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Court of Criminal Appeal 24 May 2023

Smith v R

[2023] NSWCCA 118

Assault & violenceHomicide

Citation: Smith v R [2023] NSWCCA 118
Court: Court of Criminal Appeal, NSW
Date: 24 May 2023
Judges: Beech-Jones CJ at CL; Button J; McNaughton J

Background

The applicant was charged with murder following a violent altercation in the early hours of 5 January 2019, in which he held a knife and the deceased suffered two stab wounds. The deceased died the following day from complications arising from one of those wounds. The applicant's account at trial was that he held the knife to defend himself and that the deceased effectively impaled himself during the altercation. A key Crown witness, who had consumed a litre of alcohol and marijuana, gave evidence that the applicant had stabbed the deceased twice in the stomach.

The trial judge left to the jury alternative verdicts of manslaughter and the statutory offence of assault occasioning death while intoxicated under s 25A(2) of the Crimes Act 1900 (NSW). The jury acquitted the applicant of murder and returned a guilty verdict on the s 25A(2) offence. That verdict was taken to constitute a notional acquittal on manslaughter. The applicant was sentenced to 10 years and 8 months imprisonment with a non-parole period of 8 years (the minimum prescribed under s 25B(1) of the Crimes Act).

The applicant sought leave to appeal his conviction, arguing that the s 25A(2) verdict was irreconcilably inconsistent with the acquittal on manslaughter, and that the trial judge should not have left the s 25A offences to the jury at all.

  • Whether the guilty verdict on assault occasioning death while intoxicated (s 25A(2)) was unreasonable because it was logically inconsistent with the acquittals on murder and manslaughter.
  • Whether, if the "logic of the acquittal" on manslaughter was applied, it necessarily required an acquittal on the s 25A(2) offence as well.
  • Whether the trial judge erred in leaving the alternative offences under s 25A(2) and s 25A(1) to the jury, given those charges may not have been "viable" on the evidence.

Decision

On inconsistent verdicts and the reasonableness of the s 25A(2) conviction, the court held that a relatively high bar must be overcome before a conviction is set aside on the basis of apparently inconsistent verdicts. Deference is afforded to juries exercising their "innate sense of fairness and justice" and taking a merciful view of the facts. The court found the verdicts were explicable: the jury appears to have accepted that the applicant deliberately stabbed the deceased, but was not satisfied beyond reasonable doubt that the act was "dangerous" in the sense required for manslaughter. That evaluation was open to the jury given the conflicting evidence about the degree of force applied.

On whether the acquittal logic required an acquittal on s 25A(2), the court rejected the applicant's contention. Carrying forward the "logic of the acquittal" on manslaughter could not lead to an acquittal on the s 25A(2) charge. If the jury was unanimously satisfied that the applicant deliberately stabbed the deceased, entering an acquittal on s 25A(2) would have been an affront to justice. The court also found this was not a case of jury compromise; had it been, the remedy would have been a retrial rather than an acquittal.

On the s 25A offences issue, the court assumed without deciding that a miscarriage of justice could in principle occur if a trial judge left a non-viable alternative charge to the jury. However, the court emphasised that assessing whether an act is "dangerous" is an evaluative question reserved exclusively for the jury. Given the contested evidence about the degree of force used, there was a viable case under s 25A(2) (and s 25A(1)) to place before the jury. The court also refused leave to raise grounds 2 and 3 of the appeal, noting no objection had been raised at trial to the s 25A charges being left to the jury.

Orders Made

  • Leave granted to raise ground 1 of the notice of appeal.
  • Leave refused to raise grounds 2 and 3 of the notice of appeal.
  • Appeal dismissed.

Key Takeaways

  • A conviction will not be set aside for inconsistent verdicts unless a relatively high threshold is met; courts afford significant deference to juries applying their "innate sense of fairness and justice" and taking a merciful approach to the facts.
  • Carrying forward the "logic of an acquittal" on one charge does not automatically require an acquittal on a lesser or alternative charge where separate evaluative considerations apply, particularly where the jury has found a deliberate act was established.
  • Whether a stabbing was "dangerous" for the purposes of manslaughter by an unlawful and dangerous act is an evaluative question solely for the jury, not the trial judge, to determine.
  • A trial judge may leave a statutory alternative charge such as s 25A(2) of the Crimes Act to the jury where there is a "viable" evidentiary basis, with viability assessed in light of the jury's exclusive function to resolve evaluative factual questions.
  • In dismissing the appeal, the court confirmed that where an apparent inconsistency in verdicts is explained by jury mercy rather than compromise, the appropriate response is not to enter an acquittal or order a retrial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 25A(1), 25A(2), 25B(1)
- Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- R v Kirkman (1987) 44 SASR 591
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- Chand v R [2011] NSWCCA 53
- R v Lykouras [2005] NSWCCA 8
- R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255
- Mifsud v R [2009] NSWCCA 313
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- R v Murray (1987) 11 NSWLR 12
- R v Rudolph [2023] NSWSC 181
- R v Songcuan (No 3) [2023] NSWSC 183