Smith-Towns v Tasmania - [2019] TASCCA 22

[2019] TASCCA 22

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Smith-Towns v Tasmania [2019] TASCCA 22
PARTIES:	SMITH-TOWNS, Ricky Lee
v
STATE OF TASMANIA
FILE NO:	CCA 2178/2019
DELIVERED ON:	23 December 2019
DELIVERED AT:	Hobart
HEARING DATE:	12 November 2019
JUDGMENT OF:	Wood J, Martin AJ, Porter AJ
CATCHWORDS:

Criminal Law – Charge of robbery involving punching cyclist and taking his bicycle – Trial judge directions left open to the jury a basis for conviction not advanced by the Crown – Departure from particulars – Directions deficient as to the necessary findings of fact and the application of the elements of robbery to this new basis of liability – Meaning of "immediately" – Miscarriage of justice.

Criminal Code Act 1924 (Tas), ss 240(1), 311(1), 312 and 314.
R v Emery (1975) 11 SASR 169; R v Chong [2012] QCA 265, considered.
Johnson v Miller (1937) 59 CLR 467, referred to.

Aust Dig Criminal Law [3490]

REPRESENTATION:

Counsel:

Appellant: K Cuthbertson, H Phillips
Respondent: L Mason SC, L Ogden

Solicitors:

Appellant: Tasmanian Aboriginal Community Legal Service
Respondent: Director of Public Prosecutions

Judgment Number:	[2019] TASCCA 22
Number of paragraphs:	89

Serial No 22/2019

File No CCA 2178/2019

RICKY LEE SMITH-TOWNS v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL WOOD J MARTIN AJ PORTER AJ 23 December 2019
Orders of the Court (12 November 2019)

1            Appeal allowed.
2            Conviction set aside.
3            New trial.

Serial No 22/2019

File No CCA 2178/2019

RICKY LEE SMITH-TOWNS v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
WOOD J
23 December 2019

1 I agree with the reasons for judgment of Martin AJ. They reflect the reasons why I joined in the making of orders on 12 November 2019 to allow the appeal, set aside the conviction and order a retrial.
2 22/2019

File No CCA 2178/2019

RICKY LEE SMITH-TOWNS v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 23 December 2019
Introduction

2 In a trial before Brett J, the appellant was convicted by a jury of robbery. The particulars of the indictment dated 20 May 2019 were as follows:

"Particulars

Ricky Lee Smith-Towns at Ravenswood in Tasmania, on or about the 12th day of October 2018, stole a bicycle and immediately before the time of stealing the bicycle, he used violence to [the complainant], by punching him to the face, in order to obtain the bicycle."

3 The appellant appeals against the conviction on three grounds:

"(1) The trial judge erred in the circumstances of the case in not directing the jury that in order to find the appellant guilty of the crime of robbery they must be satisfied beyond reasonable doubt that the violence used or threatened to be used by the appellant occurred immediately before the time of stealing the bicycle and was used in order to obtain the bicycle.
(2) The trial judge erred in directing…

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 Smith-Towns v Tasmania

Details

AGLC: Smith-Towns v Tasmania [2019] TASCCA 22
Case: [2019] TASCCA 22
Decision Date: 23 December 2019

CaseChat Overview and Summary

The applicants, Smith-Towns and another, appealed their convictions for robbery in the Supreme Court of Tasmania. The Crown had alleged that the applicants, by punching a cyclist and taking his bicycle, had committed robbery. However, the trial judge's directions to the jury, in addition to the Crown's case, left open a basis for conviction that had not been advanced by the Crown, effectively departing from the particulars of the charge.

The central legal issues before the Full Court of the Supreme Court of Tasmania were whether the trial judge's directions to the jury were deficient, particularly concerning the necessary findings of fact and the application of the elements of robbery to the alternative basis of liability that emerged during the summing up. The Court also considered the meaning of the word "immediately" in the context of the offence of robbery and whether the directions given constituted a miscarriage of justice.

The Court reasoned that the trial judge's directions had introduced a new basis for conviction not put forward by the Crown, thereby departing from the particulars of the charge. This departure, coupled with directions that were deficient in explaining the required factual findings and the application of the elements of robbery to this unadvanced basis of liability, meant the jury was not properly guided. The Court found that the directions were inadequate in explaining the meaning of "immediately" in relation to the taking of the bicycle and the use of force, and that this deficiency, along with the departure from particulars, resulted in a miscarriage of justice. Consequently, the convictions were quashed.

Orders