Legal Research
Cases
Smith v The Queen

Smith v The Queen

Case [2013] VSCA 112 14 May 2013

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0211

WOLFE JAMES SMITH	Applicant
	v
THE QUEEN	Respondent

---

JUDGES	HARPER, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 March 2013
DATE OF JUDGMENT	14 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 112
JUDGMENT APPEALED FROM	Unreported, County Court of Victoria, 23 July 2012 (Conviction) and 31 August 2012 (Sentence), Judge Tinney

---

CRIMINAL LAW – Application for leave to appeal against conviction and Application for leave to appeal against sentence – Applicant convicted of intentionally causing serious injury and attempting to pervert the course of justice – Whether the judge erred by impermissibly dictating the sequence of the jury’s deliberations – Whether the conviction on the charge of pervert the course of justice is reasonable and/or can be supported having regard to the evidence – Application for leave to appeal against conviction and application for leave to appeal against sentence dismissed.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Schembri & Co
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions`

HARPER JA:

I have had the benefit of reading, in draft, the judgment of Priest JA. I agree with him, for the reasons he gives, that leave to appeal against both conviction and sentence should be refused.

The resolution of one of the issues in this case requires, as it did in that of Medici v The Queen,[1] an examination of the directions to be given to a jury where alternative charges have been preferred by the Crown. I refer to my judgment in Medici, in which I endeavoured to articulate how in my opinion jurors may appropriately be assisted in discharging their duty in the circumstances with which the jurors were confronted in the present case.
[1][2013] VSCA 111.

PRIEST JA:

Introduction

In my opinion, the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should each be refused. My reasons follow.

The charges and sentences

There were four counts on the Indictment – affray, charge 1; intentionally causing serious injury, charge 2; recklessly causing serious injury, charge 3; and attempting to pervert the course of justice, charge 4.

Following a trial in the County Court at Melbourne, on 23 July 2012 the applicant was convicted of intentionally causing serious injury (charge 2) and attempting to pervert the course of justice (charge 4). He was found not guilty of affray. Owing to the verdict on the second charge, no verdict was taken on the

alternative charge of recklessly causing serious injury, or on the ‘included’ offences of intentionally causing injury or recklessly causing injury.[2]

[2]See Criminal Procedure Act 2009, s 239. See also R v Kane (2001) 3 VR 542; LLW v R [2012] VSCA 54; James v R [2013] VSCA 55.

On 31 August 2012 the trial judge sentenced the applicant to be imprisoned for four (4) years…

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 [2013] VSCA 112
Case: [2013] VSCA 112
Decision Date: 14 May 2013

CaseChat Overview and Summary

The applicant, Smith, was convicted of intentionally causing serious injury to another person and of attempting to pervert the course of justice. Smith sought leave to appeal against both the conviction and the sentence. The High Court of Australia was tasked with determining whether the trial judge had erred by directing the jury on the sequence of their deliberations and whether the conviction on the charge of perverting the course of justice was reasonable and supported by the evidence. The Court examined whether the judge's instructions to the jury constituted an error that could have affected the fairness of the trial. Additionally, the Court assessed the sufficiency and reliability of the evidence supporting the conviction on the charge of attempting to pervert the course of justice.

In its reasoning, the Court held that the trial judge's direction to the jury did not constitute an error that warranted a new trial. The judge's instruction was a legitimate guide to the jury in their deliberations and did not prejudice the applicant. Furthermore, the Court found that the evidence was sufficient to support the conviction on the charge of attempting to pervert the course of justice. The Court was satisfied that the jury's decision was based on reliable and credible evidence, and thus, the conviction was reasonable and properly supported.

The High Court dismissed both the application for leave to appeal against the conviction and the application for leave to appeal against the sentence. The Court concluded that the trial judge's directions to the jury did not constitute a significant error, and the evidence was sufficient to uphold the conviction on the charge of perverting the course of justice. As such, Smith's appeal was unsuccessful, and the original conviction and sentence remained in place.

Orders