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Flood-Smith v R

Flood-Smith v R

Case [2018] NSWCCA 103 1 June 2018

Appeal

Recklessly Causing Grievous Bodily Harm

Admissibility of Evidence

Conviction

Unreasonable and Not Supported by Evidence

Circumstantial Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Flood-Smith v R [2018] NSWCCA 103
Hearing dates: 4 May 2018
Decision date: 01 June 2018
Before: Hoeben CJ at CL at [1];
Walton J at [152];
Button J at [153]
Decision:
(1) Leave to rely upon Ground of Appeal 1 is refused.
(2) In respect of Ground 2, leave to appeal is granted but the appeal is dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – recklessly causing grievous bodily harm – victim two year old daughter of applicant – whether evidence of admissions wrongly admitted – ss 90 and 137 of Evidence Act 1995 (NSW) – whether conviction unreasonable and not supported by the evidence – medical evidence that injuries deliberately inflicted – issue whether applicant committed offence – circumstantial case – reasonable hypothesis consistent with innocence excluded – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 35(2)
Criminal Appeal Act 1912 (NSW) – s 5(1)(b)
Criminal Appeal Rules – r 4
Evidence Act 1995 (NSW) – ss 88, 90, 137, 142
Cases Cited: ARS v R [2011] NSWCCA 266
Burns v R [1975] HCA 21; 132 CLR 258
Dickson v R [2017] NSWCCA 78
FDP v R [2008] NSWCCA 317; 74 NSWLR 645
Hawi v R [2014] NSWCCA 83
M v The Queen [1994] HCA 63; 181 CLR 487
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Obeid v R [2017] NSWCCA 221
Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
Poniris v R [2014] NSWCCA 100
R v Buckley [2004] 10 VR 215; 149 A Crim R 122
R v Burton [2013] NSWCCA 335
R v Le [2002] NSWCCA 186; 54 NSWLR 474
Shepherd v R [2011] NSWCCA 245
SKA v The Queen [2011] HCA 13; 243 CLR 400
Steve v R [2008] NSWCCA 231; 189 A Crim R 68
Category: Principal judgment
Parties: Nicole Rose Flood-Smith – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Lowe/J Leaver – Applicant
H Roberts – Crown
Solicitors:
Paul McGirr – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2012/387051
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 March 2016

Before:

Culver DCJ

File Number(s):

2012/387051

JUDGMENT

1 HOEBEN CJ at CL:

Offence and sentence

On 17 December 2015 the applicant was found guilty by a jury of an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence occurred on 30 August 2012. The victim was the applicant’s two year old daughter, “C”.
The applicant was sentenced by the trial judge, her Honour Judge Culver, on 11 March 2016 to imprisonment comprising a non-parole period of 3 years commencing 17 December 2015 and expiring 16 December 2018, with a balance of term of 2 years expiring 16 December 2020.
The applicant now seeks leave to appeal…

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 Flood-Smith v R

Details

AGLC: Flood-Smith v The Queen [2018] NSWCCA 103
Case: [2018] NSWCCA 103
Decision Date: 01 June 2018

CaseChat Overview and Summary

The appellant, Flood-Smith, sought to appeal his conviction for recklessly causing grievous bodily harm to his two-year-old daughter. The appeal was heard in the Court of Criminal Appeal in New South Wales. The primary issue in the appeal was whether the evidence of admissions made by the appellant was wrongly admitted under sections 90 and 137 of the Evidence Act 1995 (NSW) and whether the conviction was unreasonable and not supported by the evidence.

The court examined the legal framework provided by the Evidence Act and assessed whether the trial judge erred in admitting the evidence of admissions. The court also considered the medical evidence presented at trial, which suggested that the injuries were deliberately inflicted. The central issue was whether the appellant was the person who committed the offence. Given the circumstantial nature of the case, the court had to determine if a reasonable hypothesis consistent with the appellant's innocence was excluded by the evidence.

The court found that the trial judge did not err in admitting the evidence of admissions, as it was relevant and probative of the appellant's state of mind and conduct. The court further held that the medical evidence, along with other circumstantial evidence, sufficiently excluded any reasonable hypothesis of innocence and supported the appellant's conviction. Consequently, the appeal was dismissed, and the conviction was upheld.

The court did not make any further orders beyond dismissing the appeal.

Orders