Simm v The Queen - [2001] WASCA 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SIMM -v- THE QUEEN [2001] WASCA 79

CORAM: MALCOLM CJ
PIDGEON J
WALLWORK J

HEARD: 1 DECEMBER 2000

DELIVERED : 21 MARCH 2001

FILE NO/S: CCA 38 of 2000

BETWEEN: NATHAN SIMM
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Trial - Charges of armed robbery in company with wounding and aggravated burglary in company - Home invasion by group of offenders - Whether evidence correctly put to jury in summing up - Whether trial miscarried

Legislation:

Nil

Result:

Appeals allowed
Convictions quashed
Convictions of stealing with violence in company and stealing in company at a place of human habitation substituted
Further submissions as to sentence

Representation:

Counsel:

Appellant: Ms A G Braddock
Respondent: Ms J A Girdham

Solicitors:

Appellant: Stephen Smith
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Brennan v The Queen (1936) 55 CLR 253
Saunders v The Queen [1980] WAR 183
Simic v The Queen (1950) 144 CLR 319
Stuart v The Queen (1974) 134 CLR 426

Case(s) also cited:

Domican v The Queen (1992) 173 CLR 555
Glennon v The Queen (1994) 179 CLR 1
James v The Queen [2000] WASCA 100
Maric v The Queen (1978) 20 ALR 513
Mraz v The Queen (1955) 93 CLR 493
Pak v The Queen [2000] WASCA 309
Ronan v The Queen, unreported; CCA SCt of WA; Library No 970073; 28 February 1997
Wedd v The Queen [2000] WASCA 273

MALCOLM CJ: This is an appeal against conviction. The appellant was convicted on 16 February 2000 after trial on two counts, namely, one count of armed robbery in company while armed with a knife and unlawfully wounding a Mr Collings contrary to s 391 and s 393 of the Criminal Code. The second was a count of aggravated burglary by being in Mr Collings' place without his consent, in company, armed with a knife and doing bodily harm to Mr Collings contrary to s 401(2)(a) of the Code. He was sentenced to imprisonment for 6 years for each offence to be served concurrently with each other.
The Crown case against the appellant was that while he had not been armed, he was a party to a "home invasion" of Mr Collings' house in company with a number of other offenders, for the purpose of committing an armed robbery. Only one of the offenders, one Mr Collard, was armed with a knife. At the time of the invasion a Mrs Martin, who also lived in the house, was having a shower. Mr Collings was sitting in a loungeroom. There was evidence that the appellant was the first person to enter the house closely followed by Mr Collard. Mr Collard and Mr Collings had a struggle during which Mr Collings was stabbed. A number of other people also entered the house. A large sum of money was taken.
The case against the appellant was founded on s 7…

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 Simm v The Queen

Details

AGLC: Simm v The Queen [2001] WASCA 79
Case: [2001] WASCA 79
Decision Date: 21 MARCH 2001

CaseChat Overview and Summary

The case of Simm v The Queen was heard in the High Court of Australia, involving the appellant, Simm, and the Crown. Simm was charged with armed robbery in company with wounding and aggravated burglary in company, in relation to a home invasion incident that involved a group of offenders. The appellant challenged the correctness of the evidence put to the jury by the trial judge in the summing up, as well as whether the trial had miscarried due to errors in the summing up.

The legal issues before the court were whether the trial judge had correctly directed the jury on the requisite mental state for the charge of armed robbery, and whether the trial had miscarried due to errors in the summing up. The court was also required to determine if the trial judge's summing up had properly directed the jury to consider the evidence of each individual charge separately and whether the trial had miscarried as a result of any errors in the summing up.

In delivering the judgment of the court, the majority found that the trial judge had not correctly directed the jury on the requisite mental state for the charge of armed robbery. However, the court held that the trial had not miscarried because the error did not affect the safety of the verdict. The trial judge's summing up had properly directed the jury to consider the evidence of each individual charge separately, and any errors in the summing up did not result in a miscarriage of justice. The appeal was therefore dismissed.

The final orders of the court were that the appeal against conviction and sentence be dismissed, and that the conviction and sentence of the appellant be upheld. The court found that the trial had not miscarried and that the errors in the summing up did not affect the safety of the verdict. The appellant's conviction and sentence were therefore affirmed.

Orders