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Court of Criminal Appeal 11 July 2025

Smith v R

[2025] NSWCCA 104

Assault & violenceTheft & property
CRIME APPEAL UNREASONABLE VERDICT WHERE TWO COMPLAINANTS EXAMINED AT LENGTH

Citation: Smith v R [2025] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 11 July 2025
Judges: Bell CJ (primary reasons); Harrison CJ at CL (agreeing); Hamill J (agreeing)

Background

The applicant, Trent Steven Smith, was convicted after an 18-day jury trial of two counts of specially aggravated kidnapping under s 86(3) of the Crimes Act 1900 (NSW). Both counts involved detaining a person in company and occasioning actual bodily harm. The offences occurred at a housing commission unit in Waterloo between February and March 2021, where the applicant had taken up residence following his release from custody.

The two complainants presented an unusual factual dynamic. The first complainant, Ms Paull, gave evidence that she had been detained and repeatedly assaulted by the applicant, his co-accused uncle, and the second complainant, Ms Finlay. Ms Finlay, the unit's regular tenant, was herself the subject of Count 2: she gave evidence that the applicant and the co-accused had detained and assaulted her, causing significant facial injuries including a fractured cheekbone. Ms Finlay had been arrested at the scene but was never charged.

Police attended the unit on 8 March 2021 following a neighbour's report of a woman crying out for help over a period of approximately ten minutes. The applicant was convicted on both kidnapping counts and also on a separate count of dishonestly obtaining a financial advantage by using Ms Paull's bank card without her consent. He was sentenced to an aggregate term of eight years' imprisonment with a five-year non-parole period. He sought leave to appeal out of time on the sole ground that the verdicts were unreasonable and could not be supported by the evidence.

  • Whether the jury's verdicts on both counts were unreasonable or unsupported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and subsequent High Court authority.
  • Whether alleged inconsistencies between the evidence of the two complainants, particularly regarding an incident known as the "porridge incident", were so significant that no properly instructed jury could have resolved them in favour of conviction.
  • Whether the fact that Ms Finlay was herself a participant in the detention and assault of Ms Paull was incapable of rational reconciliation with her also being a victim of detention and assault by the applicant.

Decision

The Court of Criminal Appeal granted leave to appeal out of time but unanimously dismissed the appeal. Bell CJ, with Harrison CJ at CL and Hamill J agreeing, concluded that both verdicts were reasonably open to the jury on the whole of the evidence.

On Count 1, the Court found that Ms Finlay's evidence did not contradict Ms Paull's account but in fact corroborated it. The Court emphasised the significant forensic advantage held by the jury, which had the benefit of observing both complainants under lengthy and detailed cross-examination over multiple days. The inconsistencies relied upon by the applicant were not of a kind that placed the verdicts beyond rational explanation.

On Count 2, the Court rejected the argument that Ms Finlay's role as a participant in Ms Paull's detention and assault was logically incompatible with her also being a victim. The Court noted that the jury had received appropriate directions about Ms Finlay's reliability, and that corroborating evidence strongly supported her account: this included contemporaneous accounts to police and hospital staff, photographic evidence of her injuries, medical evidence of a fractured cheekbone and other trauma, the observations of the attending constable, and evidence from Ms Finlay's parole officer regarding a sudden and unexplained change in her demeanour.

The Court found the inconsistencies between Ms Paull's and Ms Finlay's accounts of the "porridge incident" were overstated. The difference in their recollections, particularly as to whether Ms Paull struck Ms Finlay during that incident, was capable of resolution by the jury and did not generate reasonable doubt in the minds of the appellate judges reviewing the whole of the evidence.

Orders Made

  • Leave to appeal out of time granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that appellate courts must give significant weight to the jury's forensic advantage in assessing credibility where witnesses have been subjected to lengthy cross-examination over multiple days.
  • A complainant's participation in offending against another person does not, as a matter of logic, preclude the possibility that the same complainant was also a victim of detention and assault during the same period or course of events.
  • Alleged inconsistencies between co-complainants' accounts will not render a verdict unreasonable where those inconsistencies are capable of resolution by a properly instructed jury and do not leave the reviewing court with a reasonable doubt as to the accused's guilt.
  • Corroborating evidence across multiple independent sources, including contemporaneous statements, medical records, photographic injury evidence, and witness observations, can provide strong support for a complainant's account even where some aspects of that account are challenged or inconsistent with another witness's version.
  • The Court of Criminal Appeal confirmed the applicable test: the court must independently examine the evidence and determine whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt, consistently with the principles in M v The Queen, Pell v The Queen, and Dansie v The Queen.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 86(3), 192E(1)(b)
- Evidence Act 1995 (NSW) s 165
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- R v ZT [2025] HCA 9; (2025) 88 ALJR 656
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- R v Murray (1987) 11 NSWLR 12
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Gould v R [2023] NSWCCA 103
- Hanna v R [2023] NSWCCA 182
- RW v R [2023] NSWCCA 2
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- Kim v R [2020] NSWCCA 288
- RA v R [2020] NSWCCA 356
- Gray v R [2020] NSWCCA 240
- Holt v R [2021] NSWCCA 140
- Nguyen v R [2017] NSWCCA 145