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Smith v The Queen

Smith v The Queen

Case [2020] NZSC 106 7 October 2020

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 66/2020
[2020] NZSC 106

BETWEEN	ERNEST SMITH Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	A N Isac QC and M R G van Alphen Fyfe for Applicant J M Irwin for Respondent
Judgment:	7 October 2020

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant pleaded guilty to the murder of his former partner. The murder took place in November 2012. The plea was entered in September 2013 after a sentencing indication. The applicant was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.[1]
[1]R v Smith [2013] NZHC 2782 (Ronald Young J) [Sentencing remarks].
The applicant appealed against his sentence to the Court of Appeal, arguing that the MPI of 17 years was excessive. That appeal was dismissed.[2]
[2]Smith v R [2016] NZCA 617 (Wild, Miller and Brown JJ) [CA judgment].
He now seeks leave to appeal against the Court of Appeal decision. His application for leave is almost four years outside the period within which such an application should be made.[3] The applicant seeks an extension of time, arguing that the delay is explained by the fact that he has learning difficulties, borderline cognitive functioning and illiteracy, all of which make it difficult for him to proactively seek legal services and instruct counsel. The respondent opposes an extension. We accept that the delay is considerable, but there is no real prejudice to the respondent and the personal difficulties of the applicant have contributed to the delay. In the circumstances we have decided to grant the extension and consider the application on its merits.
[3]Supreme Court Rules 2004, r 11.
The murder involved a considerable degree of planning. The applicant and the deceased had been together for some years and had a son together. But the relationship had foundered after incidents of family violence and the couple separated. On the day of the murder, the applicant went to the house of the deceased when she was out and hid in the roof cavity for several hours. After the deceased and her children had gone to bed, he descended into the house, entered the bedroom where the deceased and their infant son were sleeping and stabbed the deceased multiple times. She bled to death. Her 15-year-old son discovered her body the following morning.
The applicant was subject to a number of pre‑trial psychiatric assessments. He was found fit to stand trial and his guilty plea was entered soon after that finding was made. One of the psychiatric assessors, Dr Barry Walsh, expressed the view that the applicant displayed evidence of “severe dysfunction in his personality allied with limited intelligence, impaired literacy and the effects of cultural and language difference”.
In sentencing the applicant, the High Court Judge concluded that the circumstances of…

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 [2020] NZSC 106
Case: [2020] NZSC 106
Decision Date: 7 October 2020

CaseChat Overview and Summary

The applicant, Ernest Smith, sought leave to appeal against a decision of the Court of Appeal that had dismissed an appeal against his sentence for the murder of his former partner. The Court of Appeal had dismissed the appeal against the sentence, which was life imprisonment with a minimum period of imprisonment of 17 years. The applicant's application for leave to appeal was made well outside the statutory time limit and he sought an extension of time on the basis of his learning difficulties, borderline cognitive functioning and illiteracy. The respondent opposed the extension of time.

The legal issues before the court were whether the application for leave to appeal was within the statutory time limit and, if not, whether an extension of time should be granted and, if granted, whether the criteria for leave to appeal were satisfied. The court found that while the delay was considerable, there was no real prejudice to the respondent and the applicant's personal difficulties had contributed to the delay. The court decided to grant the extension and consider the application on its merits.

The court considered the issue of the level of discount for a guilty plea in a s 104 case. The court found that the applicant's counsel in the Court of Appeal had accepted that the starting point of an MPI of 18–19 years was appropriate and that there was no argument to the contrary as having sufficient prospect of success to justify a further appeal. The court also found that there was a real question as to whether the issue of the level of discount for personal characteristics arose in this case, given the doubt about whether there was a sufficient link between the personal characteristics of the applicant and the murder. The court found that the criteria for leave to appeal were not met.

The application for an extension of time to apply for leave to appeal is granted, but the application for leave to appeal is dismissed.

Orders