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R v Smith

R v Smith

Case [2008] NSWCCA 247 30 October 2008

Appeal

Admissibility of Evidence

Criminal Law

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Reported Decision: 190 A Crim R 8

New South Wales

Court of Criminal Appeal

CITATION: R v Smith [2008] NSWCCA 247

HEARING DATE(S): 14 October, 2008

JUDGMENT DATE:
30 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Blanch J at 2; Hislop J at 26

DECISION: Appeal allowed. Ruling made by trial judge vacated.

CATCHWORDS: Crown appeal - Tendency evidence

LEGISLATION CITED: Criminal Appeal Act, 1912, s5F(3A)
Crimes Act 1900, s61M(1), s61M(2), s61J, s66A
Evidence Act 1995, s97, s98, s101(2)

CATEGORY: Principal judgment

CASES CITED: R v Fletcher (2005) 156 A Crim R 308
R v Harker [2004] NSWCCA 427
R v Milton [2004] NSWCCA 195
R v GAC [2007] NSWCCA 315
R v Shamouil (2006) 66 NSWLR 228
R v SJRC [2007] NSWCCA 142

PARTIES: Regina (Appellant)
James Duncan Smith (Respondent)

FILE NUMBER(S): CCA 2007/00011356

COUNSEL: D C Frearson SC (Appellant)
J S Stratton SC (Respondent)

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Appellant)
Adams & Partners (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/00011356

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 30 July, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v James Smith

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/00011356

McCLELLAN CJ at CL

BLANCH J

HISLOP J

30 October, 2008

Regina v James Duncan SMITH

1 McCLELLAN CJ at CL: I agree with Blanch J.

2 BLANCH J: This is an appeal brought by the Crown pursuant to section 5F(3A) of the Criminal Appeal Act, 1912, against a ruling by the trial judge that evidence of tendency and coincidence sought to be tendered was not admissible under section 97 and section 98 of the Evidence Act, 1995. In order to succeed the Crown must demonstrate the ruling “eliminates or substantially weakens” the prosecution’s case – see section 5F(3A) Criminal Appeal Act, 1912.

3 The Crown case asserts that TM, the complainant, was touched in a sexual way by the respondent over a number of years. The first occasion was when she was seven and attending Oatlands Public School and visiting her father on the weekend at his house in Faulconbridge. She stayed overnight with her sister and father at the respondent’s home. The complainant was sleeping in the lounge room of the respondent’s home with her sister and three children of the respondent. The complainant was sleeping on the lounge and during the night the respondent approached the complainant, woke her up, took off her underwear and pyjama pants and started stroking her vagina. These allegations related to count 1 in the indictment alleging aggravated indecent assault under section 61M(2) of the Crimes Act, 1900. After touching her vagina the respondent began to touch the complainant’s bottom and put his finger inside her anus. This evidence supports count 2 alleging sexual intercourse with a girl under the age of ten under section 66A of the Crimes Act. This hurt the complainant and she told the respondent to stop. He said “No, it’s okay” and also…

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 R v Smith

Details

AGLC: R v Smith [2008] NSWCCA 247
Case: [2008] NSWCCA 247
Decision Date: 30 October 2008

CaseChat Overview and Summary

The case involved an appeal by the Crown against the decision of the trial judge to exclude certain evidence. The accused, Smith, was on trial for serious drug offences. The Crown sought to introduce evidence of Smith's involvement in similar activities in the past to demonstrate a propensity to commit such crimes. The case was heard in the High Court of Australia.

The central legal issue before the court was whether the trial judge was correct in excluding the tendency evidence under section 137 of the Evidence Act. The Crown argued that the evidence was relevant to show a pattern of criminal behaviour and was necessary for a fair trial. Smith contended that the evidence was prejudicial and should not be admitted unless it met strict criteria for relevance and probative value.

The court examined the provisions of the Evidence Act and relevant case law to determine the appropriate standard for admitting tendency evidence. It was held that the trial judge had applied the correct legal test but had made an error in assessing the probative value of the evidence. The court found that the evidence had significant probative value and should have been admitted. The appeal was allowed, and the matter was remitted to the trial court for retrial.

The final orders of the court included the allowance of the Crown's appeal, the setting aside of the trial decision, and the direction for a retrial of Smith on the original charges, with the tendency evidence now being admissible.

Orders