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Smart v Tasmania

Smart v Tasmania

Case [2013] TASCCA 15 23 December 2013

Statutory Interpretation

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[2013] TASCCA 15

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Smart v Tasmania [2013] TASCCA 15

PARTIES: SMART, Jamie Peter
v

STATE OF TASMANIA

FILE NO:  1025/2012
DELIVERED ON:  23 December 2013
DELIVERED AT:  Hobart
HEARING DATE:  1, 2 October 2013
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage of justice – Misdirection or non-direction – Misdirection – Reasonable doubt – Examination of doubt suggested.

Graham v R (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191; Ladd v R (2009) 27 NTLR 1, followed.

Aust Dig Criminal Law [3466]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage of justice – Misdirection or non-direction – Non-direction – Conduct of accused after two crimes committed – Possible inference of consciousness of some wrongdoing – Edwards direction not given.

Edwards v R (1993) 178 CLR 193, distinguished.
Woon v R (1964) 109 CLR 529, referred to.
Aust Dig Criminal Law [3470]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Murder – Circumstantial evidence – Guilty verdict open to jury only if unchallenged expert evidence rejected.

Shepherd v R (1990) 170 CLR 573; M v R (1994) 181 CLR 487; Whitehorn v R (1983) 152 CLR 657; Chamberlain v R (No 2) (1984) 153 CLR 521; Morris v R (1987) 163 CLR 454; Chidiac v R (1991) 171 CLR 432, referred to.
Aust Dig Criminal Law [3475]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler
             Respondent:  A R Jacobs, Y Prenc
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASCCA 15
Number of paragraphs: 112

Serial No 15/2013
File No 1025/2012

JAMIE PETER SMART v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  BLOW CJ
  WOOD J
  PEARCE J
  23 December 2013

Orders of the Court

Appeal allowed.

Convictions and sentence quashed.

New trial of count 1 on the indictment.

Verdict of acquittal substituted on count 2 of the indictment.

Serial No 15/2013
File No 1025/2012

JAMIE PETER SMART v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
23 December 2013

Jamie Peter Smart was found guilty by a jury of one count of causing grievous bodily harm and one count of murder. On both counts he was jointly charged with Rhys Louis Gardner. Mr Gardner was also found guilty.
In February 2011 Shayne Waller lived in Unit 7 in Block A of the unit complex at Stainforth Court, near Cornelian Bay in Hobart. There are four similar blocks in the complex. Block A is the most easterly and separated by Stainforth Court from the other three, which are all adjacent to…

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 Smart v Tasmania

Details

AGLC: Smart v Tasmania [2013] TASCCA 15
Case: [2013] TASCCA 15
Decision Date: 23 December 2013

CaseChat Overview and Summary

The appeal in *Smart v Tasmania* was heard by the Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Wood and Pearce JJ. The case concerned an appeal against convictions for murder and another offence. The appellant argued that the verdicts were unreasonable or unsupportable having regard to the evidence, and that a miscarriage of justice had occurred.

The central legal issues before the Court were whether the jury's verdicts were unsafe and unsatisfactory, and whether the trial judge had failed to adequately direct the jury on the concept of reasonable doubt, particularly in the context of circumstantial evidence. The Court also considered whether the judge's directions regarding the conduct of the accused after the commission of the alleged crimes were appropriate, and whether the absence of an *Edwards* direction constituted a miscarriage of justice.

The Court reasoned that the evidence presented in support of the murder charge was inadequate and lacked sufficient probative force to sustain a guilty verdict, especially when considering the expert evidence. The jury could only have reached its guilty verdict by rejecting unchallenged expert testimony. Regarding the second count, the Court found that while the conduct of the accused after the crimes might suggest some consciousness of wrongdoing, this alone did not justify a conviction, and the absence of an *Edwards* direction, in the circumstances, did not amount to a miscarriage of justice.

Consequently, the Court allowed the appeal, quashed the convictions and sentence, ordered a new trial for the first count on the indictment, and substituted a verdict of acquittal on the second count.

Orders

Orders of the court

1. Appeal allowed.

2. Convictions and sentence quashed.

3. New trial of count 1 on the indictment.

4. Verdict of acquittal substituted on count 2 of the indictment.

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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Citations

Smart v Tasmania [2013] TASCCA 15

Most Recent Citation

The King v Ashley [2024] NTSC 14

Cases Citing This Decision

The King v Ashley [2024] NTSC 14
Citation 1

…n [2021] NTCCA 9, Melrose v The Queen [1989] 1 Qd R 572, Mol v The Queen [2017] NSWCCA 76, Power v The Queen (1996) 87 A Crim R 407, Smart v Tasmania [2013] TASCCA 15, The Queen v Burton (2013) 237 A Crim R 238, The Queen v Cook [2004] NSWCCA 52, The Queen v Grant [2016] NTSC 54, The Queen v Hoeksema [2018] NTSC 59…
Rajakovic v The State of Western Australia [2020] WASCA 98
Citation 2 (Para 16)

…have been consistent with the views expressed by the Victorian Court of Appeal in R v Ciantar (above) at [74]–[104]. [91] Smart v State of Tasmania [2013] TASCCA 15 ( Smart ). [92] Smart [93] (Blow CJ, Wood & Pearce JJ).…
Smillie v Tasmania [2017] TASCCA 26
Citation 3

…[2017] HCA 36; RWB v The Queen [2010] NSWCCA 147, 202 A Crim R 209, followed. Graham v The Queen [2000] TASSC 153, 116 A Crim R 108; Smart v Tasmania [2013] TASCCA 15, distinguished. Aust Dig Criminal Law [2717]…
Russell v Tasmania [2016] TASCCA 23
Citation 4 (Para 1)

…er appeals against conviction, the principles as to an appeal such as the present were restated in a joint judgment of this Court in Smart v Tasmania [2013] TASCCA 15 at [49]-[50] in the following terms: "49 With that in mind, the question for this Court is whether the verdict of the jury was 'unsafe and unsatisfac…
Marshall and Richardson v Tasmania [2016] TASCCA 21
Citation 5 (Para 5)

…In Smart v Tasmania [2013] TASCCA 15, Blow CJ, Wood and Pearce JJ said in a rare joint judgment of the Court of Criminal Appeal at [70]-[78]: "70 It has long been recognised that it is inadvisable for a trial judge to elaborate upon the concept of reasonable doubt because it requires no explanation, and because of…
Edwards v Tasmania [2016] TASCCA 7
Citation 6 (Para 1)

…The principles as to an appeal such as the present were restated in a joint judgment of this Court in Smart v Tasmania [2013] TASCCA 15 at [49]-[50] in the following terms: "49 With that in mind, the question for this Court is whether the verdict of the jury was 'unsafe and unsatisfactory'. In M v R (1994) 181 CLR…

See all citing cases →

Cases Cited

Ladd v The Queen [2009] NTCCA 6
Citation 1 (Para 5)

…cide whether it is a reasonable doubt: Graham v R (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191, King CJ at 195, Johnston J at 220; Ladd v R (2009) 27 NTLR 1 at [144] – [215]. As stated by Windeyer J in Thomas at 605 – 606 "The task of the jury in a criminal case is to examine the evidence, bearing in mind…
R v Ciantar [2006] VSCA 263
Citation 2 (Para 7)

…In R v Ciantar (2006) 16 VR 26 at [40], the Victorian Court of Appeal said: "We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the e…
Festa v The Queen [2001] HCA 72
Citation 3 (Para 2)

…ality. Sometimes a danger of unfair prejudice exists because of a risk that a piece of evidence will be given more weight than it deserves: Festa v R (2001) 208 CLR 593 at [51]. In determining the weight to be attached to this piece of evidence, it would be appropriate to take into account the following possibilities…
Krakouer v The Queen [1998] HCA 43
Citation 4 (Para 13)

…and the conviction must be quashed and a new trial ordered: Wilde v R (1988) 164 CLR 365, per Brennan, Dawson and Toohey JJ at 373; Krakouer v R (1988) 194 CLR 202, per McHugh J at 226; Graham per Cox CJ at [20] and Underwood J at [69].…
McAuliffe v The Queen [1995] HCA 37
Citation 5 (Para 5)

…In McAuliffe v R (1995) 183 CLR 108, which concerned the doctrine of common purpose at common law, the High Court said, at 114: "Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The un…
M v the Queen [1994] HCA 63
Citation 6 (Para 17)

…With that in mind, the question for this Court is whether the verdict of the jury was "unsafe and unsatisfactory". In M v R (1994) 181 CLR 487 at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was uns…
Edwards v The Queen [1993] HCA 63
Citation 7 (Para 2)

…When the Crown relies upon post-offence conduct as evidence of guilt, the circumstances sometimes require a direction in accordance with Edwards v R (1993) 178 CLR 193, to the following effect: · The jury must first make a finding as to whether the alleged conduct occurred. · The jury may treat the conduct as evidenc…
Chidiac v The Queen [1991] HCA 4
Citation 8 (Para 17)

…ound to act and to set aside a verdict based upon that evidence ( Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether…
Shepherd v The Queen [1990] HCA 56
Citation 9 (Para 14)

…appellant guilty of murder unless they were satisfied beyond reasonable doubt that the mark was made by a shoe other than Mr Gardner's: Shepherd v R (1990) 170 CLR 573.…
Doney v The Queen [1990] HCA 51
Citation 10 (Para 6)

…"Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded": Doney v R (1990) 171 CLR 207 at 211. One of the hypotheses that needed to be considered in this case was the hypothesis that Mr Gardner alone murdered Mr Williams, after the appellant had left Unit…
Pahuja v The Queen [1990] HCATrans 177
Citation 11 (Para 5)

…direct the jury that they should analyse a doubt in order to decide whether it is a reasonable doubt: Graham v R (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191, King CJ at 195, Johnston J at 220; Ladd v R (2009) 27 NTLR 1 at [144] – [215]. As stated by Windeyer J in Thomas at 605 – 606 "The task of the jury…
Wilde v the Queen [1988] HCA 6
Citation 12 (Para 13)

…t there is no room for the "proviso" – s402(2) of the Code – to be applied, and the conviction must be quashed and a new trial ordered: Wilde v R (1988) 164 CLR 365, per Brennan, Dawson and Toohey JJ at 373; Krakouer v R (1988) 194 CLR 202, per McHugh J at 226; Graham per Cox CJ at [20] and Underwood J at [69].…
Morris v the Queen [1987] HCA 50
Citation 13 (Para 18)

…accused could have been convicted: Whitehorn v R (1983) 152 CLR 657 at 660, 686; Chamberlain (No 2) (above) at 532, 601, 604, 618 – 619; Morris v R (1987) 163 CLR 454 at 461, 473; Chidiac v R (above) at 442 – 443.…
Chamberlain v The Queen (No 2) [1984] HCA 7
Citation 14

…Shepherd v R (1990) 170 CLR 573; M v R (1994) 181 CLR 487; Whitehorn v R (1983) 152 CLR 657; Chamberlain v R (No 2) (1984) 153 CLR 521; Morris v R (1987) 163 CLR 454; Chidiac v R (1991) 171 CLR 432, referred to. Aust Dig Criminal Law [3475]…
Whitehorn v the Queen [1983] HCA 42
Citation 15 (Para 18)

…set aside as unsafe or unsatisfactory even if, as a matter of law, there was evidence upon which the accused could have been convicted: Whitehorn v R (1983) 152 CLR 657 at 660, 686; Chamberlain (No 2) (above) at 532, 601, 604, 618 – 619; Morris v R (1987) 163 CLR 454 at 461, 473; Chidiac v R (above) at 442 – 443.…
White v Ridley [1978] HCA 38
Citation 16 (Para 5)

…that the person withdrawing had done. His directions were in accordance with the relevant authorities: R v Menitti [1985] 1 Qd R 520; White v Ridley (1978) 140 CLR 342; R v Wilton (1993) 63 A Crim R 359 (Zeeman J).…
Woon v The Queen [1964] HCA 23
Citation 17 (Para 6)

…Windeyer J considered that sort of situation in Woon v R (1964) 109 CLR 529, and said the following at 541 – 542: "But I think that Dr Coppel was right when he said that the inference which can be drawn from conduct and demeanour that displays a consciousness of guilt may depend upon whether there is other evidence p…
Thomas v The Queen [1960] HCA 2
Citation 18 (Para 5)

…dge must not obscure the "vital point that the accused must be given the benefit of any doubt which the jury considers reasonable": Kitto J in Thomas (1960) 102 CLR 584 . The authorities make it clear that it amounts to an error of law to direct the jury that they should analyse a doubt in order to decide whether it…
[1959] 2 QB 35 [1959] 2 QB 35
Citation 19 (Para 2)

…the Code's "directly and immediately" test and the common law's "substantial or significant cause" test as postulated by Lord Parker CJ in R v Smith [1959] 2 QB 35 at 42. If a particular individual inflicted the fatal blow or blows, each of the two tests was satisfied. This ground cannot succeed unless his Honou…

Legislation Cited

Evidence Act 2001 (TAS) 81(1)
1 mention (from Para 4)