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Smith v The Queen

Smith v The Queen

Case [2018] VSCA 139 30 May 2018

Appeal

Miscarriage of Justice

Discrediting of Witness

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0159

PAUL FREDERICK SMITH	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WHELAN, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 May 2018
DATE OF JUDGMENT:	30 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 139
JUDGMENT APPEALED FROM:	DPP v Paul Frederick Smith (Unreported, County Court of Victoria, Judge Punshon, 10 November 2016).

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CRIMINAL LAW – Application for leave to appeal – Conviction – Prosecutor’s closing address – Statements ‘not supported by evidence’, ‘inaccurate’ or ‘inflammatory’– Use of rhetorical questions – Discrediting of Crown witness without proper foundation – Whether substantial miscarriage of justice – Complaints did not result in substantial miscarriage of justice, separately or in combination – Leave to appeal allowed – Appeal dismissed – Bugeja v The Queen (2010) 30 VR 493; De Vries v The Queen [2013] VSCA 210; Basic v The Queen (2015) 251 A Crim R 91; Spence v The Queen [2016] VSCA 113 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Marsh with Mr A Pyne	Victoria Legal Aid
For the Respondent	Mr B L Sonnett with Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
BEACH JA
McLEISH JA:

On Sunday 4 August 2013 at about 5:53 pm the applicant left the Ararat Hotel in Ararat. He had been drinking there alone throughout the afternoon. He attended an Aldi supermarket not far from the hotel shortly thereafter. At approximately 6:00 pm the applicant’s motor vehicle veered across the dividing line of Lambert Street, Ararat into the path of an oncoming vehicle driven by Ayenew Kindish. There were six passengers in Mr Kindish’s vehicle. There was a collision. As a result of the collision Mr Kindish sustained a serious injury. The other occupants of his vehicle suffered minor physical injuries. The applicant was in his vehicle at the time of the collision. He left the scene before police arrived. He did not render assistance. He suffered injuries himself, being a swollen right cheek, a minor split on his upper lip, an injured right ankle and an undisplaced fracture of the ulna in his right arm. Later that night the applicant appeared at the home of one of his friends, Timothy O’Brien. Mr O’Brien eventually took the applicant to the police station and later to the Ararat Hospital. When interviewed by the police the applicant maintained that he could not remember what had happened.

The applicant was charged with negligently causing serious injury (being the injuries caused to Mr Kindish), reckless conduct endangering serious injury (being the endangerment of Mr Kindish’s passengers) and failing to assist after an accident.

The applicant pleaded not guilty. The two principal issues on his trial were whether the prosecution could prove beyond reasonable doubt that the applicant was the driver of his vehicle at the time of the collision, and whether the applicant left the scene of a collision in a condition which might have prevented him…

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 [2018] VSCA 139
Case: [2018] VSCA 139
Decision Date: 30 May 2018

CaseChat Overview and Summary

In the matter of Smith versus The Queen, the appellant contested his conviction in the Supreme Court of Victoria. The appellant was found guilty of serious criminal offences and sought leave to appeal against his conviction, arguing that the prosecutor’s closing address contained statements that were not supported by evidence, were inaccurate, or were otherwise inflammatory. Additionally, the appellant claimed that the prosecutor used rhetorical questions and improperly discredited a Crown witness without a proper foundation. The Supreme Court was tasked with determining whether these alleged errors amounted to a substantial miscarriage of justice.

The primary legal issues before the court involved assessing the impact of the prosecutor’s statements on the fairness of the trial and whether these statements, either individually or in combination, led to a substantial miscarriage of justice. The court considered the principles established in previous cases such as Bugeja v The Queen, De Vries v The Queen, Basic v The Queen, and Spence v The Queen, which provide guidance on the evaluation of prosecutorial misconduct and its effect on trial outcomes. The court also examined whether the alleged errors resulted in a trial that was not fair or just.

After a thorough review of the prosecutor’s statements and the context in which they were made, the court found that while some of the prosecutor's remarks were indeed problematic, they did not, either individually or cumulatively, result in a substantial miscarriage of justice. The court determined that the errors did not undermine the overall fairness of the trial, nor did they lead to an outcome that was significantly unjust. Consequently, the court allowed the application for leave to appeal but dismissed the appeal itself. The appellant’s conviction and sentence were thereby upheld.

Orders