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Court of Criminal Appeal 14 June 2000

Regina v Arthur Stanley Smith

[2000] NSWCCA 202

Homicide
MURDER APPEAL AGAINST CONVICTION AND SENTENCE JONES V DUNKEL DIRECTION INCONSISTENT EVIDENCE ALTERNATIVE SCENARIO PUT TO JURY MOTIVE TO LIE

Citation: Regina v Arthur Stanley Smith [2000] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 14 June 2000
Judge(s): Stein JA; Dunford J; Sperling J

Background

The appellant was convicted of the murder of a man whose body was discovered buried on a Botany beach in March 1995, more than eleven years after his disappearance in July 1983. The Crown alleged the appellant shot the deceased on the beach that night and then directed an associate to bury the body.

Two central witnesses shaped the Crown case. The first, referred to at trial as "Mr Green," was the associate present on the night and gave direct eyewitness evidence of the shooting. The second, referred to as "Mr Brown," was a prison informer to whom the appellant made admissions approximately six months before the body was found. Those admissions were recorded by a lawfully authorised listening device.

The appellant pleaded not guilty. A jury returned a guilty verdict on 9 September 1998 and Simpson J sentenced the appellant to life imprisonment the following day. The appellant appealed against both conviction and sentence.

  • Whether the trial judge erred in failing to give a Jones v Dunkel direction against the Crown for not calling a witness referred to as "Mr White"
  • Whether the jury was wrongly directed that it could convict on the evidence of Mr Green alone, or on the appellant's admissions to Mr Brown alone, without considering all the evidence together
  • Whether the trial judge adequately summarised the defence case in relation to Mr Green
  • Whether the trial judge erred in directing the jury that there was no apparent reason for Mr Green to lie
  • Whether the taped conversations between the appellant and Mr Brown should have been excluded from evidence, on the basis that Mr Brown was an agent of the state
  • Whether the trial judge erred in declining to discharge the jury
  • Whether the conviction was unreasonable or unsupported by the evidence, including in light of the Crown's failure to call Mr White
  • Whether the life sentence was manifestly excessive or wrongly categorised as among the worst class of offences

Decision

Jones v Dunkel direction (Grounds 1 and 2): The Court examined whether the trial judge was required to direct the jury that an unfavourable inference could be drawn from the Crown's failure to call Mr White. The Court rejected this ground. A Jones v Dunkel direction (which permits a jury to infer that an uncalled witness's evidence would not have assisted the party who failed to call them) was not required on the facts as presented.

Jury directions and the defence case (Grounds 3, 4, and 5): The appellant argued the directions permitted compartmentalised fact-finding and failed to capture the defence case adequately. The Court found no reversible error in the directions given. On the question of Mr Green's motive to lie, the Court did not accept that the trial judge's treatment of that issue miscarried in a way that warranted appellate intervention.

Taped confessions and the "agent of the state" question (Ground 6): The appellant sought exclusion of the recorded admissions made to Mr Brown on the basis that Mr Brown was acting as an agent of the state, making the recordings analogous to a covert police interrogation. The Court rejected this characterisation and upheld the trial judge's decision to admit the evidence. The recordings were obtained under lawful authority and the circumstances did not bring Mr Brown within the principles that would exclude such admissions.

Discharge of jury and unreasonable verdict (Grounds 8 and 9): The Court found no error in the trial judge's refusal to discharge the jury and concluded the conviction was not unreasonable. The evidence of Mr Green and the recorded admissions to Mr Brown together provided a sufficient basis for the verdict. The Crown's failure to call Mr White did not render the conviction unreasonable.

Sentence (Grounds 10 and 11): The Court upheld the life sentence. The trial judge found the killing was premeditated, cold-blooded, and carefully planned, and identified at least three motivations: financial gain (the deceased was carrying a substantial sum of money), protection of the appellant's criminal interests, and the deceased having become a nuisance. The appellant's criminal history was also a relevant consideration. The Court noted the appellant declined to participate in the sentencing proceedings or have counsel address on the question of assistance to authorities, which left the sentencing judge unable to evaluate that matter.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A Jones v Dunkel direction against the Crown for failing to call a witness is not automatic; the Court confirmed it was not required in circumstances where the uncalled witness's anticipated evidence did not meet the conditions for such a direction.
  • Where an informer records admissions from a fellow prisoner, those recordings are not automatically excluded as the product of state-sponsored interrogation; the "agent of the state" doctrine requires a closer factual connection between the informer's conduct and law enforcement direction than was present here.
  • In dismissing the conviction appeal, the Court confirmed that a jury may be directed it can find guilt on the evidence of a single witness or on admissions alone, provided the overall directions properly require proof beyond reasonable doubt.
  • A life sentence for murder can withstand appellate challenge where the trial judge identifies multiple aggravating features including premeditation, planning, financial motivation, and an extensive criminal history illuminating moral culpability.
  • A defendant who declines to participate in sentencing proceedings, or to have counsel address on mitigating matters such as assistance to authorities, leaves the sentencing court unable to evaluate those matters in the appellant's favour.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 106(b), 138(1)
- Jury Act 1977 (NSW), s 22
- Listening Devices Act 1984 (NSW)

Cases:
- Jones v Dunkel (1959) 101 CLR 298
- Black v The Queen (1993) 179 CLR 44
- Palmer v The Queen (1998) 72 ALJR 254
- The Queen v Swaffield; Pavic v The Queen (1997) 192 CLR 159
- Veen v The Queen (1987-1988) 164 CLR 465
- Webb v The Queen (1993-1994) 181 CLR 41
- Whitehorn v The Queen (1983) 152 CLR 657
- The Queen v Apostilides (1984) 154 CLR 563
- Richardson v The Queen (1974) 131 CLR 116
- R v Broyles [1991] 3 SCR 595
- R v Kneebone (1999) 47 NSWLR 450
- R v E (1996) 39 NSWLR 450
- R v Tangye (1997) 92 A Crim R 545
- R v Sandford (1994) 72 A Crim R 160
- R v MM [2000] NSWCCA 78
- R v Newland (1997) A Crim R 455
- R v George (1987) 9 NSWLR 527
- R v Gallagher (1989) 29 A Crim R 33
- R v Russell-Jones [1995] 3 All ER 239
- R v Buckland [1977] 2 NSWLR 452
- R v Ball [1961] 61 SR (NSW) 37