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Court of Criminal Appeal 11 July 2018

Smith v R

[2018] NSWCCA 137

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION ROBBERY IN COMPANY WITH WOUNDING RELEVANCE DEFENCE

Citation: Smith v R [2018] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 11 July 2018
Judge(s): Bathurst CJ; Leeming JA; Adamson J

Background

The appellant was convicted on 1 February 2017 of robbery in company with wounding under s 98 of the Crimes Act 1900 (NSW). The offence arose from an incident on the evening of 19 November 2015, when the appellant and his co-accused attended the home of a 65-year-old complainant in Forster. The appellant assaulted the complainant, causing serious injuries including a lacerated forearm, spinal and rib fractures, and severe eye injuries. The co-accused was arrested shortly after, found in possession of the complainant's mobile phone.

The Crown case was that the appellant and his co-accused carried out a joint criminal enterprise: the appellant committed the wounding while the co-accused took the complainant's property. The defence did not dispute the wounding but contended the appellant had attended the premises only to purchase cannabis, that he acted in response to the complainant's conduct toward the co-accused, and that he never formed a common intention to rob anyone.

The central factual contest was whether the complainant's account, that the co-accused demanded his wallet during the assault, could be accepted by the jury given the inconsistencies in the complainant's evidence generally.

  • Whether the trial judge erred in admitting photographic evidence of the complainant's injuries when the appellant had already conceded the assault and wounding elements (relevance under ss 55 and 56, and discretionary exclusion under s 137 of the Evidence Act 1995).
  • Whether the jury's verdict was unreasonable and should be set aside, on the basis that the complainant's evidence was too inconsistent to support a finding of guilt beyond reasonable doubt.

Decision

Ground 1: Admission of photographs

Leeming JA noted that this ground was narrowly confined to whether the photographs were relevant at all. The appellant had conceded in his opening that the assault and wounding were not in dispute, but the Crown still bore the burden of proving all elements of the offence. The photographs were found to satisfy the relevance test in s 55 of the Evidence Act, as they could rationally affect the assessment of the probability of facts in issue. The trial judge also gave appropriate warnings to the jury against being distracted by the severity of the injuries from the real question at trial, namely whether a robbery had occurred. No error was established in admitting the photographs, and this ground was dismissed.

Ground 2: Unreasonable verdict

The appellant argued that the complainant's evidence was so compromised by inconsistencies in cross-examination that no jury could reasonably have accepted it. The key piece of evidence was the complainant's account that the co-accused demanded his wallet while the assault was underway. That account was, critically, unchallenged in cross-examination. Leeming JA held that the jury was entitled to accept that evidence notwithstanding other inconsistencies elsewhere in the complainant's testimony.

Adamson J added that, in assessing whether a verdict was unreasonable, the appellate court must give proper weight to the jury's advantage in seeing and hearing witnesses. The Court of Criminal Appeal's role is not to substitute its own fact-finding for that of the jury. Having reviewed all the evidence, Adamson J was satisfied it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. Ground 2 was also dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A conviction will not be set aside as unreasonable merely because a complainant's evidence contained inconsistencies, provided the jury was entitled to accept the critical parts of that evidence.
  • Under ss 55 and 56 of the Evidence Act 1995 (NSW), the question of whether evidence is relevant is a question of law: evidence either satisfies the relevance threshold or it does not.
  • Photographic evidence of a victim's injuries may remain relevant even where the wounding element is conceded, if it bears on other facts in issue at trial.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal reaffirmed that appellate courts must acknowledge the jury's significant advantage in observing witnesses, and must not allow an appeal to become a substitute for trial by jury, consistent with R v Baden-Clay (2016) 258 CLR 308.
  • Where a specific piece of evidence is left unchallenged in cross-examination, that circumstance may carry significant weight when an appellate court assesses whether the jury's acceptance of it was open on the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 55, 56, 137

Cases:
- 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