Smith v The King - [2022] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0120

JESSE SMITH	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, McLEISH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2022
DATE OF JUDGMENT:	8 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 268
JUDGMENT APPEALED FROM:	DPP v Smith (Ruling No. 1) [2021] VCC 1544; DPP v Smith (Ruling No. 2) (Unreported, County Court of Victoria, 29 September 2021, Judge Riddell); [2022] VCC 1177 (Judge Cahill)

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CRIMINAL LAW – Appeal – Conviction – Burglary – Arson – Whether judge erred in admitting photo board identification evidence – Whether judge erred in admitting tendency evidence – Whether verdict unsafe and unsatisfactory – Leave to appeal refused.

Evidence Act 2008 ss 97, 101, 137.

TL v The King (2022) 96 ALJR 1072, applied; THDv The Queen (2010) 200 A Crim R 106, R v Dickman (2017) 261 CLR 601, Hughes v The Queen (2017) 263 CLR 338, discussed.

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Counsel
Applicant:		Mr P Smallwood and Ms K Foote
Respondent:		Mr J McWilliams and Mr L McAuliffe
Solicitors
Applicant:	David Barrese and Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with Taylor JA.

McLEISH JA:

I agree with Taylor JA.

TAYLOR JA:

Introduction and summary

On 7 July 2022, a County Court jury found the applicant guilty of burglary (Charge 1) and arson (Charge 2).
Both charges related to a fire which destroyed the home of Rachel Donoghue,[1] the applicant’s ex-partner, in the very early hours of 1 January 2020. In short, it was alleged at trial that the applicant had entered Ms Donoghue’s home without permission and with intent to commit arson, and thereafter did.
[1]A pseudonym.
The applicant seeks leave to appeal against his conviction on three grounds:
Ground 1: The trial miscarried by reason of the learned trial judge’s failure to exclude a ‘photo-board identification’ of the applicant.
Ground 2: The trial miscarried by reason of the admission of tendency evidence, namely prior incidents of property damage by the accused.
Ground 3: The verdict of the jury was not reasonable and could not be supported having regard to the evidence.
For the reasons that follow, leave to appeal should be refused.

The prosecution case at trial

Ms Donoghue and the applicant commenced an intimate relationship in 2017. Although they did not live together, the applicant spent increasing amounts of time at Ms Donoghue’s home in Wodonga, where she lived with her young daughter.
In 2019 there were two incidents in which the applicant damaged Ms Donoghue’s property after becoming angry with her. On 13 July 2019 the applicant used his fist to punch a wall in Ms Donoghue’s home, causing damage to it. He also threw a television remote control at a wardrobe, causing it to crack. On 13 October 2019 Ms Donoghue left her home following an argument with the applicant. He then sent her abusive and threatening text messages, including threats to smash…

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 v The King

Details

AGLC: Smith v The King [2022] VSCA 268
Case: [2022] VSCA 268
Decision Date: 8 December 2022

CaseChat Overview and Summary

The appellant, Smith, appealed against his conviction for burglary and arson, arguing that the trial judge erred in admitting certain evidence. The case was heard in the High Court of Australia. Smith contended that the trial judge erred in admitting photo board identification evidence and tendency evidence, and that the verdict was therefore unsafe and unsatisfactory.

The legal issues before the court were whether the trial judge erred in admitting the photo board identification evidence and the tendency evidence, and whether the verdict was unsafe and unsatisfactory. The court had to consider the relevant provisions of the Evidence Act 2008 and the applicable case law. The court needed to determine if the judge's decision to admit the evidence was correct and whether the admission of such evidence affected the safety and satisfaction of the verdict.

The court found that the trial judge did not err in admitting the photo board identification evidence and the tendency evidence. The court held that the judge's decision was in accordance with the relevant provisions of the Evidence Act 2008 and the applicable case law. The court also found that the verdict was safe and satisfactory, and therefore the appeal was dismissed. The court relied on the decisions in TL v The King, THD v The Queen, R v Dickman, and Hughes v The Queen to support its reasoning.

No orders were made as the appeal was dismissed.

Orders