A man jailed in February for making threats argued in the Court of Appeal this week that his conviction should be overturned.

Kyle Smith, 40, was convicted of threatening James Guishard and resisting arrest in an incident on October 28, 2023.

During his trial, the court heard that at the time of the offence, Smith was renting a space in a home co-owned by Mr Guishard’s mother, who earlier that year was given a dementia diagnosis.

The complainant said that he had moved his mother to his own home in September 2023 and had made several attempts to go back into the home to retrieve her belongings, but on each occasion was stopped by Smith.

He said that on October 25, he got into an argument with Smith, who told him that only Mr Guishard’s mother could make him leave the property, and as such he would not do so.

On October 28, Mr Guishard contacted police to assist him in accessing the property, but, while waiting outside in his car, he saw Smith approach holding a baseball bat.

He alleged that Smith had then told him words to the effect of: “I’m going to mess you up.”

The police arrived on the scene shortly afterwards and an officer instructed Smith to put his hands on the police car.

However, the court heard Smith pulled his hands away and held them over his head so the officer could not reach them.

Other officers stepped in to assist and Smith was arrested.

While Smith was found guilty in Magistrates’ Court of resisting arrest and of threatening Mr Guishard, he was found not guilty of a separate charge of threatening a police officer at the scene.

Smith subsequently launched an appeal in the Supreme Court, but Assistant Justice Patrick Doherty dismissed it in January.

Smith was sentenced to a period of nine months in prison in February, but launched an appeal against his conviction to the Court of Appeal.

During a hearing on Tuesday, Michael Scott, for Smith, said that while the magistrate had explained their reasoning to find the appellant not guilty for threatening the officer, they did not provide the same clarity to explain their finding of guilt for the offence of threatening Mr Guishard.

He said that while Smith accepted that he had told Mr Guishard he would “mess him up” to intimidate him, he was acting in defence of his property.

Mr Scott said that Smith was a legal tenant in the building and believed, based on past encounters, that Mr Guishard intended to trespass on the property.

He said: “There was a history of Mr Guishard changing the locks and essentially using his power of receivership to bully a lawful tenant.”

Adley Duncan, for the Crown, said it was not disputed that Smith had made the comment intending to intimidate Mr Guishard and his reasoning for the decision did not amount to a legal defence.

Mr Duncan said: “Once there is evidence that the defendant did something threatening, by word or conduct, with intention to alarm, that’s the offence.”

He said that even if Mr Guishard was physically on the property at the time of the offence, it did not necessarily give rise to a defence of Smith’s actions.

Mr Duncan added: “It’s common ground that words were uttered.

“It’s common ground that the defendant had a device in his hand.”

The Court of Appeal reserved judgment on the case until a later date.

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