R v Smith - [2002] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.389 of 2000

THE QUEEN
	v.
MARK JOHN SMITH

---

JUDGES:	PHILLIPS, C.J. and PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 September 2002
DATE OF JUDGMENT:	20 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 219

---

Criminal law – Murder and attempted murder – Fire on bed killing child and injuring mother – Strong circumstantial case against father/husband – Whether motive link in chain – Whether directions sufficient on lies as admissions – Whether directions sufficient in respect of expert evidence – No relevant exception below – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Morgan-Paylor Q.C. with Ms C. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Dr. I.R.L. Freckelton	Victoria Legal Aid

PHILLIPS, C.J.:

The applicant, who is aged 37, was convicted in the Supreme Court Melbourne on 27 October 2000 of one count of murder and one count of attempted murder. (Counts 1 and 2 on the Presentment.) These offences, which were allegedly committed at Hoppers Crossing on 4 October 1995, carried maximum penalties of life imprisonment and 25 years’ imprisonment respectively. In the case of the count of murder, the victim was Adrian Kingsley Smith, the son of the applicant. As to the second count, the victim was the wife of the applicant, Nicole Smith, who was married to him in July 1991. She was known at the trial as Nicole Taylor.

The applicant had no prior convictions and after hearing a plea in mitigation which involved the production of some evidence and a Victim Impact Statement, the learned judge on 6 December 2000 sentenced the applicant to be imprisoned for 22 years on count 1 and nine years on count 2. His Honour directed that four years of the sentence on count 2 were to be served cumulatively upon the sentence on count 1 making for a total effective sentence of 26 years’ imprisonment. A non-parole period of 22 years was fixed and a declaration made of 490 days pre-sentence detention having been served. On 7 December 2000 the applicant lodged notice of application for leave to appeal against his convictions pleading a number of grounds. On 16 September 2002, by leave of the learned Registrar, four more grounds were added so that at the commencement of the hearing of this application 11 grounds had been pleaded.

During the hearing Dr Freckelton, for the applicant, sought and was granted leave to withdraw grounds 1, 2, 3, 5, 7 and 11 and further leave to amend grounds 4, 6, 8, 9 and 10 as follows:

“4.That the learned trial judge’s directions to the jury in respect of the evidence of Dr Cass fell into error by failing expressly to direct the jury that they should disregard his opinions if they accepted that Ms Taylor had received her burns in a short, intense exposure to flame or as a result of contact in part with molten matter from the fire.

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: The Queen v Smith [2002] VSCA 219
Case: [2002] VSCA 219
Decision Date: 20 December 2002

CaseChat Overview and Summary

The appellant, Smith, was convicted by a jury of the murder of his two-year-old daughter and the attempted murder of his wife. The victim, the daughter, died from smoke inhalation after the appellant set fire to a mattress upon which she was sleeping, while the wife sustained burns. Smith was convicted of murder and attempted murder, and he appealed against those convictions. The appeal was dismissed by the court.

The appeal hinged on several legal issues. The first issue was whether the motive was a necessary link in the chain of causation for murder. The second issue was whether the trial judge’s directions to the jury on the appellant’s lies as admissions were sufficient. The third issue was whether the directions to the jury in respect of the expert evidence were sufficient. The court had to determine whether the directions given to the jury were adequate and whether there were any exceptions to the rules of evidence that were relevant.

The court held that the motive was not a necessary link in the chain of causation for murder. The court also found that the directions given to the jury on the appellant’s lies as admissions were sufficient, and that the directions in respect of the expert evidence were also sufficient. The court further held that there were no relevant exceptions to the rules of evidence that applied in this case. As a result, the appeal was dismissed. The appellant’s conviction for murder and attempted murder was upheld.

In conclusion, the appeal was dismissed, and the appellant’s conviction for murder and attempted murder was upheld. The court found that the motive was not a necessary link in the chain of causation for murder, and that the directions given to the jury were sufficient. The court also held that there were no relevant exceptions to the rules of evidence that applied in this case.

Orders