SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Smith (a pseudonym) v The Queen |
Citation: | [2021] ACTCA 16 |
Hearing Date: | 18 February 2021 |
DecisionDate: | 2 July 2021 |
Before: | Murrell CJ, Loukas-Karlsson and Charlesworth JJ |
Decision: | The appeal is allowed. Pursuant to section 37O(1)(d) of the Supreme Court Act 1933 (ACT), the verdicts of guilty in respect of counts 1, 2, and 3 are set aside and in lieu thereof, a verdict of not guilty is entered on each count |
Catchwords: | CRIMINAL LAW – APPEAL – Whether verdicts unreasonable having regard to the evidence – Whether trial judge failed to adhere to Liberato direction – Whether trial judge made impermissible consideration of “common knowledge” – Application of s 144 of the Evidence Act |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Criminal Code 1924 (Tas) sch 1 ss 2A, 14A Supreme Court Act 1933 (ACT) ss 37O, 68C |
Cases Cited: | Coughlan v The Queen [2020] HCA 15; 267 CLR 654 De Silva v The Queen [2019] HCA 48; 268 CLR 57 |
Texts Cited: | Australian Law Reform Commission, Uniform Evidence Law (Report No 102, February 2006) Richard Eggleston, Evidence, Proof and Probability (Weidenfeld & Nicolson, 2nd ed, 1983) |
Parties: | John Smith (a pseudonym) (Appellant) The Queen (Respondent) |
Representation: | Counsel B Walker SC with M Jones (Appellant) S Drumgold SC with K McCann (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 22 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 4 June 2020 Case Title: R v Smith (a pseudonym) Citation: [2020] ACTSC 142 |
MURRELL CJ:
Introduction
The appellant was tried by Mossop J (the trial judge), sitting as a judge alone, on charges that, on 28 April 2018, he committed three sexual offences against the complainant: one act of indecency without consent, contrary to s 60 of the Crimes…
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- AGLC
- Smith (a pseudonym) v The Queen [2021] ACTCA 16
- Case
- [2021] ACTCA 16
- Decision Date
CaseChat Overview and Summary
The appeal raised two primary grounds: first, that the verdicts of guilty were unreasonable having regard to the evidence and the trial judge's alleged failure to adhere to the "Liberato direction"; and second, that a miscarriage of justice had occurred due to the trial judge's impermissible consideration of "common knowledge" material, contrary to section 144 of the *Evidence Act 2011* (ACT), without affording the appellant an opportunity to address such material. The appellant did not challenge the trial judge's directions to himself, noting that a "Liberato direction" and other relevant directions had been given, alongside an observation that he was entitled to use his common sense and individual experience in assessing the evidence.
The Court found that the verdicts were unreasonable, particularly in light of the evidence presented and the application of the "Liberato direction". The reasoning focused on the assessment of the complainant's evidence, which contained inconsistencies and concessions regarding the nature and extent of consent, particularly in the context of the appellant's repeated assertions of not hearing the complainant's refusals and his subsequent confusion and self-harm. The Court concluded that the trial judge's reliance on "common knowledge" in assessing the credibility and voluntariness of the complainant's actions, without proper evidentiary foundation or opportunity for submissions, constituted an error.
Consequently, the appeal was allowed. Pursuant to section 37O(1)(d) of the *Supreme Court Act 1933* (ACT), the verdicts of guilty in respect of counts 1, 2, and 3 were set aside, and in lieu thereof, a verdict of not guilty was entered on each count.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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