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Smith (a pseudonym) v The King

Smith (a pseudonym) v The King

Case [2025] NSWCCA 145 17 September 2025

Admissibility of Evidence

Appeal

Limitation Periods

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Smith (a pseudonym) v R [2025] NSWCCA 145
Hearing dates: 13 August 2025
Date of orders: 17 September 2025
Decision date: 17 September 2025
Before: Stern JA [1];
Cavanagh J at [114];
Yehia J at [115]
Decision:
Leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is refused.

Catchwords:
CRIMES – appeals – admissibility of evidence related to sexual experience – whether exclusion of evidence relating to child’s sexual experience resulted in a miscarriage of justice
CRIMES – appeals – leave to appeal – where evidentiary ruling applicant says should have been given was not sought before the trial judge – where leave to appeal required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where decision at trial was an objectively rational decision – leave to appeal refused

Legislation Cited:
Crimes Act 1900 (NSW) ss 61J, 66C
Criminal Appeal Act 1912 (NSW) s 5(1)(b)
Criminal Procedure Act 1986 (NSW) s 294CB
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
Brawn v The King [2025] HCA 20
Cook (a pseudonym) v The King [2024] HCA 26
Gould v R [2023] NSWCCA 103; 377 FLR 26
Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Radburn (a pseudonym) v R [2025] NSWCCA 125
Rowney v R [2007] NSWCCA 49
Taleb v R [2015] NSWCCA 105
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
WHS v R [2024] NSWCCA 242

Category: Principal judgment
Parties: Smith (Applicant)
Rex (Respondent)
Representation:
Counsel:
D McMahon (Applicant)
M Millward (Crown)
Solicitors:
Lamont Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2022/307727
Publication restriction: Sections 578A of the Crimes Act 1900 (NSW) and 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prevent the publication of any matter which is likely to lead to the identification of the complainant including her name and the names of close family members who gave evidence and/or were mentioned during the trial.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

31 May 2024

Before:

Mendes DCJ

File Number(s):

2022/307727

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 31 May 2024 the applicant was convicted on four counts of sexual offending (and was acquitted on two counts). The offending occurred between 1 August 2021 and 30 September 2022 when the complainant, who turned 12 in late 2020, was 12 or 13 years old. The applicant is the half-uncle of the complainant on her father’s side. The complainant began living with the applicant and his family when she was about seven years old, shortly after conduct which occurred in 2017…

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 Smith (a pseudonym) v The King

Details

AGLC: Smith (a pseudonym) v The King [2025] NSWCCA 145
Case: [2025] NSWCCA 145
Decision Date: 17 September 2025

CaseChat Overview and Summary

In this appeal, the respondent, known as Smith, sought to challenge the admissibility of evidence related to a child’s sexual experience in a criminal trial. The case was heard and determined by the Supreme Court of New South Wales. The trial judge had excluded certain evidence related to the sexual experience of the child, which the respondent argued was crucial to their defence and the exclusion of which had caused a miscarriage of justice.

The primary legal issues before the court were whether the exclusion of evidence related to the child’s sexual experience was justified and whether the appeal should be allowed despite not seeking leave from the trial judge as required by the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The respondent argued that the trial judge’s decision was flawed and prejudicial to their defence. The court had to determine if the appeal was justified and whether the exclusion of the evidence led to an unfair trial.

The court held that the trial judge’s decision was an objectively rational one, consistent with the principles of fairness and relevance in the admission of evidence. The court emphasised that the decision not to admit the evidence was in line with the protection of the child’s rights and welfare. Additionally, the court noted that the respondent had not sought leave from the trial judge to appeal the evidentiary ruling, as required by the relevant rules. Consequently, the court found that the appeal should be dismissed because the decision at trial was rational and the procedural requirements for an appeal were not met. The court ruled that there was no miscarriage of justice, and the appeal was accordingly refused.

Orders