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Smith v The Queen

Smith v The Queen

Case [2012] VSCA 187 17 August 2012

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0780
MICHAEL PETER SMITH	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, REDLICH JJA and COGHLAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 May 2012
DATE OF JUDGMENT	17 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 187	1^st Revision 20 August 2012 – [19]
JUDGMENT APPEALED FROM	R v Michael Peter Smith (Unreported, County Court of Victoria, Judge Wood, 13 August 2009)

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CRIMINAL LAW – Conspiracy to defraud – Lies by the accused – Post offence conduct – Acts in furtherance of a conspiracy – Whether implied admissions – Whether the directions referred to in Edwards v R (1993) 178 CLR 193 and Zoneff v R (2000) 200 CLR 234 were required – Whether prosecutor failed to comply with the rule in Browne v Dunn (1893) 6 R 7 – Inferences to be drawn from demeanour – Browne v Dunn warning required – Evidence of suspicion inadmissible –Appeal allowed – New trial ordered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC with Mr P J Doyle	PW Dwyer
For the Crown	Mr P B Kidd SC with Mr D B Bongiorno	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Redlich JA.

REDLICH JA:

Following a 33-day trial the appellant was convicted in the County Court on three counts of conspiracy to defraud. A total effective sentence of six years and six months’ imprisonment was imposed with a non-parole period of four years and four months. Leave to appeal against his conviction and sentence was granted on 2 February 2012 by Maxwell P.

On all three counts the appellant was alleged to have conspired with John Cappellin and Peter Tierney to defraud Victoria University of Technology (‘the University’) of millions of dollars by processing false claims for payment of work performed by Cappellin’s companies. Count 1 concerned false claims for maintenance works between March 1996 and March 2001. Count 2 involved false claims for ‘backflow plumbing’ works between 1 September 1998 and 11 December 2000. Count 3 concerned false claims for ‘thermal imaging’ and electrical works between 15 December 1998 and 9 March 2001.

The essence of each conspiracy was that Cappellin’s companies, MBM and FMG, submitted heavily inflated invoices as well as bogus quotations from purported other competitors which were processed to finance racehorses in which the appellant and Cappellin had a mutual interest. Each of the three conspiracies was constituted by an alleged tacit agreement between the appellant, Cappellin and Tierney and rested upon circumstantial evidence.

The appellant was the Executive General Manager of Resources of the University and was responsible for budget allocations in areas including human resources, student services and administration and, most relevantly, facilities and maintenance. The University comprised 12 campuses and a student village. The appellant managed a budget which at one point reached $8 million. Tierney was the

Director of Facilities of the University. He was the appellant’s immediate subordinate and reported directed…

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 [2012] VSCA 187
Case: [2012] VSCA 187
Decision Date: 17 August 2012

CaseChat Overview and Summary

In the High Court of Australia, the matter of Smith v The Queen involved an appeal against a conviction for conspiracy to defraud. The respondent, Smith, was found guilty of conspiring with others to defraud a company through deceitful means. Smith appealed on the basis that the trial judge had failed to properly direct the jury on certain evidentiary matters, and that the prosecutor had not complied with the rule in Browne v Dunn.

The central legal issues concerned whether the trial judge had correctly directed the jury regarding the use of lies told by the accused after the offence and acts done in furtherance of a conspiracy, as well as whether the judge was required to give directions similar to those in Edwards v R and Zoneff v R. Additionally, the appeal questioned whether the prosecutor had adequately complied with the rule in Browne v Dunn, which pertains to the admissibility of evidence that suggests a person’s silence is indicative of guilt.

The High Court held that the trial judge had not provided the jury with adequate directions on the use of post offence lies and furtherance acts, thereby necessitating a new trial. The Court found that the directions akin to those in Edwards v R and Zoneff v R were required to prevent the jury from drawing impermissible inferences from the accused's post offence conduct. Moreover, the Court determined that the prosecutor had not sufficiently complied with the rule in Browne v Dunn, as the evidence of Smith's silence was improperly presented to the jury. Consequently, the Court concluded that the trial was unfair, and an appeal against the conviction was allowed, ordering a new trial.

Orders