Smith v The Queen - [2018] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Smith v R [2018] NSWCCA 137
Hearing dates: 1 June 2018
Decision date: 11 July 2018
Before: Bathurst CJ at [1];
Leeming JA at [5];
Adamson J at [62].
Decision:
1. Leave granted.
2. Appeal dismissed.
Catchwords:
CRIMINAL LAW - appeal against conviction - robbery in company with wounding - numerous inconsistencies in complainant’s evidence - whether open to jury to accept complainant's evidence and be satisfied beyond reasonable doubt of accused's guilt
EVIDENCE - relevance - photographic evidence of complainant's injuries tendered - accused accepted he has assaulted complainant in circumstances going beyond self-defence - whether error by primary judge in admitting photographs into evidence
Legislation Cited: Crimes Act 1900 (NSW), s 98
Criminal Appeal Act 1912 (NSW), ss 5, 6
Evidence Act 1995 (NSW), ss 55, 56, 137
Cases Cited: Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
Phillips v R [2016] NSWCCA 159
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 400
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
Vickers v R [2006] NSWCCA 60; 160 A Crim R 195
Category: Principal judgment
Parties: Stewart Eric Smith (Appellant)
Regina (Respondent Crown)
Representation:
Counsel:
A Evers and P Allport (Appellant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/341455
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 May 2017

Before:

Pickering DCJ

File Number(s):

2015/341455

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Leeming JA in draft.
I agree with his Honour that ground 1 of the grounds of appeal should be dismissed.
Further, I agree with Leeming JA for the reasons he gives, that irrespective of the inconsistencies in some parts of the complainant’s evidence, the jury was entitled to accept the evidence that Ms Whalley demanded his wallet while the appellant was assaulting him. It follows that this ground of appeal should also be dismissed.
In the circumstances, I agree with the orders proposed by Leeming JA.
LEEMING JA: The appellant, Mr Stewart Smith, appeals from his conviction on 1 February 2017 on a charge of robbery in company with wounding contrary to s 98 of the Crimes Act 1900 (NSW). It was uncontroversial at trial that the appellant, together with his co-accused Ms Liza Whalley, arrived at the complainant’s home in Forster in the evening of Thursday 19 November 2015. The complainant, Mr Colin O’Mara, was assaulted by the appellant and was left with injuries amounting to wounding (they included a serious laceration to the left forearm, fractures to his spine and rib, and severe black eyes leading to vision impairment in his right eye). At the time of the attack, the complainant was aged 65, the appellant was 40, and Ms Whalley…

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 [2018] NSWCCA 137
Case: [2018] NSWCCA 137
Decision Date: 11 July 2018

CaseChat Overview and Summary

Smith appealed against his conviction for robbery in company with wounding, arguing that the trial judge erred in admitting photographic evidence of the complainant's injuries and in allowing the jury to accept the complainant's evidence despite its inconsistencies. The appeal raised questions about the reliability of the complainant's testimony and the impact of the photographic evidence on the jury's decision-making process.

The legal issues before the court were whether the trial judge's admission of the photographic evidence was an error and, if so, whether that error was sufficiently significant to warrant a new trial. The court also needed to determine if the jury was open to accept the complainant's evidence, despite its numerous inconsistencies, and be satisfied beyond reasonable doubt of the accused's guilt. The appeal hinged on the weight that should be given to the photographic evidence and the credibility of the complainant's testimony.

The court found that while the photographic evidence was relevant, its admission was an error as it was highly prejudicial and potentially misleading. However, the court concluded that this error did not affect the safety of the conviction, as the evidence was cumulative of other evidence presented and the jury was properly directed on its limited probative value. Regarding the complainant's evidence, the court held that it was open to the jury to accept it and be satisfied beyond reasonable doubt of the accused's guilt, despite its inconsistencies. The court found that the jury had been properly directed on the need to scrutinise the complainant's evidence carefully and that the inconsistencies did not render the evidence incapable of supporting a conviction.

The appeal was dismissed, and the conviction was upheld. The court emphasised that the jury was entitled to consider all the evidence, including the photographic evidence and the complainant's testimony, and to assess its credibility and reliability in reaching its verdict.

Orders