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Court of Criminal Appeal 2 August 2013

Smith v R

[2013] NSWCCA 182

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE ROBBERY WITH WOUNDING APPEAL AGAINST CONVICTION ALLOWED

Citation: Smith v R [2013] NSWCCA 182
Court: Court of Criminal Appeal, NSW
Date: 2 August 2013
Judge(s): Latham J, Button J, Barr AJ

Background

The appellant was convicted in the District Court in November 2011 of robbery with wounding under s 96 of the Crimes Act 1900, arising from an incident on 1 October 1998 in which a taxi driver was robbed and stabbed. Despite the offence occurring in 1998, the appellant was not arrested and charged until January 2011, more than twelve years later.

The Crown case was entirely circumstantial except for two categories of evidence: alleged admissions made by the appellant in the presence of a neighbour and during a telephone conversation intercepted on 15 December 2010, and the testimony of an alleged co-offender. The victim had been unable to identify the appellant in a photo array in 2010, and had in fact positively identified a different person (who later died) shortly after the original offence.

The appellant challenged the admission of the intercepted telephone conversation, the directions given to the jury in relation to that conversation, and the directions given regarding the co-offender's evidence.

  • Whether the trial judge erred in admitting the intercepted telephone conversation of 15 December 2010 as evidence of an admission by the appellant
  • Whether the trial judge gave adequate directions to the jury about how to use that telephone intercept evidence
  • Whether the trial judge gave adequate directions about the co-offender's evidence
  • Whether any error, if established, was sufficiently serious to quash the conviction or whether the proviso (which allows a conviction to stand despite error, where no substantial miscarriage of justice has occurred) should apply

Decision

The Court of Criminal Appeal found that the trial judge had erred materially in admitting the intercepted telephone conversation. The real probative value of that evidence was outweighed by the danger of unfair prejudice to the appellant. The conversation, taken in context, was at least as consistent with the appellant reacting sarcastically or angrily to his mother's persistent comments about a police investigation as it was with a genuine admission of involvement in the offence.

The Court also found the jury directions concerning the telephone intercept to be inadequate. The summing up did not link the need to draw a specific inference from the conversation to the Crown's case, did not refer to the terms of the intercepted conversations, and contained no caution against using the evidence simply as evidence of bad character.

On the question of whether the proviso should apply, the Court declined to allow the conviction to stand. The remaining evidence was not compelling: the co-offender witness had credibility problems and a potential motive to falsely implicate the appellant; the neighbour's evidence of overheard conversations was equally open to innocent interpretation; there was no identification of the appellant by the victim; and there was independent evidence placing the appellant on a joyride in a work vehicle on the night of the offence, which was inconsistent with the co-offender's account. The appellant had lost a real chance of acquittal as a result of the wrongful admission.

All three judges agreed that the conviction should be quashed and a new trial ordered.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that evidence with real probative value may still be inadmissible where that value is outweighed by the danger of unfair prejudice, including the risk that a jury will treat the evidence as proof of bad character rather than proof of the specific fact in issue.
  • Adequate jury directions in cases involving alleged admissions must link the evidence directly to the inference the Crown asks the jury to draw, rather than leaving the jury to reason from general propensity.
  • Where a conviction rests on a combination of a wrongly admitted admission, a co-offender witness with credibility problems, and an absence of identification evidence, the proviso will not rescue the verdict.
  • A positive identification of a different person by the victim, made closer in time to the offence, formed part of the Court's assessment that the remaining evidence was insufficiently compelling to sustain the conviction.
  • Refusing to apply the proviso, the Court emphasised that the appellant had lost a real chance of acquittal, a standard that focuses on what might have occurred had the error not been made rather than on whether guilt was probable.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 96 (robbery with wounding)

Cases:
No cases were cited in the metadata or in the portions of the judgment provided.