior evidence given before the Criminal Justice Commission inadmissable at trial - R v Goldburg No. 60607 of 1992 (unreported NSW Court of Criminal Appeal).

WITNESSES - power of trial judge to call

Counsel:	Mr A Kimmins for the applicant/appellant
Mr D Meredith for the respondent
Solicitors:	Power and Power for the applicant/appellant
Queensland Director of Public Prosecutions for the respondent
Hearing Date:	4 April 1997
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 9 May 1997

I have had the advantage of reading the reasons for judgment of Ambrose J. and White J. I agree with both of their Honours both as to their conclusions and their reasons.

REASONS FOR JUDGMENT - B. W. AMBROSE J.

Judgment delivered 9 May 1997

This is an appeal against conviction on the ground of miscarriage of justice. The appellant was refused a stay of proceedings upon an indictment charging him with extortion as a public officer pursuant to s.88 of the Criminal Code. The stay was sought on the ground that a witness, who had on a prior occasion given evidence exculpating the appellant upon the charge, could not be located to effect service on him of a subpoena to attend court; the witness was aware that the appellant sought to have him give evidence upon his trial and was deliberately evading service of the subpoena.

Although a number of matters were raised in the notice of appeal this point was the only one argued. The appellant seeks an order setting aside the conviction and for a new trial with a stay of proceedings until the attendance of the witness in question can be procured.

I will recount briefly the facts canvassed.

The appellant was a police officer stationed on the Gold Coast at times material to the offence charged. He had been a member of the police force for approximately 12 years.

It was the Crown case that he received from a person he believed to be the representative of the insurer of a stolen motor vehicle, a reward paid for the recovery of possession of that motor vehicle for the benefit of the insurer. The insurer was said to have paid out to the person from whom the motor vehicle had purportedly been stolen, moneys payable under an insurance policy and 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 [1997] QCA 109
Case: [1997] QCA 109
Decision Date: 9/05/1997

CaseChat Overview and Summary

This appeal concerns the conviction of Gordon Holden Smith for extortion as a public officer under section 88 of the Criminal Code. The appellant sought a stay of proceedings on the basis that a crucial witness, Sawyer, could not be located to testify. The Court of Appeal dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The appellant, a police officer stationed on the Gold Coast, was charged with receiving a reward for the recovery of a stolen motor vehicle. The Crown case was that the appellant received a payment of $9,000 from an investigator posing as an insurance company representative. Sawyer, a police informer, had previously given evidence before the Criminal Justice Commission, exculpating the appellant. However, the appellant was unable to locate Sawyer to testify at trial. The Court of Appeal found that there was no abuse of process and that the appellant's inability to locate Sawyer did not warrant a stay of proceedings. The Court also refused the application for leave to appeal against sentence, finding that the sentence imposed was not manifestly excessive.

Orders