[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…
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CaseChat Overview and Summary
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
Orders of the court
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Background
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Evidence
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Decision
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Ratio Decidendi
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