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Court of Criminal Appeal 27 March 2013

SMITH v R

[2013] NSWCCA 64

Homicide
CRIMINAL LAW CONVICTION APPEAL MURDER CIRCUMSTANTIAL CROWN CASE BODY FOUND IN POOL OF BLOOD EVIDENCE OF EARLIER ALTERCATION

Citation: Smith v R [2013] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 27 March 2013
Judge(s): Hoeben CJ at CL (with whom Slattery J and Bellew J agreed)

Background

The appellant was convicted by a jury in the Supreme Court in July 2011 of the murder of a man found dead in a Fairfield car park in the early hours of 3 June 1995. The trial had taken place more than fifteen years after the death, with the appellant only identified as a suspect after his DNA was obtained following an unrelated minor arrest in 2007.

The Crown's case was entirely circumstantial. It alleged that the appellant, after attempting to steal the deceased's wallet during a street altercation, followed the deceased into the car park and inflicted a fatal head injury. The deceased died from a subdural haemorrhage caused by blunt trauma to the back of the head.

Critically, the Crown's own evidence established that during the initial street altercation, a third party described as a man with dreadlocks had assaulted both the appellant and the deceased. The defence argued throughout the trial that this third party, rather than the appellant, could have caused the fatal injury. The appellant exercised his right to silence and did not give evidence.

  • Whether the jury verdict of guilty was unreasonable, or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912
  • Whether the trial judge erred in directing the jury on the credibility warning applicable to the witness Ian Cross

Decision

On the first and decisive ground, Hoeben CJ at CL applied the established test for unreasonable verdicts: whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of the appellant's guilt. The court undertook its own independent assessment of the evidence rather than simply reviewing whether the jury could have reached its conclusion.

The court accepted that the DNA evidence placed the appellant's DNA inside the discarded shoes (which had the deceased's blood on them) and on the deceased's rear pants pocket. This evidence was consistent with the Crown's theory that the appellant had stolen the deceased's shoes and wallet. However, the court found that the DNA evidence, the eyewitness accounts, and the medical evidence together could not exclude a reasonable possibility that the man with dreadlocks had delivered the fatal blow to the deceased during or immediately after the first altercation.

The medical evidence indicated that the deceased's injury was consistent with being kicked or struck to the back of the head while on the ground, but was also consistent with other scenarios. Eyewitness evidence established that the man with dreadlocks had assaulted the deceased and pursued him toward the corner, and there was no direct evidence of what occurred in the car park. The court concluded that the Crown had not excluded, beyond reasonable doubt, the reasonable possibility that the dreadlocked man caused the death, and accordingly the verdict was unreasonable.

On the second ground, concerning whether the trial judge should have given a specific unreliability direction regarding the witness Ian Cross (who had been drinking heavily before the incident), the court found no appealable error. The trial judge had given comprehensive warnings to the jury about the Crown's obligations and had directed them to scrutinise the evidence carefully. Even accepting any technical deficiency in the direction, its effect on the jury's deliberations would have been minimal given the thoroughness of the summing up overall. Leave to appeal on that ground was refused.

Orders Made

  • Leave to appeal granted on the first ground (unreasonable verdict)
  • Appeal on the first ground allowed
  • Verdict of guilty entered on 7 July 2011 quashed and a verdict of acquittal entered in favour of the appellant
  • Leave to appeal refused on the second ground (jury direction)

Key Takeaways

  • A conviction resting entirely on circumstantial evidence cannot stand where the Crown case, taken as a whole, fails to exclude a reasonable hypothesis consistent with innocence, even where the DNA evidence is otherwise cogent.
  • The Court of Criminal Appeal confirmed that, on an unreasonable verdict ground, the appellate court must conduct its own independent assessment of the evidence rather than simply ask whether the jury's conclusion was theoretically available.
  • Where eyewitness evidence establishes the presence and violent conduct of an unidentified third party, and the medical evidence does not exclude that party as the cause of death, the Crown bears the burden of excluding that scenario beyond reasonable doubt.
  • No error was established in the trial judge's failure to give a witness-specific unreliability direction, where the summing up comprehensively and repeatedly reminded the jury of the Crown's obligations by reference to the particular facts of the case.
  • A verdict of acquittal, rather than an order for retrial, is the appropriate outcome where the evidence is legally insufficient to support the conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW)

Cases:
- SKA v R [2011] HCA 13; 243 CLR 400
- MFA v R [2002] HCA 53; 213 CLR 606
- M v R [1994] HCA 63; 181 CLR 487
- R v Kanaan [2005] NSWCCA 385; 157 A Crim R 238
- Carney v R; Cambey v R [2011] NSWCCA 223
- Picken v R [2007] NSWCCA 319
- R v Wilson [2005] NSWCCA 20