R v Smith
[2001] WASCA 102
•29 MARCH 2001
R -v- SMITH [2001] WASCA 102
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 102 | |
| COURT OF CRIMINAL APPEAL | 29/03/2001 | ||
| Case No: | CCA:249/2000 | 7 MARCH 2001 | |
| Coram: | KENNEDY J WALLWORK J GROVE AJ | 7/03/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed - New trials ordered - Leave granted to issue warrant for arrest of respondents if necessary | ||
| PDF Version |
| Parties: | THE QUEEN LARRY RALPH SMITH PETER ERIC CLARKSON |
Catchwords: | Criminal law and procedure Crown appeals against verdicts of acquittal by direction Evidence for the crown capable of establishing guilt of the accused Verdicts of acquittal set aside New trials ordered |
Legislation: | Criminal Code (WA) |
Case References: | Nil Attorney General's Reference (No 1 of 1983) [1983] 2 VR 410 Bromley v The Queen (1986) 161 CLR 315 Doney v The Queen (1990) 171 CLR 207 Ling v R The Queen[1981] Tas R 250 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Bilick (1984) 36 SASR 321 R v Galbraith (1981) 73 Cr App R 124 R v James (1983) 36 SASR 215 R v Prasad (1979) 23 SASR 161 R v R (1989) 18 NSWLR 74 R v Short [1928] St R Qd 246 Toohey v Metropolitan Police Commissioner [1965] AC 595 Trainer v The King (1906) 4 CLR 126 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- SMITH [2001] WASCA 102 CORAM : KENNEDY J
- WALLWORK J
GROVE AJ
- Appellant
AND
LARRY RALPH SMITH
Respondent
- Appellant
AND
PETER ERIC CLARKSON
Respondent
(Page 2)
Catchwords:
Criminal law and procedure - Crown appeals against verdicts of acquittal by direction - Evidence for the crown capable of establishing guilt of the accused - Verdicts of acquittal set aside - New trials ordered
Legislation:
Criminal Code (WA)
Result:
Appeals allowed - New trials ordered - Leave granted to issue warrant for arrest of respondents if necessary
Representation:
CCA 249 of 2000
Counsel:
Appellant : Mr K P Bates
Respondent : Mr J A Sutherland
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : McDonald & Sutherland
CCA 250 of 2000
Counsel:
Appellant : Mr K P Bates
Respondent : Mr B S Hanbury
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Beau Hanbury
(Page 3)
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Attorney General's Reference (No 1 of 1983) [1983] 2 VR 410
Bromley v The Queen (1986) 161 CLR 315
Doney v The Queen (1990) 171 CLR 207
Ling v R The Queen[1981] Tas R 250
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Bilick (1984) 36 SASR 321
R v Galbraith (1981) 73 Cr App R 124
R v James (1983) 36 SASR 215
R v Prasad (1979) 23 SASR 161
R v R (1989) 18 NSWLR 74
R v Short [1928] St R Qd 246
Toohey v Metropolitan Police Commissioner [1965] AC 595
Trainer v The King (1906) 4 CLR 126
(Page 4)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Grove AJ. Those reasons accord with my own reasons for joining in the orders made by this Court on 7 March 2001.
2 WALLWORK J: I am in agreement with the reasons for judgment of Grove AJ and they are in accord with my reasons for joining in the orders of the Court made on 7 March 2001.
3 GROVE AJ: At the conclusion of the hearing of these appeals the Court ordered that the appeals be allowed, that there be a new trial on the indictment and leave granted for the issue of a warrant for the arrest of the respondents if the same became necessary and it indicated that reasons would be published at a later date. My reasons for joining in those orders follow.
4 The respondents were presented for trial in the District Court before his Honour Judge Healy and a jury upon an indictment charging burglary contrary to s 401(2)(a) of the Criminal Code WA ("the Code"). The circumstance of aggravation pleaded was the commission of the offence in company with others. After the close of the Crown case his Honour ruled that there was insufficient evidence to go to the jury, specifically in relation to identification of both respondents and he directed the jury to return a verdict of not guilty in respect of each of them. This appeal is brought on the part of the prosecution pursuant to s 688(2)(b) of the Code.
5 The sole ground of appeal in each case contended that the learned trial Judge erred in directing the jury that there was no evidence upon which they could find the particular respondent guilty since there was no evidence identifying him as the offender.
6 The second respondent, Larry Ralph Smith, in an outline of submissions filed and signed by counsel on his behalf, conceded that the ground had been made out.
7 The evidence at trial showed that between 7 am and 10.40 am on 7 April 1999 premises at 38 Timberlane Crescent, Beechboro were burgled and a 68 cm Sanyo television, black in colour, was stolen. On that morning four men, the respondents, Kevin Gaigai and Samuel Boyd went to a mechanic shop in Beechboro for the purpose of attention to Boyd's blue Ford Falcon motor car. While the car was being attended to the respondents left the shop on foot. The other two remained there and, the respondents not having returned by the time the car was ready, they
(Page 5)
- drove to look for them and in the course of so doing, drove upon Timberlane Crescent.
8 A witness (Mr Bilyk) testified that he saw two males behind the fence of the property at 38 Timberlane Crescent who, by whistling and calling out, attracted the attention of two other males who were driving in the Crescent in a blue Ford Falcon motor car. Another witness (Mrs Fox) saw a blue Ford Falcon parked outside the premises where the burglary was later found to have taken place. A third witness (Mrs Quinn) noticed a blue Ford Falcon drive up and down Timberland Crescent when it was hailed by a person standing behind the gates in the carport of number 38. It did not, on that occasion, stop. About 10 minutes later she saw the same car drive off in Timberlane Crescent and noticed a large black television set on the back seat.
9 Gaigai and Boyd were called in the prosecution case, however, for reasons which need not now be elaborated, the Crown did not seek to rely upon the evidence of Boyd either at trial or in the appeal.
10 Gaigai testified that he knew both of the respondents. He described leaving the mechanic shop in Boyd's car and driving along Timberlane Crescent "to look for Peter and Larry" (the respondents). They were seen near a laneway near the side of a fence and they stopped to pick them up and he gave this evidence:
"Now, when you saw Larry and Peter, did they have anything with them that they hadn't had when they were at the tyre shop? - There was a TV and Samuel [Boyd] jumped out and helped them and I stayed in the car."
11 He further testified that the four of them went to the house of one, Robert Blackburn, where the television set was sold. Shortly before midnight on the same date the blue Ford Falcon was stopped by police and the occupants of the vehicle were the respondents, Gaigai and Boyd.
12 There was evidence fit to be considered by the jury identifying the respondents as the perpetrators of the burglary at 38 Timberlane Crescent and accordingly I joined in the making of the orders above noted.
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