Smith v The Queen
[2003] WASCA 57
•25 MARCH 2003
SMITH -v- THE QUEEN [2003] WASCA 57
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 57 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:118/2002 | 4 DECEMBER 2002 | |
| Coram: | MALCOLM CJ STEYTLER J TEMPLEMAN J | 25/03/03 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Appeal against sentence allowed | ||
| B | |||
| PDF Version |
| Parties: | CLAYTON MICHAEL SMITH THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction Retrial after jury unable to agree Whether entitled to proceed on different indictment Whether uncharged offences part of res gestae Whether prejudicial to lead evidence of offence for which accused was acquitted at original trial Crown appeal against sentence Whether sentence disproportionate to gravity of offence |
Legislation: | Nil |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Harriman v The Queen (1989) 167 CLR 590 King v R (1986) 162 CLR 423 Maxwell v R (1996) 135 ALR 1 O'Leary v The King (1946) 73 CLR 566 R v Collins, ex parte Attorney-General [1996] 1 Qd R 631 R v Storey (1978) 140 CLR 364 R v Wilkes (1948) 77 CLR 423 The Queen v Carroll [2002] HCA 55 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SMITH -v- THE QUEEN [2003] WASCA 57 CORAM : MALCOLM CJ
- STEYTLER J
TEMPLEMAN J
- Appellant
AND
THE QUEEN
Respondent
- Appellant
AND
CLAYTON MICHAEL SMITH
Respondent
(Page 2)
Catchwords:
Criminal law and procedure - Appeal against conviction - Retrial after jury unable to agree - Whether entitled to proceed on different indictment - Whether uncharged offences part of res gestae - Whether prejudicial to lead evidence of offence for which accused was acquitted at original trial
Crown appeal against sentence - Whether sentence disproportionate to gravity of offence
Legislation:
Nil
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Category: B
Representation:
CCA 118 of 2002
Counsel:
Appellant : Ms C S Amsden
Respondent : Mr K P Bates
Solicitors:
Appellant : Legal Practice Board
Respondent : State Director of Public Prosecutions
(Page 3)
CCA 122 of 2002
Counsel:
Appellant : Mr K P Bates
Respondent : Ms C S Amsden
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid of Western Australia
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Harriman v The Queen (1989) 167 CLR 590
King v R (1986) 162 CLR 423
Maxwell v R (1996) 135 ALR 1
O'Leary v The King (1946) 73 CLR 566
R v Collins, ex parte Attorney-General [1996] 1 Qd R 631
R v Storey (1978) 140 CLR 364
R v Wilkes (1948) 77 CLR 423
The Queen v Carroll [2002] HCA 55
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: In my opinion, the appellant's appeal against his conviction on 20 June 2002, after a trial by jury, of the offence of causing grievous bodily harm to the complainant with intent to disable him should be dismissed. I have reached this conclusion for the reasons to be published by Templeman J, with which I am in entire agreement.
2 The learned trial Judge sentenced the offender to imprisonment for 6 years. The Crown has appealed against that sentence on the ground that the sentence failed to adequately reflect the very serious nature and circumstances of the offence. The particulars of that ground are set out in the reasons to be published by Templeman J. In my opinion, having regard to the seriousness of the wound inflicted by the offender on the complainant in the context of the circumstances recounted by Templeman J, I am of the opinion that the sentence of 6 years was quite inadequate. I agree with Templeman J for the reasons stated by his Honour that this was a very serious example of this offence. In my opinion, having regard to all of the relevant circumstances, the objective circumstances of the offence would have warranted a sentence of imprisonment for 11 years which I would reduce to 8 years on account of the mitigating circumstances referred to by Templeman J and the fact that this is a Crown appeal. That sentence should be backdated to commence on 23 July 2001 when the offender was taken into custody.
3 STEYTLER J: I have had the advantage of reading the reasons for decision of Templeman J. For those reasons, with which I am in entire agreement, the appeal against conviction should be dismissed and the Crown's appeal against sentence should be upheld, resulting in the imposition of a sentence of 8 years' imprisonment, backdated to commence on 23 July 2001 when the offender was taken into custody, with eligibility for parole.
4 TEMPLEMAN J: The applicant, Clayton Michael Smith seeks to appeal against his conviction, on 20 June 2002, after trial by jury, on a charge of causing grievous bodily harm with intent to disable. He was sentenced to 6 years' imprisonment for that offence and to imprisonment of 1 month concurrently with that sentence, for stealing a motor vehicle.
5 The Crown appeals against the sentence of 6 years' imprisonment on the grounds of inadequacy.
(Page 5)
Mr Smith's appeal
Background
6 The charge against Mr Smith arose out of the events of 23 November 2000 at the complainant's house at Maddington. The complainant is a homosexual. A few days previously, on 18 November, he had contacted an escort agency in order to obtain the services of a visiting male prostitute. Mr Smith was the person provided by the agency. Mr Smith went to the complainant's house on the morning of 18 November. However, because Mr Smith had been working for the previous 12 hours, he told the complainant he did not wish to engage in any sexual activity, although the complainant had paid in advance.
7 The complainant and Mr Smith then arranged that the latter would visit the complainant at his home on some later occasion. In due course, arrangements were made for Mr Smith to visit the complainant on the evening of 23 November. On the Crown case, Mr Smith asked the complainant whether he (Smith) could bring his girlfriend with him because "she liked to watch". The complainant was adamant that he did not want Mr Smith's girlfriend to be present.
8 On the Crown case, Mr Smith was accompanied by his girlfriend in the taxi which he took to the complainant's house. However, the girlfriend got out of the taxi some 300 metres from the complainant's house, where Mr Smith arrived at about 11.30 pm.
9 It is not clear precisely what happened after Mr Smith arrived. Undoubtedly, there was a struggle between the two men. During the course of the struggle, Mr Smith inflicted a stab wound to the complainant's leg and another to his neck. The wound to the leg was not serious. However, the neck wound, which was about 10 cm in length, was almost fatal. The weapon used by Mr Smith was a knife, which, apparently, he brought with him.
10 Following the infliction of the wounds, Mr Smith left the complainant's house. On the Crown case, he took the complainant's house and car keys (which were on the same key ring) locked the outer security door on the outside and drove off in the complainant's car. Mr Smith abandoned the car under a bridge at Guildford where it was discovered by the police later that night. The police informed the complainant's parents, who then attended at their son's house. By that stage, the complainant had lost a very substantial amount of blood and was close to death. As a result
(Page 6)
- of the timely intervention of his parents, the complainant received emergency medical attention which saved his life.
11 Mr Smith was apprehended and was subsequently charged. An indictment was presented which contained the following counts:
1. On 23 November 2000 at Maddington, Clayton Michael Smith unlawfully wounded (the complainant).
2. And further, that on the same date and at the same place Clayton Michael Smith with intent to do some grievous bodily harm to (the complainant) unlawfully did grievous bodily harm to (him).
12 On 17 May 2002 Mr Smith was tried by a District Court Judge and jury. He contended that on the night in question, the complainant had attacked him and that he had acted in self-defence in inflicting the wound which was the subject of count 1.
13 In relation to count 2, Mr Smith admitted that he had caused grievous bodily harm to the complainant and did not contend that he had acted in self-defence. He accepted that he inflicted the neck wound after he had overcome the complainant. However, he said he had no intention of causing grievous bodily harm but that, in substance, he had stabbed blindly, in the heat of the moment.
14 Mr Smith was found not guilty by a majority verdict on count 1. The jury was unable to reach a verdict in relation to count 2.
15 A retrial on count 2 was due to commence on 20 June 2002. On 18 June, the Director of Public Prosecutions presented a fresh indictment. It was in the following terms:
"On 23 November 2000 at Maddington Clayton Michael Smith, with intent to disable (the complainant), unlawfully did grievous bodily harm to (him)."
- Thus, it was alleged that Mr Smith caused grievous bodily harm to the complainant, not with the intent of causing grievous bodily harm (as had been alleged previously) but with intent to disable.
16 After a three day trial, Mr Smith was convicted of the offence alleged against him in the new indictment and was duly sentenced.
(Page 7)
The grounds of appeal
17 In his notice of appeal, Mr Smith contends that the trial process was unfair to him and resulted in a miscarriage of justice. There are eight grounds. I deal with each in turn.
Ground 1
"The Crown presented a different Indictment on a re-trial after a previous jury was unable to reach a verdict."
18 It is a matter for the prosecuting authorities to decide what charge, or charges, are to be brought against an accused person. In R v Collins, ex parte Attorney-General [1996] 1 Qd R 631, at 639, McPherson JA and Lee J said that the wide range of considerations involved in making such decisions "some of which are not properly the subject of judicial scrutiny" persuaded them that this was "essentially an executive, and not a judicial function". Fitzgerald P, agreed with their Honours in relation to this part of their reasons.
19 Although McPherson JA and Lee J were of the view that the Court retained a discretion to interfere with the decision of a prosecuting authority, the High Court appears to have adopted a more restrictive view. In Maxwell v R (1996) 135 ALR 1, at 26, Gaudron and Gummow JJ said:
"It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what."
20 Dawson and McHugh JJ were of the view (at p 9) that the Court should not interfere in a decision to charge an accused person in a particular way "save to prevent an abuse of process". Toohey J held to the same effect (at p 10): that the Court should interfere only to prevent an abuse of its process – for example, "if the prosecuting authority were seen to be acting in an irresponsible manner".
(Page 8)
21 In the present case, counsel for Mr Smith did not contend that the change in the indictment constituted an abuse of process. But at the start of the trial, counsel submitted, that the change of intent on the indictment was unfair. In considering that submission, the learned trial Judge asked counsel:
" … Is there any specific prejudice in defending the matter whether the intent is said to do some grievous bodily harm or the intent is said to be disable? Does it make any difference to the trial process? I mean, the defence was, 'Yes, I've stabbed him, but I didn't intend to …'." (AB16)
22 In answer, counsel explained that Mr Smith accepted he had caused the grievous bodily harm to the complainant. His defence was that he had no intention "to do anything at all".
23 In the light of that response, the learned Judge found it unnecessary to hear from counsel for the Crown before delivering short reasons in which his Honour held that the Crown was entitled to proceed on the fresh indictment. The Judge pointed out that counsel had been unable to identify any prejudice to Mr Smith as a result of the amendment.
24 Had the Judge asked the prosecutor the reason for the amendment, his Honour would no doubt have been told that the Crown case had changed since the first trial. The Crown now intended to allege that Mr Smith had gone to the complainant's house on the second occasion, with the intention of robbing him. It was to be alleged that Mr Smith had caused grievous bodily harm to the complainant with the intention of disabling him from pursuing Mr Smith. This emerged shortly afterwards, when the prosecutor opened the case to the jury.
25 The prosecutor also told the jury that Mr Smith had been accompanied by his girlfriend in the taxi he had taken to the complainant's house.
26 A little later, the prosecutor said:
"What was to take place in the next 30 minutes might well lead you to conclude that the reason why (Mr Smith) was insistent on coming around that night with his girlfriend was not to honour the agreement that had been reached the previous Saturday but to rob (the complainant)."
(Page 9)
- The prosecutor went on to refer to the fact that the complainant had paid for Mr Smith's taxi and that he and the complainant then came into the house. The prosecutor said:
"When he paid the taxi driver (the complainant) had taken out his wallet. He then put his wallet back on the kitchen bench where he normally leaves it, together with his keys to the house. The keys to his house and his car keys were all on the one ring, all with the same bunch of keys."
"Notwithstanding these life-threatening injuries or one in particular to his right-hand side throat that (Mr Smith) had caused to (the complainant), (Mr Smith) did nothing to help him. To the contrary he did everything to prevent anybody discovering what he had just done. He took (the complainant's) keys and it would appear also his wallet, turned off all the lights inside the house, went out the front door and then used the key to deadlock it. … He got into (the complainant's) car that was parked in the carport and drove away. The Crown says there is also evidence to suggest that his girlfriend came on the scene at some stage and drove off in the car with him."
28 At the conclusion of his address, the prosecutor said:
"This was, the Crown says you may well find, a robbery that went wrong. It is the Crown's case it was (Mr Smith) not (the complainant) who produced a knife and (Mr Smith) wasn't expecting the resistance that (the complainant) put up. In the end he caused that injury to (the complainant's) neck to enable him to get away and prevent (the complainant) stopping him, and there was no doubt at all that (the complainant) was completely disabled after he was stabbed by (Mr Smith) through the throat."
29 Mr Smith's counsel did not object to the way in which the prosecutor opened the Crown case. In my view, no such objection would have been justified. I hold that view, even though the Crown case involved allegations of criminal offences on the part of Mr Smith, with which he had not been charged.
(Page 10)
30 The relevant principle is to be found in the decision of the High Court in O'Leary v The King (1946) 73 CLR 566. There, in a passage which has been applied frequently, Dixon J (at p 577) held that evidence is admissible of circumstances surrounding the offences charged if that evidence is necessary to a proper understanding of the offence alleged. The evidence is admissible, if, without it:
"the transaction of which the alleged (offence) formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event."
- Depending on the circumstances, such evidence may either be classified as similar fact evidence or as part of the res gestae: see Harriman v The Queen (1989) 167 CLR 590. In that case, McHugh J stressed the importance of differentiating between these two categories. That is because circumstantial similar fact evidence which discloses other criminal conduct on the part of the accused will not be admissible unless its probative force transcends its prejudicial value. However, as McHugh J pointed out (at p 633) if evidence which discloses other criminal conduct is "characterised as part of the transaction which embraces the crime charged" – that is, as part of the res gestae – it is not subject to any further condition of admissibility.
31 In the present case, in my view, the events of the short period between Mr Smith entering the complainant's house on the night of 28 November 2000 and leaving the complainant there shortly afterwards, are part of the res gestae. That being so, evidence that Mr Smith brought a knife with him to the complainant's house, that he stole the complainant's wallet and that he was in company with his girlfriend shortly before entering and shortly after leaving the house, was all admissible.
32 In my view, the fact that these matters were raised for the first time at a re-trial is of no consequence. That conclusion must follow from the principle, to which I have already referred, that decisions about the nature of a charge to be preferred and the evidence to be presented in support of it, are essentially executive in their character.
33 Counsel for Mr Smith submitted to this Court that, as a matter of fairness, the Crown must not, at a re-trial, supplement a case that was defective at the first trial. Counsel relied on R v Wilkes (1948) 77 CLR 423. In King v R (1986) 162 CLR 423, Dawson J, at p 433 cited Wilkes (supra) for the proposition that:
(Page 11)
- "The discretion to order a new trial should not be exercised when the evidence in the Court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective."
- But that proposition has no application in the present case: it applies only to a re-trial following the quashing of a conviction. That is a matter for judicial discretion, whereas the decision to proceed to a re-trial after a jury has failed to agree, is a matter for the executive.
34 In my view, for the reasons given above, this ground must fail.
Grounds 2 – 5
"2. The Crown subjected the Applicant to double jeopardy by leading evidence in regard to the charge of unlawful wounding of which he was found to be not guilty.
3. The Crown submitted that it was not relevant to the jury's consideration of the charge of grievous bodily harm with intent to disable that the Applicant was acquitted of the charge of unlawful wounding.
4. The trial Judge initially refused to allow any evidence of the acquittal on the charge of unlawful wounding.
5. The trial Judge reversed his initial view of that decision but effectively denied the Applicant the benefit of the acquittal by refusing to allow evidence in regard to the defence."
35 I have taken these grounds together because, in substance, they form a single ground.
36 As I have already noted, at the first trial, Mr Smith defended the unlawful wounding charge on the basis of self-defence. At the start of the re-trial, Mr Smith's counsel submitted that Mr Smith should not be deprived of the benefit of that acquittal. Counsel relied on R v Storey (1978) 140 CLR 364 . There, Mason J held (at p 396) that:
"Once a person is acquitted of an offence, the acquittal must be recognised fully and without qualification for all purposes in criminal proceedings."
(Page 12)
- That was the majority view. Barwick CJ, who dissented, held (at p 372) that:
"No inference can be drawn from the acquittal that any particular fact was found or negative by the jury so as to make that fact a res judicatam."
"Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial. … For all that is known, the verdict of acquittal may be entirely unrelated to any evidence that the accused gave, or procured to be given, at trial …"
38 Applying that principle to the present case, all that could be said of the acquittal on the unlawful wounding charge, was that the Crown had not proved beyond a reasonable doubt that Mr Smith unlawfully wounded the complainant: and probably, because the Crown had not negatived the defence of self-defence beyond a reasonable doubt.
39 The position reached in the course of argument at the start of the re-trial was that it was likely that evidence would be given of the injuries to the complainant which had been the subject of the unlawful wounding charge. That would be so, because it would be necessary for evidence to be given of the events leading up to the alleged offence of causing grievous bodily harm.
40 Mr Smith's counsel asked the trial Judge to direct the jury that Mr Smith had been acquitted of the unlawful wounding charge. His Honour said he would not do so, although it was a question which could be revisited in due course.
41 The Crown closed its case against Mr Smith at the end of the first day of the re-trial. After the jury had retired for the day, the Judge told counsel he did not propose to refer to Mr Smith's acquittal of the unlawful wounding charge "or the consequences of it". However, at the commencement of the second day of the re-trial, his Honour informed counsel that he had given some further thought to the question overnight and now considered that his preliminary view might well have been wrong.
(Page 13)
42 The Judge changed his mind because of the potential danger that the jury might equate the stabbing to the complainant's leg (which was the subject of the unlawful wounding charge) with the stabbing to his neck, which was the subject of the charge of causing grievous bodily harm with intent to disable. That being so, as his Honour said, the risk of such of a thought process might deprive Mr Smith of the benefit of the acquittal on the unlawful wounding charge. His Honour therefore ruled that evidence of the acquittal could be adduced, and that it would be the subject of an appropriate direction as suggested by R v Storey (supra).
43 That course was followed. In his examination-in-chief, Mr Smith was asked whether in regard to the events of 23 November 2000 he had been charged with an offence of unlawful wounding. Mr Smith replied "Yes, I got found not guilty of that".
44 In his charge, the trial Judge directed the jury that the issues in the re-trial were not the same as the unlawful wounding charge, which had involved a number of elements. His Honour referred in particular the need to prove that there had been a wounding and that the wounding was unlawful, in that it was not justified or excused by law by self-defence or accident, for example. His Honour said that the verdict of acquittal meant that the jury at the first trial was not satisfied beyond reasonable doubt as to one or more of those elements. The Judge went on to say that in the re-trial, there was no issue as to whether the cut to the right hand side of the complainant's neck amounted to grievous bodily harm because that had been conceded. The Judge directed the jury that there would be no issue as to whether the injury was justified or excused by self-defence or accident. The only issue was whether, at the time, Mr Smith had the intent to disable. His Honour said:
"That is the issue that you've got to concentrate on, so whilst the events giving rise to the unlawful wounding charge are part of the story, the two are the not the same thing, but as I say you cannot bring down a verdict which is inconsistent with the acquittal of the other jury on the other occasion." (AB303)
- No complaint is made about the form of that direction.
45 Returning to the grounds of appeal: I am not persuaded that Mr Smith was subjected to double jeopardy, as contended in ground 2, as a result of evidence being led from the complainant about the matters which were the subject of the unlawful wounding charge. In my view, the trial Judge was right to permit this evidence to be adduced: and his direction, as set out above, was appropriate. That disposes of ground 2.
(Page 14)
46 The fact that the Judge changed his mind overnight in relation to the evidence about Mr Smith's acquittal on the unlawful wounding charge is, in my view, irrelevant. That is because the Judge changed his view before Mr Smith gave evidence. Although the Crown case had then closed, no application was made to recall the complainant for further cross-examination. Indeed, that would have been pointless, because counsel for Mr Smith had already put Mr Smith's version of the events to the complainant in cross-examination. Although counsel did not put it to the complainant expressly that Mr Smith had acted in self-defence, it was put plainly to the complainant that he had been the aggressor.
47 When Mr Smith gave evidence, he said he had acted in self-defence: that his intention, when confronted by the complainant with the knife, was to protect himself, and that when he stabbed the complainant in the leg his intention was to defend himself against the complainant.
48 In my view, in all the circumstances, there is no merit in the contentions raised by grounds 3, 4 or 5.
Ground 6
"The trial Judge refused to allow appropriate questions about the new allegation of grievous bodily harm with intent to disable."
49 This ground was not pursued at the hearing of the application, and I therefore mention it only for completeness. It appears to arise from the fact that the learned trial Judge upheld an objection from the prosecutor to the following question asked of Mr Smith during his re-examination:
"When is the first time that you heard about disabling (the complainant)?"
50 The basis of the objection was that the question was inappropriate, as the prosecutor put it, "in the light of maters that were raised before your Honour before the trial". The prosecutor was referring to the desirability of keeping from the jury the fact that this was a re-trial. This is clear from a reprimand made by the Judge to Mr Smith's counsel, in the absence of the jury.
51 I see no merit in this ground. In my view, the fact that the charge of causing grievous bodily harm with intent to disable had been preferred only shortly before the trial, was irrelevant to the jury's consideration of that charge.
(Page 15)
Ground 7
"The Prosecution was allowed to make allegations of stealing a wallet, being 'in company' and attempted robbery."
52 In dealing with ground 1, I have reached the conclusion that it was open to the prosecution, at the re-trial, to base its case on causing grievous bodily harm with intent to disable, on the proposition that Mr Smith intended to rob the complainant: and that his girlfriend was involved in some way in that enterprise.
53 This ground may not add anything to ground 1. However, I think it appropriate to review the evidence adduced by the prosecution in relation to these matters, and the directions given to the jury by the learned trial Judge.
54 In so doing, I wish to deal with the submission made by the applicant's counsel, that the prosecutor departed from the evidence given at trial, by "changing the complainant's evidence about the keys".
55 As to the wallet: the complainant was asked in his evidence-in-chief whether he had been able to locate his wallet when he returned home after spending some days in hospital recovering from his injuries. The complainant said he could not.
56 In cross-examination, the complainant was asked if he knew what had happened to his wallet, and whether he accused Mr Smith of taking it. The complainant said:
"All I know is the wallet is missing. I don't know where it's gone."
- A little later, when asked again whether he was making any accusation against Mr Smith for taking the wallet, the complainant answered that he was not.
57 In Mr Smith's examination-in-chief, he was asked specifically whether he had taken the complainant's wallet and whether he had intended to rob the complainant. He answered "No" to both questions. In cross-examination, Mr Smith denied that he had taken the complainant's wallet.
58 So far as the allegation of Mr Smith being in company with his girlfriend is concerned, the prosecution called the taxi driver who had taken Mr Smith to the complainant's house on 23 November 2000. The
(Page 16)
- witness said he had taken a male and female passenger from Midland to Maddington on the night in question. The witness said the male person asked him to stop shortly before he reached the complainant's address. He did so; and the female passenger got out of the taxi about 300 metres away from the complainant's house.
59 The witness did not identify either the male or female passenger. He was not cross-examined about the female passenger.
60 In Mr Smith's cross-examination, he denied that his girlfriend had accompanied him in the taxi from Midland to Maddington.
61 Evidence for the prosecution had been given previously by a forensic scientist who had tested a pair of mens black shoes, a pair of socks and a pair of womens shoes. All of these items had been found in a rubbish bin in a Midland car park. The scientist said the mens shoes had blood on them which matched the DNA profile of the complainant's blood. There was no blood on the womens shoes or the socks.
62 Mr Smith admitted that the mens shoes and socks were his. He said he had no idea who owned the womens shoes. He denied they were his girlfriend's shoes. He denied that his girlfriend had been present at the time.
63 The submission that the prosecutor had changed the complainant's evidence, arose from a discrepancy in the evidence, between the trial and the re-trial, in relation to the complainant's keys.
64 It was the prosecution case, based on the evidence of the complainant's parents, that Mr Smith had taken the complainant's keys when he left the house, and that he had used those keys to lock the outer security door.
65 At the first trial, evidence about the keys was introduced by reference to the complainant's car. The complainant was asked about the make and registration number. He was then asked:
"Was that at your place on this particular morning?"
- This was a somewhat odd question, because on 23 November, Mr Smith arrived at the complainant's house late at night: he had been there on the morning of 18 November. The complainant's response to the question was:
"When (Mr Smith) arrived or …?"
(Page 17)
- The prosecutor then said "Yes", to which Mr Smith replied "Yes".
66 He was then asked: "Where were the keys?" The complainant answered that he usually left his key in the security door "hanging on the key ring in the door". He was then asked: "You say you usually do that. Is that what you did on this particular morning? (my emphasis). The complainant answered in the affirmative. He went on to say that as far as he could recall, his wallet was on the kitchen bench.
67 In my view, it is by no means clear from this evidence whether the complainant was directing his answers to the morning of 18 November or the night of 23 November.
68 At the re-trial, the complainant was asked how many sets of keys he had in his house. He said he had his own set, comprising the keys for the house and the car. The prosecutor then said:
"You have mentioned I think already that you normally keep those keys on the kitchen bench."
- The complainant replied: "Yes": but in fact, the complainant had not given any evidence at the retrial about where he usually kept his keys.
69 In my view, the inference to be drawn from the prosecutor's incorrect statement, is that he had was mistaken in his recollection and had confused the complainant's evidence with the evidence he gave at the first trial about his wallet. I see nothing sinister in this because the precise location of the keys was irrelevant. There was compelling evidence that Mr Smith took the complainant's keys and used them to deadlock the outer door of his house when he left, after stabbing the complainant. This was the only reasonable inference to be drawn from the evidence of the complainant's mother, who found the outer door deadlocked when she arrived at the complainant's house.
70 Counsel for the applicant made much of the prosecutor's apparent error, even to the extent of accusing him of dishonesty. In my view, that was a wholly unjustifiable, and indeed, improper, allegation.
71 In his charge to the jury, the trial Judge referred to the evidence relating to the involvement of Mr Smith's girlfriend. His Honour introduced the topic by giving a common direction about deficiencies in the evidence. He said:
"But to the extent that there isn't evidence about something, then those are simply matters about which you can't decide. If
(Page 18)
- they are important matters that go to the issues in this case then, because the burden of proof is on the Crown to prove the case against the accused man, if there's a weakness because there's no evidence on a particular point, then that weakness will go against the Crown case and if it's important enough it might well be that it ultimately affects the verdict."
72 His Honour went on to refer to the evidence about the shoes in the rubbish bin. He said:
"For example, there was some argument put forward by (the prosecutor) this morning that the accused's girlfriend's shoes were in the rubbish bin and he put it to him in cross-examination that that was the case and that they had been thrown in at the same time as his were. Now, I'm sure it would have been not a difficult thing for the police to have established that as a fact whether they were or they weren't, but apparently it wasn't done. We have no evidence about that and you can't go beyond that.
I mean, it's not probably the most important thing in the trial and therefore it might not make a difference but that's an example of something where there simply was perhaps a failure to properly investigate and to the extent that there's something missing, then that simply is something you haven't got evidence about.
Likewise, in relation to the taxi driver, for example, he says he took two people there. The accused man says, 'Well, I went by myself.' You may think it's wildly improbable that two people went from the same place to the same place some suburbs away at about the same time, but of course it would have been possible no doubt for the police to facilitate some form of identification of the accused man. They didn't do that.
If that creates a weakness, then again that is a weakness that goes against the crown case and you need not be concerned simply because there is no evidence about some matters. Just accept that. If there is no evidence and if it is important, then it will make a difference. Quite often there will be no evidence about something or you are not sure about something and perhaps it won't be very important, so this is simply the way in
(Page 19)
- which the system operates and we all need to simply work within it."
73 The allegation that Mr Smith had stolen the complainant's wallet was the subject of only a passing comment by the trial Judge, made in the context a direction to focus on the issues:
"You must consider the issues in this trial as distinct from any other matters, for example, we know that the accused man took the complainant's car. There was a discussion about whether he had taken the wallet as well.
There was, as I said, the wounding to the leg, the other cut to the throat. There are a number of other things that have happened that might or might not have been the subject of other trials or anything of that sort or other offences. They are not matters of importance to you. I suggest that you leave those to one side.
There are other matters which may or may not be of great significance, for example, whether the girlfriend was there or in the car or not, other matters of this kind. They are matters which may impact upon your ultimate decision, but of course they are not determinative of it. The central issue is, what was the intent at the time the blow was struck."
74 The Crown case, as presented by the prosecutor, in his closing address to the jury was that Mr Smith had intended to disable the complainant in order to facilitate the robbery. However, the charge by the learned trial Judge, following on immediately after the prosecutor's address, in my view, tended to deflect the attention of the jury away from those legitimate considerations.
75 In my view, these aspects of the Judge's charge to the jury were unduly favourable to Mr Smith. It would have been open to his Honour to direct the jury that if satisfied beyond reasonable doubt that Mr Smith had intended to rob the complainant, or that he had robbed him, and that Mr Smith had been in company with his girlfriend for part of the enterprise, the jury could take those matters into account in considering Mr Smith's intention when he stabbed the complainant in the neck, causing him grievous bodily harm.
76 These circumstances reinforce my view that there is no merit in ground 7. I would therefore dismiss Mr Smith's appeal.
(Page 20)
The Crown Appeal
77 Immediately on Mr Smith's conviction, the Judge heard sentencing submissions and then proceeded to sentence. In so doing, his Honour noted that "it seems that robbery was the motive".
78 In dealing with the circumstances of the offence, the Judge referred to the wound as "a gaping 10-centimetre wound to the throat which was obvious to anyone a life threatening injury". His Honour referred also to the fact that Mr Smith had left the complainant for dead: that he had left the house "unlocked" (sic "locked") and had taken other actions which seemed to his Honour to have been designed to avoid discovery. His Honour (justifiably, in my view) regarded the fact that Mr Smith had failed to summon any assistance to the complainant (even anonymously) as an aggravating feature of the offence.
79 The mitigating circumstances which his Honour identified appear to have been Mr Smith's youth and the fact that he was prepared to enter a plea of guilty to one charge of doing grievous bodily harm to the complainant. Although the Judge said that the offer to plead was a matter which went to Mr Smith's credit, my impression is that his Honour regarded that as having little weight. That is because the offer related to a less serious offence than the offence of which Mr Smith was convicted ultimately.
80 The Judge pointed out that the maximum penalty for that offence was 20 years' imprisonment. In all the circumstances, his Honour considered that a starting point would be a sentence of 9 years' imprisonment which he discounted to 6 years' imprisonment because of Mr Smith's age and the fact that he had no previous convictions. The Judge referred to these as "significantly mitigating circumstances".
81 The Judge imposed a sentence of imprisonment of 1 month for stealing the complainant's motor vehicle. That sentence was to be served concurrently with the head sentence. Mr Smith was made eligible for parole and his sentence was backdated to take account of the time he had spent in custody.
82 The Crown appeals against that sentence on the following grounds:
"1. The learned sentencing Judge erred in imposing a sentence which failed to adequately reflect the very serious nature and circumstances of the offence.
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- The sentencing failed to adequately reflect:-
(a) The severe nature of the injury inflicted;
(b) The conduct of the offender in taking steps to avoid discovery of the offence and to the assistance to the complainant after the commission of the offence.
2. The learned sentencing Judge erred in imposing a sentence which failed to adequately reflect the need for specific and general deterrence and the need for condign punishment for those committing offences in circumstances similar to those of this case.
3. The learned sentencing Judge erred in giving undue weight to the fact that the respondent had been prepared from an early stage to plead to an offence of causing grievous bodily harm.
4. The reduction of three years for mitigating factors was erroneous as it had the effect of producing a sentence below that which was proportionate to the criminality of the respondent's conduct.
5. The total effective sentence imposed is so disproportionate to the seriousness of the crime as of itself to reflect error in sentencing principle by the learned sentencing Judge."
83 The Crown acknowledges that before the Court can disturb the sentence imposed on Mr Smith, it is necessary that some error be demonstrated in the exercise of the sentencing discretion. It is not enough that the Court would have imposed a more severe sentence at first instance: Dinsdale v The Queen (2000) 202 CLR 321.
84 The essence of the Crown appeal is that, in all the circumstances, a sentence of 6 years' imprisonment – even allowing for such mitigating circumstances as could properly have been taken into account – was so disproportionate to the gravity of the offence as to manifest an error. That is the substance of ground 1. In my view, grounds 2 to 5 add little, if anything, to that ground.
(Page 22)
85 In my judgment, the appeal should succeed. This was an appalling crime. The verdict of the jury can only be interpreted as a finding that Mr Smith did intend to rob the complainant and that he formed the intention to disable the complainant for the purpose of making good his escape from the complainant's house.
86 Having been invited to the complainant's house, Mr Smith attempted a robbery which led to a struggle between him and the complainant. In the course of the struggle, Mr Smith inflicted a wound on the complainant in self defence. However, he went on to inflict a wound so serious as to be almost fatal.
87 Mr Smith showed no remorse. He left the complainant bleeding to death, removed himself from the complainant's house and deadlocked the door behind him. He made no attempt to summon assistance to the complainant: and he set about disposing of evidence which might have implicated him in the offence. I have no doubt that Mr Smith was joined in this enterprise by his girlfriend.
88 I do not accept the submissions made on Mr Smith's behalf that the Crown "compounded the seriousness of the crime by manipulating the evidence of the complainant in an attempt to increase the moral culpability of (Mr Smith) for the purpose of sentence". This is a reference to the prosecutor's apparent error in relation to the evidence concerning the complainant's keys. I have dealt with that matter already in these reasons.
89 I accept that Mr Smith's youth and previous good record are mitigating factors. However, when set against the enormity of the offence and the maximum penalty of 20 years' imprisonment, those mitigating factors should not, in my view, have had the weight which the learned sentencing Judge attributed to them.
90 I consider that a sentence of 11 years' imprisonment was a more appropriate starting point. I would have reduced that to 9 years to take account of the mitigating circumstances. As this is a Crown appeal, involving an element of double jeopardy, I would now impose a sentence of 8 years' imprisonment, with eligibility for parole, backdated to commence on 23 July 2001. Mr Smith has been in custody since that date.
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