R v Smith (a pseudonym)

The applicant, the Director of Public Prosecutions (ACT), sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The dispute concerned the quashing of the respondent's convictions by a majority of two to one in the Court of Appeal. The applicant argued that the Court of Appeal erred in its reasoning and that this error occasioned a significant injustice, warranting the grant of special leave to appeal.

The central legal issues before the High Court were twofold: first, the extent to which an appellate court can consider a differently nuanced case on appeal compared to the case presented at first instance, particularly when conducting an independent examination of the record; and second, the procedural fairness obligations that arise if an appellate court does consider such a differently nuanced case. The applicant contended that the Court of Appeal had quashed the convictions on a basis that was not properly canvassed at trial or on appeal, thereby raising significant points of principle regarding the application of the principles established in *M v The Queen* and affirmed in *Pell v The Queen*.

The applicant's primary submission was that the case was conducted at both trial and appeal on an "all or nothing" basis, meaning the Crown had to prove each element of the offence beyond reasonable doubt based on the complainant's evidence. The applicant argued that the Court of Appeal's majority judgments, which relied on differing reasoning, improperly introduced the issue of recklessness as a basis for quashing the convictions, despite it not being a live issue as presented by the parties. The applicant asserted that this approach departed from proper legal principle and that the Court of Appeal failed to afford procedural fairness by considering a case not run by the parties. The respondent, however, argued that recklessness was a fault element of the offence that remained in play throughout the proceedings and that the Court of Appeal's decision was open to it.

The High Court granted special leave to appeal.