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Smith v R

Smith v R

Case [2013] NZCA 362 27 September 2013

Prosecutorial Misconduct

Inviting the Jury to Infer Guilt

Exceeding Established Constraints

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN THE JUDGMENT OF THE COURT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA435/2011 [2013] NZCA 362

BETWEEN
DANIEL ETHAN SMITH

Appellant

AND

THE QUEEN Respondent

Hearing: 16 September 2013

Court:

O'Regan P, Ellen France and Wild JJ

Counsel:

C W J Stevenson for Appellant
C L Mander for Respondent

Judgment:

27 September 2013 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The conviction entered by the High Court is quashed. C A retrial is ordered.
D Any question of bail is for the High Court.

E Order prohibiting publication of the judgment and any part of the proceeding (except the result as set out in the judgment of the Court) in

SMITH V R CA435/2011 [2013] NZCA 362 [27 September 2013]

news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest
permitted.

REASONS OF THE COURT

(Given by Wild J)

Table of Contents

Para No

Introduction [1]

Factual background [4]

What the appellant said to the police [11]

Trial issues

Self-defence [15]

Murderous intent [20]

Issues on the appeal against conviction

Cellmate confession [21]

Offender caution [28]

Prosecutorial misconduct [31]

(a)     Inviting the jury to infer guilt from appellant’s silence

before trial
[32]

(b)     Exceeding established constraints [59]

(c)     Lying to hide guilt [63]

(d)     Opening propensity point lacking an evidentiary

foundation
[66]

(e)     “Duty to retreat” [69]

Summary [72]

The proviso [74]

Result [79]

Introduction

[1] Mr Smith appeals against his conviction for murder following a trial in the High Court at Timaru over three days in May 2011. He appeals also against the sentence of life imprisonment imposed on him by Fogarty J on 17 June 2011.1

[2] The primary ground of appeal, and the one on which we allow the appeal

against conviction, is that justice miscarried in the appellant’s trial as a result of the

1 R v Smith HC Timaru CRI-2010-045-249, 17 June 2011.

jury being invited by the prosecutor to infer that the appellant was guilty, because he did not disclose his defence that he stabbed the victim in self-defence until he gave evidence in his trial.

[3] The ground of appeal against sentence was that life imprisonment was a manifestly excessive and inappropriate sentence for a number of reasons, and that a finite sentence of around 10 years imprisonment was the appropriate one. As the appeal against conviction succeeds, we say nothing more about the appeal against sentence.

Factual background

[4] The early part of the narrative is not much in dispute. At about 9.45 pm on 1

April 2010 the appellant was walking home along Thames Street…

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 R

Details

AGLC: Smith v R [2013] NZCA 362
Case: [2013] NZCA 362
Decision Date: 27 September 2013 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Daniel Ethan Smith appealed his conviction for murder and the sentence of life imprisonment imposed on him by the High Court. The primary ground of appeal was that the prosecutor improperly invited the jury to infer guilt from the fact that Smith did not disclose his defence of self-defence before trial. The appeal against sentence was dismissed as the appeal against conviction succeeded. The Court found that the prosecutor breached s 32(2)(a) of the Evidence Act, which prohibits inviting the fact-finder to draw an inference of guilt from the defendant's silence before trial. The Court held that the prosecutor's cross-examination and closing address to the jury invited the jury to infer guilt from Smith's silence about his self-defence claim before trial. Additionally, the Court found that the trial judge's summing up contained a misdirection, as it allowed the jury to infer guilt from Smith's silence about his self-defence claim when speaking to Mr Douglas and Mr Parlato. As a result, the Court allowed the appeal, quashed the conviction, and ordered a retrial. Any question of bail pending that retrial was for the High Court. The Court also made an order prohibiting publication of the judgment and any part of the proceeding in news media or on the internet or other publicly available database until the final disposition of the retrial, with the exception of the result as set out in the judgment of the Court.

Orders