Smale v R

Case [2007] NSWCCA 328

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      SMALE, Garry Anthony v R [2007]  NSWCCA 328
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2002/2373

HEARING DATE(S):               26 October 2007

JUDGMENT DATE: 29 November 2007

PARTIES:
Garry Anthony SMALE v Regina

JUDGMENT OF:       Mason P James J Howie J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          DC 2002/95

LOWER COURT JUDICIAL OFFICER:     Patten AJ

LOWER COURT DATE OF DECISION:    26 August 2005

COUNSEL:
D Arnott SC (Crown)
D Patch (Appellant)

SOLICITORS:
S Kavanagh (Crown)
North and Badgery Solicitors (Appelllant)

CATCHWORDS:
APPEAL - Conviction appeal - Judge summing up  on case not relied upon by the Crown - application of the proviso - Sentence appeal - Ground based on fresh evidence - CRIMINAL LAW - Practice and Procedure - whether address by prosecutor unduly prejudicial - Summing up - case not relied upon by Crown - CRIMINAL LAW - Evidence - Whether evidence of other offences inadmissible or unduly prejudicial - CRIMINAL LAW - Sentence - offender convicted of murder and the included offence - double punishment.

LEGISLATION CITED:
Crimes Act 1900 - ss 18(1), 97(2)
Firearms Act 1996
Evidence Act 1995 - ss 137, 165
Criminal Appeal Rules - rule 4
Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(j), 23A(3)(j)

CASES CITED:
R v Sharah (1992) 30 NSWLR 292
Livermore v R [2006] NSWCCA 334
Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309
Thorne v R [2007] NSWCCA 10
R v Murray (1987) 11 NSWLR 12
R v Solomon [1980] 1 NSWLR 321
Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
Weiss v The Queen [2005] HCA 81; 224 CLR 300
R v Deng [2007] NSWCCA 216
R v Fordham (1997) 98 A Crim R 359
R v Henry (1999) 46 NSWLR 346
R v Bo Too (NSWCCA, unreported, 16 July 1992)
R v HQ [2003] NSWCCA 336
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Oinonen [1999] NSWCCA 310
R v Stamboulis [2006] NSWCCA 56; 160 A Crim R 510
Pearce v The Queen [1998] HCA 57; 194 CLR 610

DECISION:
1. The appeal against conviction of the charge of murder is dismissed.  2. Leave is granted to appeal against sentence in respect of both sentences.  3. The appeal against the sentence for murder is dismissed.  4. (i) The appeal against the sentence for the armed robbery offence is allowed.  (ii) The sentence imposed is quashed.  In lieu the appellant is sentenced to imprisonment for 8 1/2 years from 18 March 2002.  (iii) There is to be a non-parole period of 6 years 4 months to expire on 17 July 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2002/2373

MASON P
JAMES J
HOWIE J

THURSDAY 29 NOVEMBER 2007

Garry Anthony SMALE v Regina

Judgment

  1. MASON P: I agree with Howie J.

  2. JAMES J: I agree with Howie…

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Details
AGLC
Smale v R [2007] NSWCCA 328
Case
[2007] NSWCCA 328
Decision Date

CaseChat Overview and Summary

The appellant, Smale, appealed against his conviction and sentence for armed robbery, with the appeal focusing on various legal and procedural aspects of the trial and sentencing. The case was heard in the court of appeal, which was tasked with evaluating the validity of the conviction and the sentence imposed. The appellant argued that the summing up by the judge on a case not relied upon by the Crown was erroneous and prejudicial, the prosecutor's address was unduly prejudicial, and the evidence of other offences was inadmissible or unduly prejudicial. Additionally, the appellant contested the double punishment issue, arguing that being convicted of both murder and the included offence of armed robbery was inappropriate.

The court addressed the issue of whether the summing up by the judge on a case not relied upon by the Crown was erroneous and prejudicial. The court examined the circumstances of the summing up and the application of the proviso, determining whether it had an impact on the fairness of the trial. The court also considered whether the prosecutor's address was unduly prejudicial, assessing the impact of the address on the jury's decision-making process. Furthermore, the court evaluated the admissibility and prejudicial effect of evidence of other offences, considering whether it should have been excluded from the trial. Lastly, the court addressed the issue of double punishment, examining whether the appellant's conviction for both murder and armed robbery was appropriate.

The court found that the summing up by the judge did not prejudice the appellant's case, as it was consistent with the evidence presented and did not unfairly influence the jury. The court also determined that the prosecutor's address was not unduly prejudicial, as it was a fair summation of the evidence and did not improperly influence the jury. The court concluded that the evidence of other offences was admissible and not unduly prejudicial, as it was relevant to the appellant's involvement in the crime and did not unfairly prejudice the appellant. Lastly, the court found that the double punishment issue was not applicable in this case, as the convictions for murder and armed robbery were separate and distinct offences.

The appeal was dismissed, and the conviction and sentence imposed by the trial court were upheld. The appellant's arguments were found to be without merit, and no errors were identified in the trial or sentencing process that would warrant a change in the outcome. The court's decision affirmed the trial court's handling of the case and the appropriate application of the law in this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Before considering any of the grounds it is necessary to set out in summary the account given by Wigney of the appellant’s involvement with the weapon used in the robbery and the robbery itself.Evidence of Wigney In brief Wigney’s evidence was that the pistol used in the robbery had been purchased from a person named Dushka to whom he and the appellant would sell stolen goods. The appellant and another person were present at the time of the purchase that was made using stolen gold ingots. The weapon came with two bullets, one in the chamber and one in the clip. They were shown that the gun was loaded. Some time later Wigney was staying at the appellant’s flat when he picked the weapon off a dresser in the bedroom of the appellant’s flatmate. As he did so, the pistol discharged. The appellant was present in the flat at the time and heard the discharge. On 19 July 2001 Wigney was staying at the appellant’s flat. He, the appellant and a man name Riach were driving in the appellant’s vehicle when they decided to rob the Burwood Hotel. The appellant went to steal a vehicle and took with him tools including a slide hammer and screwdriver. He was absent for about 30 minutes and returned with a vehicle. They drove to the hotel but it was closed. They dumped the stolen vehicle and went in the appellant’s vehicle to premises of an acquaintance in Petersham. On their way they saw a hotel open and decided to rob it. When they arrived at Petersham, Riach complained of feeling ill and remained there. The appellant and Wigney left in the appellant’s vehicle. They parked in a street in order to steal another vehicle to use as a getaway vehicle. There was a bag in the appellant’s Land Rover in which were tools. The pistol was in a compartment used to change the tyres. The clip was separate from the pistol and had bullets inside it. They put the weapon in the bag that also contained a kitchen carving knife. They took the bag, balaclavas, a beanie and sunglasses. They eventually found a vehicle to steal and drove it to the vicinity of the hotel. After they parked the vehicle, the appellant and Wigney donned their disguises. The following then took place:“Gary [the appellant] just said that we should wipe down the gun because most of us that had handled it handled it that night and beforehand just to make sure there were no prints on it and the same with the bullets and the magazine.”The appellant took a rag and wiped the gun. He then put the magazine clip in the pistol. It was decided that Wigney would carry the weapon and the appellant would take the money. The appellant was armed with the kitchen knife in one hand and a garbage bag in the other.Issues at the trial As the appellant never gave a version of the events of the robbery to police or the jury, it is necessary to have regard to the course of the trial to understand what facts were in dispute. The Crown in opening its case to the jury in effect recounted the evidence that it expected would be given by Wigney about the appellant’s involvement with the gun, including his presence at the time of purchase, the discharge of the weapon by Wigney in his unit and the appellant wiping the gun and bullets to remove fingerprints. Defence counsel did not open to the jury.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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