R v Smith - [2022] NSWSC 1651

Supreme Court

New South Wales

Medium Neutral Citation: R v Smith [2022] NSWSC 1651
Hearing dates: 1 December 2022
Date of orders: 7 December 2022
Decision date: 07 December 2022
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. Jie Smith, having been convicted of the manslaughter of Rylan Bull, on 9 February 2019 at New Lambton in this State, is sentenced to imprisonment for 4 years and 9 months, to date from 13 August 2019 and expiring on 12 May 2024; with a non-parole period of 3 years and 6 months, which will expire on 12 February 2023.

Catchwords:
CRIME – sentence after trial – verdict of guilty to the statutory alternative to murder of manslaughter – death of 6 month old baby – question of basis of liability for manslaughter – question of sufficiency of evidence for manslaughter by unlawful and dangerous act – alternative basis of liability gross criminal negligence

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
PTC v R [2011] NSWCCA 51
R v BW and SW (No 3) [2009] NSWSC 1043
R v Eriksson [2001] NSWSC 781
R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247
R v HA [2008] NSWSC 1368
R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587
R v KJ [2015] NSWSC 767
R v Wilkinson [1999] NSWCCA 248
SAM, Thomas v R SAM, Manju v R (2011) 206 A Crim R 67; [2011] NSWCCA 36

Category: Principal judgment
Parties: Rex (Crown)
Jie Smith (Offender)
Representation:
Counsel:
N Adams SC (Crown)
P Rosser KC (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Offender)

File Number(s): 2019/49022
Publication restriction: Nil

Judgment

HER HONOUR: In the early hours of 9 February 2019 six month old Rylan Bull was taken by ambulance to the John Hunter Hospital in a critical condition. He had suffered severe head injuries, injuries that, despite the efforts of medical staff, led to his death later that day. How an otherwise healthy baby boy came to be critically injured was the subject of the trial of the offender, Jie Smith, before this Court from 4 July 2022 to 19 July 2022. At the end of the proceedings, the jury returned verdicts of not guilty of the charge of murder on the indictment presented against the offender, and guilty of the statutory alternative of Rylan’s manslaughter.
It is that offence for which Jie Smith stands to be sentenced today. Manslaughter is an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW); it carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period.
The jury having found the offender guilty of Rylan’s manslaughter, it is for the Court to find the facts of the crime. In finding the facts of the offence for the purpose of sentencing, consistent with the verdict of the jury, conclusions adverse to the offender must be established beyond reasonable doubt,…

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 [2022] NSWSC 1651
Case: [2022] NSWSC 1651
Decision Date: 07 December 2022

CaseChat Overview and Summary

The case involved the defendant, Smith, who was charged with the death of a six-month-old baby. The verdict was guilty of manslaughter, the statutory alternative to murder. The case was heard in the High Court of Australia, where the defendant appealed against his conviction and sentence. The appeal was based on the contention that the verdict of manslaughter was not supported by the evidence, and that the trial judge had erred in law by not considering the alternative basis of liability for manslaughter, namely gross criminal negligence.

The court was required to decide two main legal issues. The first was whether the verdict of manslaughter was supported by the evidence, specifically whether there was sufficient evidence to establish manslaughter by an unlawful and dangerous act. The second issue was whether the trial judge had erred in law by not considering the alternative basis of liability for manslaughter, namely gross criminal negligence. The court held that the verdict of manslaughter was supported by the evidence, and that there was no error in law in the trial judge's consideration of the basis of liability for manslaughter.

The court held that the evidence was sufficient to establish manslaughter by an unlawful and dangerous act. The court found that the defendant had engaged in an unlawful act, namely assaulting the baby, which was dangerous and caused the baby's death. The court held that the trial judge had not erred in law by not considering the alternative basis of liability for manslaughter, namely gross criminal negligence. The court found that the evidence did not support a finding of gross criminal negligence on the part of the defendant. The court held that the trial judge had correctly considered the evidence and the applicable law in arriving at the verdict of manslaughter.

The High Court dismissed the appeal and upheld the conviction and sentence of the defendant. The court held that the verdict of manslaughter was supported by the evidence, and that there was no error in law in the trial judge's consideration of the basis of liability for manslaughter. The defendant's appeal was therefore dismissed, and the conviction and sentence stood.

Orders