R v Smith - [2013] QDC 288

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Smith [2013] QDC 288

PARTIES:

THE QUEEN

v

ANTON SMITH

FILE NO/S:

4617/12

DIVISION:

Trial

PROCEEDING:

Criminal

ORIGINATING COURT:

District Court, Gladstone

DELIVERED ON:

Decision delivered on 15 November 2013

Reasons delivered on 21 November 2013

DELIVERED AT:

Gladstone

HEARING DATE:

15 November 2013

JUDGE:

Smith DCJ

ORDER:

1. Objection by the Crown is overruled.

2. The Defence is permitted to cross examine the witness McCann as to the complainant’s behaviour at the Port Curtis Hotel about two weeks before the alleged offence.

CATCHWORDS:

CRIMINAL LAW- EVIDENCE- Whether the defence is able to cross examine as to a complainant’s violent conduct on another occasion

Criminal Code 1899 (Q) s 271

BBH v R (2012) 245 CLR 499

Knight v Jones ex parte Jones [1981] Qd R 98

Lowery v R [1974] AC 85

Nicholls v R (2005) 219 CLR 196

R v Carrington [2007] VSC 432

R v Ellem (No 1) [1995] 2 Qd R 542

R v Gibb and McKenzie [1983] 2 VR 155

R v Harmer (1985) 28 A Crim R 35

R v Hector [1953] VLR 543

R v Knowles [1984] VR 751

R v Lawrence [2002] 2 Qd R 400

R v Mogg (2000) 112 A Crim R 417

R v PP (2002) 135 A Crim R 575

COUNSEL:

Ms S Hedge for the Crown

Mr D Murray for the Defendant

SOLICITORS:

Director of Public Prosecutions (Qld)

Kenny and Partners for the Defendant

Introduction

The Defendant is charged with one count of unlawfully doing grievous bodily harm to the complainant Justin Whitfield at Gladstone on or about 24 December 2011.

On 15 November 2013 the Crown Prosecutor objected to the defence asking questions as to the complainant’s alleged violent propensity on another occasion.

In evidence-in-chief the witness McCann (a hotel manager) alleged that the complainant had caused problems for him about two weeks prior to the incident in question.

Defence counsel sought to elicit the details of this in the presence of the jury. Objection was taken on the grounds of relevance by the Crown.

After hearing evidence from the witness on voir dire and after hearing submissions I permitted the questions to be asked in the presence of the jury and stated that I would give more detailed reasons on another occasion for allowing this course.

These are my reasons.

The evidence

As noted earlier Mr Smith is charged with unlawfully doing grievous bodily harm of Justin Whitfield on 24 December 2011 in Gladstone.

The allegation against him is that there was a verbal altercation between Mr Smith’s group and Justin Whitfield outside the Reef Hotel in Goondoon Street, Gladstone. The Reef Hotel is part of the entertainment precinct of Gladstone. The Port Curtis Hotel is about 60 metres away from the Reef Hotel.

After this verbal altercation the complainant walked further down the street away from the Defendant and his group and picked up a bottle and smashed it. He was turning around in the direction of…

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 [2013] QDC 288
Case: [2013] QDC 288
Decision Date: 15 November 2013

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Smith involved a criminal charge against the defendant, Smith, who was accused of an offence under the Criminal Code 1899 (Q) s 271. The defence sought to introduce evidence of the complainant's violent conduct on a separate occasion, specifically at the Port Curtis Hotel, to challenge her credibility and suggest a propensity for violence. The Crown objected to this line of questioning, arguing that such evidence was irrelevant and prejudicial.

The court was required to determine whether the defence could cross-examine the witness, McCann, regarding the complainant's violent conduct at the Port Curtis Hotel. The central issue was whether this evidence was relevant and admissible under the rules of evidence, particularly in relation to the complainant's credibility and any propensity to engage in violent behaviour. The court considered previous cases such as BBH v R, Knight v Jones, Lowery v R, Nicholls v R, R v Carrington, R v Ellem, R v Gibb and McKenzie, R v Harmer, R v Hector, R v Knowles, R v Lawrence, R v Mogg, and R v PP to guide its decision.

The court found that the evidence of the complainant's violent conduct at the Port Curtis Hotel was relevant to her credibility and could be used to challenge her account of events. The court overruled the Crown's objection, allowing the defence to cross-examine the witness McCann about the complainant's behaviour at the hotel. This decision was based on the principle that evidence of a witness’s character or propensity for violence is admissible to challenge their credibility when it is relevant to the issues in the case. The court's reasoning aligned with the approach taken in previous cases, which recognised that such evidence could be pertinent to understanding the witness's reliability and potential biases.

The final orders of the court permitted the defence to cross-examine the witness McCann regarding the complainant's behaviour at the Port Curtis Hotel, thereby allowing the defence to pursue its line of questioning in the trial.

Orders

Orders of the court

1. Objection by the Crown is overruled.

2. The Defence is permitted to cross examine the witness McCann as to the complainant’s behaviour at the Port Curtis Hotel about two weeks before the alleged offence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Smith [2013] QDC 288
PARTIES:	THE QUEEN v ANTON SMITH
FILE NO/S:	4617/12
DIVISION:	Trial
PROCEEDING:	Criminal
ORIGINATING COURT:	District Court, Gladstone
DELIVERED ON:	Decision delivered on 15 November 2013 Reasons delivered on 21 November 2013
DELIVERED AT:	Gladstone
HEARING DATE:	15 November 2013
JUDGE:	Smith DCJ
ORDER:	1. Objection by the Crown is overruled. 2. The Defence is permitted to cross examine the witness McCann as to the complainant’s behaviour at the Port Curtis Hotel about two weeks before the alleged offence.
CATCHWORDS:	CRIMINAL LAW- EVIDENCE- Whether the defence is able to cross examine as to a complainant’s violent conduct on another occasion Criminal Code 1899 (Q) s 271 BBH v R (2012) 245 CLR 499 Knight v Jones ex parte Jones [1981] Qd R 98 Lowery v R [1974] AC 85 Nicholls v R (2005) 219 CLR 196 R v Carrington [2007] VSC 432 R v Ellem (No 1) [1995] 2 Qd R 542 R v Gibb and McKenzie [1983] 2 VR 155 R v Harmer (1985) 28 A Crim R 35 R v Hector [1953] VLR 543 R v Knowles [1984] VR 751 R v Lawrence [2002] 2 Qd R 400 R v Mogg (2000) 112 A Crim R 417 R v PP (2002) 135 A Crim R 575
COUNSEL:	Ms S Hedge for the Crown Mr D Murray for the Defendant
SOLICITORS:	Director of Public Prosecutions (Qld) Kenny and Partners for the Defendant