Smith v The State of Western Australia
[2012] WASCA 78
•4 APRIL 2012
SMITH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 78
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 78 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:89/2011 | 24 FEBRUARY 2012 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 4/04/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KENNETH JOHN SMITH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Whether adequate direction on obligation to consider all the evidence Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 78 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BLAXELL J
File No : INS 96 of 2010
Catchwords:
Criminal law - Appeal against conviction - Whether adequate direction on obligation to consider all the evidence - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McLURE P: This is an application for leave to appeal against conviction. The appellant was convicted after trial of the murder of Jarrad Roy Fitzpatrick (the deceased).
2 The appellant and his father, Colin John Smith, were jointly charged with the murder of the deceased. The appellant's mother was charged, in the same indictment, with manslaughter. After a trial by jury, the appellant was convicted of murder and his father and mother were convicted of manslaughter.
3 The State case at trial was as follows. In November 2009 the appellant was living in the suburb of Withers with his parents and three of his siblings. A few months previously Rene Kipling and her brother Kayne Kipling resided temporarily at the appellant's family home. The appellant and Ms Kipling formed a romantic relationship. After a while, they moved to a property at 4 Morrissey Street. Approximately two weeks later, the relationship broke down and the appellant returned to live with his parents. There was a dispute in relation to the goods and furniture that were to be removed from 4 Morrissey Street. The appellant's parents became involved in the dispute, as did the police.
4 The appellant's parents were concerned about the appellant and the effect the break-up was having on him. He had suffered psychiatric problems in the past and had attempted to self-harm. Text messages were exchanged between the appellant and Ms Kipling in the days leading up to 28 November 2009.
5 On 27 November 2009 the appellant returned to his parents' home from a party at approximately midnight. He was affected by alcohol. That evening he had received a number of telephone calls that made him agitated and angry. There were allegations that Ms Kipling had threatened that a group of men at Morrissey Street were going to slit the appellant's throat and murder his family. She denied those allegations. Soon after, the appellant and his parents drove to Morrissey Street. Upon arriving the appellant and his father got out of the car and went up the driveway towards Ms Kipling and the deceased. At this point, Ms Kipling called the police. The deceased decided he did not want to have anything to do with the appellant and went to get into his car to leave. The appellant set upon the deceased as he was getting into the car. The appellant made a frenzied attack on the deceased, punching and kicking him once he was on the ground. The appellant took a knife from his pocket, opened it and stabbed the deceased in the chest with the intention of causing him a life-threatening injury. The appellant continued to beat
(Page 4)
- the deceased after the stabbing and was pulled away by his father. The appellant returned and attacked the deceased again, hitting him with a piece of timber. The appellant's father again pulled him away and they drove home. The deceased died from the stab wound.
6 On arriving home, the appellant was seen by his uncle, Troy Smith, with blood on his shoes and shins and looking very distraught. The appellant said words to Troy Smith to the effect that 'I kicked some bloke three times in the head'. The appellant also made admissions to Troy Smith stating he '[might've] used a knife' (ts 149).
7 After showering, the appellant went into the bedroom of his sister, Larissa Smith. The appellant made an admission, saying to his sister 'I stabbed him and I left him in his own blood'.
8 In a video record of interview with police, the appellant's father admitted stabbing the deceased. However, there was evidence of telephone conversations between the appellant's father and Nartisha Smith (his daughter) which the State relied on as an acknowledgement by the appellant's father that it was the appellant who stabbed the deceased. The appellant's father gave evidence at trial that he, not the appellant, had stabbed the deceased.
9 The State case at trial was that the appellant's father had falsely confessed to stabbing the deceased in order to protect his son. According to the State, there was a conflict between the out of court admissions as to the stabbing and the evidence given at trial. It was also contended that the version of the stabbing given at trial was implausible.
10 The appellant's father was the only defendant to give evidence at trial. He had participated in two video records of interview with police. He also provided police with a written statement dated 28 July 2010 in which he admitted committing the offence. That statement was read to the jury.
11 The facts leading up to the altercation involving the deceased were not in dispute. The evidence of the appellant's father was to the following effect. During an altercation between the appellant and the deceased, the deceased got the better of the appellant. The appellant's father intervened, took a knife out of his pocket and attempted to stab the victim in the upper left arm. However, the deceased turned and the knife entered the deceased's chest.
(Page 5)
12 The only ground of appeal relied on by the appellant is in the following terms:
The learned trial judge failed to effectively direct the jury as to the relevance to the Appellant's defence of out-of-court statements made by a co-accused:
Particulars:
1.1 His Honour failed to direct the jury as to how Colin Smith's credibility impacted upon the appellant's defence.
13 It was not possible to extract from the ground of appeal or the written submissions in support the precise nature of the error for which the appellant contends. Counsel for the appellant in the appeal explained it as follows:
His Honour ought to have directed the jury that if they found that the father was lying in court and that what he has said out of court was the truth to his daughter, it didn't necessarily follow that they should find the son guilty. They needed to look at all of the evidence (ts 12).
14 There is no merit in the ground. The jury would have been left in no doubt of its obligation to consider all the evidence. The central live issue in the appellant's trial was whether the appellant or his father stabbed the deceased. Against that background, the trial judge said:
The first determination that you have to make in your assessment of the evidence is who it was who stabbed Jarrad Fitzpatrick. That's the most important decision you have to make. You have to make that finding of fact beyond reasonable doubt …
It would be very easy for you to be satisfied beyond reasonable doubt that it was [the appellant's father] who committed the stabbing because he has made a full and detailed confession that he was the one who did it. However, the State contends that [the appellant's father] has made a false confession and that he is covering up for his son [the appellant].
In that regard, the State relies on [the appellant's] behaviour after the stabbing and on what he said to his uncle Troy and to his sister Larissa. The State also submits that [the appellant's father's] descriptions of how he stabbed Jarrad have changed and that his final version is implausible. The State further submits that the statements made by [the appellant's father] during the telephone conversations with his daughter Nartisha also support the conclusion that it was [the appellant] who was the principal offender.
You will have to carefully assess these aspects of the evidence in coming to your finding as to who it was that stabbed Jarrad … However, if you are unable to make that finding because you are not satisfied beyond
(Page 6)
- reasonable doubt who it was who committed the stabbing, then you will have to come to your verdicts in respect of [the appellant] and [the appellant's father] on the basis that you do not know which of them was the principal offender (ts 360).
15 Trial counsel did not seek any redirection. None was required. As the ground of appeal has no reasonable prospect of succeeding, leave to appeal should be refused and the appeal dismissed.
16 NEWNES JA: I agree with McLure P.
17 MAZZA JA: I agree with McLure P.
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