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Smith v The Queen

Smith v The Queen

Case [1992] HCATrans 285 1 October 1992

Statutory Interpretation

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl53 of 1991
B e t w e e n -
ARTHUR STANLEY SMITH

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

DAWSON J TOOHEY J GAUDRON J

Smith

1/10/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 1 OCTOBER 1992, AT 9.46 AM

MR G.R. JAMES, OC:

May it please the Court, I appear for

the applicant with my learned friend,

MR S.J. ODGERS. (instructed by Coode, Scott &
Corry)

MR R.O. BLANCH, QC:

May it please the Court, I appear for

the Crown with my learned friend, MR W.G. ROSER.
(instructed by S.E. O'Connor, Solicitor for Public
Prosecutions)

DAWSON J: Yes, Mr James.

MR JAMES:

Your Honours have the benefit of a written

summary of the applicant's argument which is to be
found at page 14 to page 17 of the appeal book.
The summary of argument for the respondent appears

at pages 19 to 20 of the appeal book. The short
summary of the facts appears at page 10, paragraph
5 of the affidavit in support of the application.
There is a necessity to seek an extension of

time and that is referred to in the affidavit of
the applicant's solicitor, referred to in the
appeal book.

DAWSON J:

If you would just proceed with the application

proper.

MR JAMES:

May it please the Court.

Your Honours, the

essence of the matter in this case involves not the
question of a joint enterprise as was discussed in
Mohan's case in which, clearly enough, there is a necessity to prove the intent of the participants in engaging in a violent attack leading to a
murder.
The case against this present applicant was

put on that basis and also on another basis, and it is the second basis which attracts the application;

that is, that it was put in essence and in summary,

and I will take Your Honours to the various
extracts which set out the way in which that case
was put, that it was enough if the applicant was
engaged in an unlawful common purpose and he
himself foresaw as a possibility, contemplated
however one puts the formula, as a possibility that
his co-accused would commit the murder, and that in
the context of a fight which arose somewhat
spontaneously after a night in which the applicant
had been drinking.
The cases that are referred to in the

respondent's answering summary and that were
referred to by the Court of Criminal Appeal as to
the appropriateness of putting the case on such a
basis can be seen set out at page 19 paragraph 2 of

Smith

1/10/92

the respondent's summary, and in the Court of
Criminal Appeal at page 115. The reasoning of the
Court of Criminal Appeal appears commencing at page
115 at line G through to page 116 where Chan Wing-
Siu and Davies are…

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 Queen

Details

AGLC: Smith v The Queen [1992] HCATrans 285
Case: [1992] HCATrans 285
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Smith, sought leave to appeal against a decision of the Court of Criminal Appeal. The Crown was the respondent. The dispute concerned the basis upon which the applicant's criminal liability for murder was established.

The central legal issue before the High Court was whether the trial judge had erred in directing the jury that it was sufficient for the applicant to be found guilty of murder if he was engaged in an unlawful common purpose and foresaw as a possibility that his co-accused would commit the murder. The applicant argued that this direction amounted to an extension of established principles regarding joint enterprise and common purpose, particularly as articulated in cases like *Johns v Reg*.

The applicant contended that the direction effectively replaced the necessary intent for murder with a subjective contemplation of a possibility, simply by virtue of being a party to an unlawful enterprise. This, it was argued, was a departure from the traditional understanding of common purpose where parties contemplate the commission of a further crime as part of their design, or possess a conditional or contingent intent. The applicant submitted that the direction improperly lowered the threshold for proving the intent element of murder.

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