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Court of Criminal Appeal 24 July 2019

Smith v R

[2019] NSWCCA 162

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL APPLICANT ACQUITTED ON OTHER TWO COUNTS SAME COMPLAINANT FOR ALL CHARGES

Citation: Smith v R [2019] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 24 July 2019
Judges: Hoeben CJ at CL, Davies J, Fagan J

Background

The applicant was tried before a judge alone in the District Court on five counts arising from his conduct toward the complainant, with whom he had been in an abusive and dysfunctional relationship. The complainant was functionally illiterate and had provided multiple statements and recorded interviews over several years. The applicant did not give evidence at trial; his police record of interview was tendered.

The first two counts concerned an alleged sexual assault at a friend's Redfern premises in November 2012, referred to throughout as the "Redfern Incident." The third count involved an alleged knife-to-throat incident in 2015 (the "Knife Incident"). Counts four and five related to a shotgun threat and a subsequent alleged sexual assault occurring on the same day as the knife incident.

The trial judge convicted the applicant on Counts 1, 2, and 3, and acquitted him on Counts 4 and 5. An aggregate sentence of seven years' imprisonment with a non-parole period of four years and six months was imposed. The applicant sought leave to appeal against the convictions.

  • Whether the guilty verdicts on Counts 1, 2, and 3 were unreasonable, having regard to the quality of the evidence and the not-guilty verdicts on Counts 4 and 5
  • Whether the trial judge failed to give himself an adequate hearsay warning regarding complaint evidence given by three witnesses (Paul Claxton, Keith Saunders, and Kerry Smethurst)

Decision

Ground 1: Unreasonable verdicts

The Court granted leave to appeal on this factual ground and considered the verdicts carefully. The trial judge had provided detailed reasons explaining why he was not satisfied beyond reasonable doubt on Counts 4 and 5. The absence of corroboration for those counts was a significant factor, as was the complainant's inconsistent accounts and the evidence of her daughter, which differed from what the complainant claimed to have reported. By contrast, for Counts 1, 2, and 3, corroborative complaint evidence existed from witnesses Saunders, Claxton, and Smethurst, all of whom the trial judge accepted.

The Court was satisfied that the verdicts were not inconsistent in any legally problematic way. The acquittals were explicable by the lack of corroboration and the reliability difficulties particular to those counts, not by any general rejection of the complainant's credibility. Applying the principles reviewed in the recent decision of AH v R [2019] NSWCCA 152, the Court found no error in the trial judge's reasoning and dismissed this ground.

Ground 2: Hearsay warning

Trial counsel for the applicant had not sought a hearsay warning (under s 165 of the Evidence Act 1995) at trial, meaning leave was required under r 4 of the Criminal Appeal Rules before the ground could be advanced. The applicant was also unable to identify and formulate the precise direction said to have been required. The Court refused leave on this ground, noting that the failure to seek the direction at trial was a material consideration.

Orders Made

  • Leave to appeal against conviction granted with respect to Ground 1
  • Leave to appeal refused with respect to Ground 2
  • Appeal dismissed

Key Takeaways

  • Inconsistent verdicts in a multi-count trial are not automatically unreasonable: where acquittals on some counts are explicable by the absence of corroboration or particular reliability difficulties, convictions on other counts supported by complaint evidence may stand.
  • A conviction is not rendered unreasonable merely because a complainant gave evidence containing inconsistencies across multiple statements and at trial, provided the trial judge engaged carefully with those inconsistencies and identified corroborative support for the counts in question.
  • Under r 4 of the Criminal Appeal Rules, leave is required to advance a complaint about a missing direction where trial counsel did not seek that direction at trial. The failure to identify and articulate the precise direction allegedly required will weigh against the grant of leave.
  • The Court of Criminal Appeal confirmed that the framework for analysing apparently inconsistent verdicts set out in AH v R [2019] NSWCCA 152 applies to judge-alone trials, where the inquiry focuses on the adequacy and consistency of the trial judge's stated reasoning.
  • Complaint evidence from third-party witnesses can serve as corroboration distinguishing counts on which a conviction is returned from counts on which an acquittal follows, particularly where the Crown concedes the absence of any corroboration for the latter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B, 61I, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), ss 133, 166
- Evidence Act 1995 (NSW), s 165

Cases:
- AH v R [2019] NSWCCA 152
- Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Greenhalgh v R [2017] NSWCCA 94
- Groundstroem v R [2013] NSWCCA 237
- M v The Queen (1994) 181 CLR 487
- Picken v R; R v Picken [2007] NSWCCA 319
- Roos v R [2019] NSWCCA 67