Medium Neutral Citation: Smith v R [2019] NSWCCA 162
Hearing dates: 29 April 2019
Date of orders: 24 July 2019
Decision date: 24 July 2019
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Fagan J at [112]
Decision:
(1) Grant leave to appeal against conviction with respect to ground 1.

(2) Refuse leave to appeal with respect to ground 2.
(3) Dismiss the appeal.
Catchwords:
CRIMINAL LAW – appeals – appeal against conviction – judge alone trial – applicant found guilty of two offences of sexual intercourse without consent and one offence of use an offensive weapon with intent to commit an indictable offence – applicant acquitted on other two counts – same complainant for all charges – applicant and complainant in a dysfunctional and abusive relationship – the two sexual intercourse offences for which the applicant was convicted occurred on the same night – early complaint to friends – offensive weapon offence committed on later occasion – early complaint to neighbour – whether the verdicts of guilty for the first three offences was unreasonable in light of the nature and quality of the evidence and the verdicts of not guilty for the other two offences – whether the complainant’s evidence was reliable – where inconsistencies in complainant’s evidence considered at length by the trial judge – acquittal on final two counts heavily informed by the lack of corroboration – verdict not unreasonable.
EVIDENCE – hearsay – warnings – failure to give hearsay warning – where trial counsel did not seek the direction now complained of – applicant failed to identify and formulate the direction said to have been required at trial – r 4 Criminal Appeal Rules – leave not granted to advance this ground of appeal
Legislation Cited: Crimes Act 1900 (NSW) ss 33B, 61I, 61J
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Criminal Appeal Act 1912 (NSW) s 5
Criminal Appeal Rules (NSW) r 4
Criminal Procedure Act 1986 (NSW) ss 133, 166
Evidence Act 1995 (NSW) s 165
Cases Cited: AH v R [2019] NSWCCA 152
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Greenhalgh v R [2017] NSWCCA 94
Groundstroem, Christoffer Andreas v R [2013] NSWCCA 237
M v The Queen (1994) 181 CLR 487
Picken v R; R v Picken [2007] NSWCCA 319
Roos v R [2019] NSWCCA 67
Texts Cited: Nil
Category: Principal judgment
Parties: Robin Mark Smith (Applicant)
Crown (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
B Hatfield (Respondent)
Solicitors:
C Hunter (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/214922
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

15 December 2016

Before:

Bozic SC DCJ

File Number(s):

2015/214922

Judgment

HOEBEN CJ AT CL: I agree with the reasons of Davies J and the orders which he…

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 v The Queen

Details

AGLC: Smith v The Queen [2019] NSWCCA 162
Case: [2019] NSWCCA 162
Decision Date: 24 July 2019

CaseChat Overview and Summary

In the case of Smith v The Queen, the applicant appealed against his conviction for two counts of sexual intercourse without consent and one count of use of an offensive weapon with intent to commit an indictable offence. The trial was heard by a judge alone in the County Court of Victoria. The applicant was acquitted on two other counts related to the same complainant, with whom he was in a dysfunctional and abusive relationship. The sexual intercourse offences for which the applicant was convicted occurred on the same night, while the offensive weapon offence was committed on a later occasion. The applicant argued that the verdicts of guilty for the first three offences were unreasonable due to the nature and quality of the evidence and the verdicts of not guilty for the other two offences, questioning the reliability of the complainant's evidence. Additionally, the applicant raised an issue regarding the failure to give a hearsay warning where the trial counsel did not seek such a direction.

The court examined the inconsistencies in the complainant's evidence, which had been considered at length by the trial judge. It was noted that the acquittal on the final two counts was heavily influenced by the lack of corroboration. The court held that the verdict was not unreasonable, given the trial judge's assessment of the evidence. Furthermore, the court addressed the hearsay warning issue, finding that the applicant had failed to identify and formulate the direction that was allegedly required at trial. Under rule 4 of the Criminal Appeal Rules, leave was not granted to advance this ground of appeal. The applicant's appeal was dismissed, and the original convictions were upheld.

The final orders of the court were that the appeal against conviction was dismissed, and the original convictions for the two counts of sexual intercourse without consent and one count of use of an offensive weapon with intent to commit an indictable offence were upheld. The acquittal on the other two counts remained. The court's decision underscored the importance of the trial judge's assessment of the evidence and the reliability of the complainant's testimony, as well as the procedural requirements for raising issues such as hearsay warnings in criminal appeals.

Orders