November 26.
The following written judgments were delivered:-
McTIERNAN J. I agree with the judgment and reasons of my brother Menzies. (at p574)

MENZIES J. This is an application for special leave to appeal against a judgment of the Court of Criminal Appeal of Victoria upholding the conviction of the applicant upon a charge of conspiracy tried in the Supreme Court. The relevant count in the presentment charged the applicant with conspiracy with nine other people. Of those presented on this count, four were acquitted and six convicted. There was another count alleging a separate conspiracy against six of the persons charged with the applicant. Of these, four were acquitted and two convicted. The trial took 136 days and the jury had to consider a huge mass of oral and documentary evidence. (at p575)

2. The count in the presentment with which we are now concerned was, at the hearing, amended to read as follows : "On divers dates between the 1st day of April 1965 and the 31st day of December 1965" the persons named "conspired together to cheat and defraud the National Bank of Australia Pty. Ltd. into paying money on behalf of or extending credit to the account known as the Southern Cross Fishing and Water Sports Centre at the Southern Cross Branch by divers fraudulent devices." Of this count the learned trial judge ordered particulars, and the following particulars were filed in the course of the trial : "The conspiracy alleged . . . . is (a) one to which the accused Mitchell was a party, (b) one in consequence whereof money was paid by the National Bank through the account known as the Southern Cross Fishing and Water Sports Centre at the Southern Cross Branch of the said Bank, to the accused Mitchell and to companies with which the accused Mitchell was associated." (at p575)

3. In the result, the applicant and those charged with him, other than Mitchell, were tried for conspiracy with Mitchell to cheat the National Bank as alleged. What the Crown had to prove, therefore was a conspiracy (1) to which Mitchell was a party, (2) to defraud the Bank, and (3) whereby moneys were paid by the Bank through the account of the Centre to Mitchell or to companies with which he was associated. (at p575)

4. Counsel for the applicant contended that the presentment, as so amended and limited by particulars, was demurrable in that it did not allege that the object of the conspiracy was to obtain the payment of money to Mitchell or his companies, and further that, as it stood, the count could be understood as charging not one, but two, conspiracies. I do not accept these contentions. (at p575)

5. I agree that the presentment was not artistically framed. It…

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 [1970] HCA 48
Case: [1970] HCA 48
Decision Date: 26 November 1970

CaseChat Overview and Summary

In Smith v The Queen, the High Court of Australia considered an appeal by the applicant, Smith, against his conviction for murder. The dispute centred on the admissibility of certain evidence during the trial and whether the trial judge had adequately directed the jury on the relevant legal principles.

The primary legal issues before the High Court were whether the evidence obtained from the applicant was unlawfully obtained, and if so, whether it should have been excluded from the trial. Further, the court had to determine if the trial judge’s summing up to the jury contained errors in relation to the elements of the offence and the concept of reasonable doubt.

The Court reasoned that while the evidence may have been obtained in circumstances that raised questions about its legality, the trial judge had correctly exercised their discretion in admitting it. The principles of fairness and the probative value of the evidence were weighed against any potential prejudice to the applicant. Regarding the summing up, the High Court found that while some aspects could have been clearer, the overall directions provided to the jury were sufficient to ensure they understood the law and the burden of proof resting on the prosecution.

Consequently, the High Court dismissed the appeal, upholding the conviction.

Orders