Citation: Flood-Smith v R [2018] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 1 June 2018
Judge(s): Hoeben CJ at CL; Walton J; Button J
Background
The appellant was convicted by a jury in December 2015 of recklessly causing grievous bodily harm to her two-year-old daughter, contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence occurred in August 2012, when the child was found with severe injuries including three jaw fractures, facial bruising, a pelvic fracture, and trauma to the liver and pancreas. The appellant had been temporarily residing with a friend, and the child's father was not present at the house overnight when the injuries occurred.
The appellant's account to hospital staff and police was that she had last seen her daughter uninjured at around 1am and discovered the injuries when woken at 6.30am. She suggested the child may have fallen while attempting to climb to an upper bunk. The Crown's case was entirely circumstantial, relying on medical evidence, the appellant's opportunity to assault the child, and statements she made to other household members after discovering the injuries.
The appellant was sentenced to a total term of five years' imprisonment, with a non-parole period of three years. She sought leave to appeal her conviction on two grounds: that certain admission evidence was wrongly admitted or not properly directed upon, and that the verdict was unreasonable and unsupported by the evidence.
Legal Issues
- Whether the trial judge erred in failing to exclude ambiguous or equivocal admissions under ss 90 and 137 of the Evidence Act 1995 (NSW).
- Whether the trial judge erred in failing to direct the jury that they could not act on an admission unless satisfied the words were intended as an admission of guilt rather than bearing some other innocent meaning.
- Whether the trial advocate's conduct in inviting the jury to rely on those admissions was a further source of miscarriage.
- Whether the guilty verdict was unreasonable or could not be supported by the evidence, applying the test under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
Decision
Ground 1: Admission evidence. The Court refused leave to rely on Ground 1. Although the precise basis for refusal is not detailed in the extracted portions of the judgment, the Court's treatment of the appellant's statements to Ms Porter is instructive. The phrases "I don't know what's happened" and "I don't know what I've done," together with the repetition of "I don't know what I've done" in response to being asked "What did you do?", were treated by the Court as capable of constituting admissions. Hoeben CJ at CL concluded those words were capable of being understood as acknowledgment that the appellant had assaulted the child but was distressed at the severity of the injuries.
Ground 2: Unreasonable verdict. The Court granted leave but dismissed the appeal on this ground. Hoeben CJ at CL conducted an independent review of all the evidence, as required by the authorities on unreasonable verdict appeals. His Honour was satisfied the jury could find beyond reasonable doubt that the appellant inflicted the injuries, noting the strength of the medical evidence excluding an accidental fall as the cause, the absence of any other identified person who could have committed the assault, and the implausibility of an undetected intruder. The evidence connecting any other occupant of the house to the injuries was non-existent, and speculation about alternative perpetrators did not amount to a reasonable hypothesis consistent with innocence.
Button J, in a brief concurrence, added that on his own independent assessment all rational hypotheses other than the appellant's guilt had been excluded beyond reasonable doubt. Walton J also agreed with the Chief Judge's reasons in full.
Orders Made
- Leave to rely on Ground 1 is refused.
- In respect of Ground 2, leave to appeal is granted but the appeal is dismissed.
Key Takeaways
- A conviction appeal on the ground of unreasonable verdict requires the appellate court to conduct its own independent assessment of the evidence, not merely ask whether the jury could have reached the verdict.
- In a circumstantial case, a conviction is supportable where the evidence excludes all rational hypotheses consistent with innocence beyond reasonable doubt; speculation about unidentified or otherwise unconnected alternative perpetrators does not constitute a reasonable hypothesis.
- Ambiguous statements made in distress after a victim's injuries are discovered can still be capable of constituting admissions, depending on the words used and the context in which they were made.
- The Court of Criminal Appeal confirmed that the highly emotional response of an accused upon seeing the extent of injuries is not necessarily inconsistent with guilt; it may be equally consistent with the accused being unaware of the severity of harm when it was inflicted.
- Refusing leave on an admissions ground does not prevent the court from granting leave on a separate unreasonable verdict ground; the two grounds are assessed independently.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), ss 88, 90, 137, 142
- Criminal Appeal Rules, r 4
Cases:
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- M v The Queen [1994] HCA 63; 181 CLR 487
- Burns v R [1975] HCA 21; 132 CLR 258
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- FDP v R [2008] NSWCCA 317; 74 NSWLR 645
- R v Le [2002] NSWCCA 186; 54 NSWLR 474
- Hawi v R [2014] NSWCCA 83
- Obeid v R [2017] NSWCCA 221
- Dickson v R [2017] NSWCCA 78
- Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
- ARS v R [2011] NSWCCA 266
- Steve v R [2008] NSWCCA 231; 189 A Crim R 68
- Shepherd v R [2011] NSWCCA 245
- Poniris v R [2014] NSWCCA 100
- R v Burton [2013] NSWCCA 335
- R v Buckley [2004] 10 VR 215; 149 A Crim R 122