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Court of Criminal Appeal 9 December 2022

Smith v R

[2022] NSWCCA 267

Sexual offencesAssault & violence
CRIM E APPEAL CONVICTION FRESH EVIDENCE NOT AVAILABLE AT TRIAL MISCARRIAGE OF JUSTICE

Citation: Smith v R [2022] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 9 December 2022
Judge(s): Beech-Jones CJ at CL, Price J, Chen J (reasons by Chen J, others agreeing)

Background

The appellant was convicted in the District Court on 15 September 2020 of eight offences involving indecent assault, sexual intercourse, attempted sexual intercourse, and common assault against his two young nieces. The alleged offences occurred between 1 January 2011 and 31 December 2013 at a family property in Auburn, NSW, where the appellant resided with the complainants and other family members.

A central plank of the Crown case was a series of "admissions" made by the appellant during a pre-text phone call (in which an undercover police officer posed as one of the complainants) and a subsequent recorded police interview. The appellant did not give evidence at trial and denied all allegations.

After conviction but before sentencing, the appellant's legal representatives became aware for the first time that he had a clinically diagnosable intellectual disability. Expert psychological and psychiatric reports established that his intellectual functioning placed him in the lowest 5% of the population, and that his receptive and expressive language skills were at an age equivalent of slightly over four years. This information had not been known to the appellant's solicitor or counsel during the trial.

  • Whether the post-trial expert evidence concerning the appellant's intellectual disability constituted "fresh evidence" for the purposes of a conviction appeal
  • Whether the absence of that evidence at trial resulted in a miscarriage of justice
  • Whether there was a significant possibility that a jury, acting reasonably and with knowledge of the appellant's intellectual disability, would have acquitted him of one or more of the charges on which he was convicted

Decision

The Court held unanimously that the expert psychological and psychiatric evidence qualified as "fresh evidence." Neither the appellant's solicitor nor his counsel had been aware during the trial that he had a clinically diagnosable impairment of that severity. The evidence was therefore not available at trial, nor was it constructively available. The Court noted that great latitude is extended to an accused in such circumstances, consistent with the approach in Ratten v The Queen (1974) 131 CLR 540.

The Court found that the absence of this evidence fundamentally undermined the fairness of the trial. The Crown had placed considerable reliance on the appellant's alleged admissions and had invited the jury to apply their "own knowledge of people" and "common sense" in assessing those statements. With expert evidence that the appellant's communication skills were severely impaired and his expressive and receptive language was at the level of a four-year-old, the jury may have given those admissions little or no weight, or declined to accept them as admissions at all.

The Crown itself accepted that there was a significant possibility the fresh evidence could have affected the weight the jury placed on the admissions, and that the appellant may in consequence have been acquitted of one or more counts. Chen J concluded that the absence of this evidence deprived the trial of its fairness and that there was a significant possibility that a jury, acting reasonably, would have acquitted the appellant of more than just the two counts on which he was already found not guilty. A miscarriage of justice was accordingly established.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal allowed
  • Convictions on counts 1, 2, 4, 5, 6, 8, 9, and 10 set aside
  • New trial ordered on those counts
  • Matter listed for arraignment on 2 September 2022 in the District Court at Sydney

Key Takeaways

  • Evidence of an accused's intellectual disability can qualify as "fresh evidence" on appeal where neither the accused nor their legal representatives were aware of the clinically diagnosable condition during the trial, even if the disability existed throughout the proceedings.
  • Where a conviction rests substantially on alleged admissions made to police, undisclosed intellectual disability affecting verbal comprehension and expression can go to both the admissibility and the weight of those admissions in a way that may fundamentally alter the jury's assessment.
  • A miscarriage of justice arises not only from procedural error but from the unfairness that results when evidence of critical relevance is absent from a trial through no fault of the accused.
  • The "significant possibility" test requires the appellate court to ask whether a jury acting reasonably, had it known of the fresh evidence, would have acquitted on one or more counts. A Crown concession that this possibility existed was influential, though not determinative, in the Court's reasoning.
  • In dismissing the reliability of untested admissions made by a person with severe communication impairment, the Court of Criminal Appeal confirmed that inviting a jury to apply "common sense" to assess such statements is problematic when the jury lacks the expert context needed to evaluate them properly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61M(2), 61N, 66C, 66D
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)

Cases
- Ratten v The Queen (1974) 131 CLR 540; [1974] HCA 35
- Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Rodi v Western Australia (2018) 265 CLR 254
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Hofer v The Queen (2021) 95 ALJR 93; [2021] HCA 36
- MRW v R [2011] NSWCCA 260
- R v Bikic [2002] NSWCA 227
- Caleo v R [2021] NSWCCA 179
- Xie v R [2021] NSWCA 1