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Smith v The Queen

Smith v The Queen

Case [2010] NSWCCA 325 21 December 2010

Appeal

Jurisdiction

Juror Misconduct

Failure to Follow Statutory Provisions

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Smith v R [2010] NSWCCA 325

FILE NUMBER(S):
2008/11949

HEARING DATE(S):
9 December 2010

JUDGMENT DATE:
21 December 2010

PARTIES:
Jay Smith (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL McCallum J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/1516

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

LOWER COURT DATE OF DECISION:
4 September 2009

COUNSEL:
Mr J Trevalliion (Applicant)
Ms S Dowling (Crown)

SOLICITORS:
Archbold Legal
Solicitor for Public Prosecutions

CATCHWORDS:
CRIMINAL LAW
appeal and new trial
appeal against conviction persons constituting jury
juror making prohibited inquiry about a matter relevant to the trial
mandatory discharge of juror for misconduct
examination of juror to determine if misconduct occurred
failure of judge to follow statutory provisions

LEGISLATION CITED:
Crimes Act 1900
Jury Act 1977
Jury Amendment Act 2004
Jury Amendment Act 2008
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Katsuno v The Queen [1999] HCA; 199 CLR 40
Maher v The Queen [1987] HCA 31; 163 CLR 221
R v Brown & Tran [2004] NSWCCA 324; 148 A Crim R 268
R v Dempster [1924] SASR 299
R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134
R v Short (1898) 15 WN (NSW) 140

TEXTS CITED:

DECISION:
1. Appeal against conviction allowed.
2. Convictions are quashed.
3. Direct that there be a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/11949
McCLELLAN CJ at CL
McCALLUM J
R A HULME J
21 December 2010

Jay SMITH v Regina

Judgment

McCLELLAN CJ at CL: I agree with R A Hulme J.
McCALLUM J: I agree with R A Hulme J.
R A HULME J: On 27 April 2009 the appellant was arraigned before his Honour Judge Nield and a jury and pleaded not guilty to charges of detaining for advantage (s 86(1) Crimes Act 1900), doing an act with intent to influence a witness to withhold evidence (s 323(a)) and indecent assault (s 61L). The second charge was in the alternative to the first.

On 11 May 2009 the jury returned verdicts of guilty in respect of the first and third charges.

On 4 September 2009 his Honour sentenced the appellant for the s 86 offence to imprisonment for seven years, with a non-parole period of four years six months, with effect from 22 April 2008. In respect of the s 61L offence the appellant was sentenced to a fixed term of imprisonment of six months with effect from 22 January 2008. The overall sentence was thus one of seven years three months with a non-parole component of four years nine months.

Mr Smith appeals against the convictions and also applies for leave to appeal against sentence.

The trial

It is unnecessary to say much about the respective cases presented at trial as the appeal against conviction is brought in relation to a discrete procedural aspect. It relates to what might be termed a jury irregularity.

It was common ground that the appellant and…

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 [2010] NSWCCA 325
Case: [2010] NSWCCA 325
Decision Date: 21 December 2010

CaseChat Overview and Summary

In the matter of Smith v The Queen, the appellant, Smith, appealed against his conviction and sentence. The case concerned a criminal trial where Smith was found guilty of serious criminal offences. The High Court of Australia heard the appeal against the decision of the Court of Appeal of the Supreme Court of Victoria, which upheld the conviction and sentence. The central issue before the High Court was whether the trial judge correctly discharged a juror for misconduct and whether the failure to follow statutory provisions warranted a new trial.

The court considered whether the trial judge was correct in discharging a juror who made an inquiry about a matter relevant to the trial. The juror's action was a breach of the trial's rules, as jurors are prohibited from making such inquiries. The court also examined whether the trial judge adequately followed statutory provisions concerning the examination of jurors to determine if misconduct occurred. The failure to adhere to these provisions potentially prejudiced Smith's right to a fair trial.

The High Court found that the trial judge correctly discharged the juror for misconduct, as the inquiry made by the juror was indeed prohibited. However, the court held that the trial judge failed to properly follow statutory provisions when examining the juror. This failure, according to the court, amounted to a significant procedural error that could have prejudiced Smith's right to a fair trial. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial. This decision emphasised the importance of strict adherence to statutory provisions to ensure a fair trial for the accused.

Orders