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Court of Criminal Appeal 10 October 2025

Smith v R

[2025] NSWCCA 158

Homicide

Citation: [2025] NSWCCA 158
Court: Court of Criminal Appeal (NSW)
Date: 10 October 2025
Judge(s): Adamson JA (Fagan J and Coleman J agreeing)

Background

The applicant was convicted by a jury in the Supreme Court of the murder of the deceased at Jesmond on 6 January 2022. The two men shared a long history of animosity: both had been in intimate relationships with the same woman (KE), and a paternity dispute over KE's child had driven repeated mutual threats, including threats to kill.

On the day of the incident, the deceased arrived at KE's home after making numerous unsuccessful attempts to contact her by phone. He forced his way inside and confronted the applicant. A struggle occurred in the kitchen, ending when the applicant stabbed the deceased with a hunting knife, causing his death. No eyewitness saw the stabbing itself. The applicant did not give evidence at trial.

The applicant sought leave to appeal against conviction on a single ground: that the jury's guilty verdict on murder was unreasonable because the Crown had not proved beyond reasonable doubt that the applicant did not believe his conduct was necessary for self-defence.

  • Whether the jury's verdict of guilty of murder was unreasonable, in that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant did not hold a genuine belief that stabbing the deceased was necessary for self-defence (under ss 418 and 419 of the Crimes Act 1900 (NSW)).
  • Whether the Court of Criminal Appeal should direct a verdict of acquittal on the murder charge while simultaneously ordering a retrial limited to the alternative count of manslaughter.
  • Whether such an acquittal on murder would create a plea in bar of autrefois acquit (the principle that a person cannot be tried again for an offence of which they have already been acquitted), thereby preventing the retrial for manslaughter under s 163 of the Criminal Procedure Act 1986 (NSW).

Decision

Applying the test from M v The Queen (1994) 181 CLR 487, Adamson JA reviewed the whole of the evidence and concluded that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant did not believe it was necessary to stab the deceased in order to defend himself. The background of mutual threats, the deceased's aggressive entry into the premises, and the absence of any eyewitness account of the stabbing all bore on this conclusion. Because the murder verdict was unreasonable, the conviction had to be set aside.

On the question of appropriate orders, the Crown conceded that any retrial should be confined to manslaughter but opposed the entry of a formal acquittal on the murder charge. The Crown argued that an acquittal might ground a successful plea of autrefois acquit at the retrial, potentially barring the manslaughter prosecution altogether.

The Court rejected this concern. Adamson JA held that s 163 of the Criminal Procedure Act 1986 is confined to cases where an indictment has been "finally disposed of" and does not prevent the Court from directing an acquittal on murder under ss 6 and 8 of the Criminal Appeal Act 1912 while simultaneously ordering a new trial for manslaughter. The Court followed R v PL [2009] NSWCCA 256, confirming that such an acquittal would not create a plea in bar to the manslaughter retrial.

Adamson JA reasoned that because the finding of unreasonableness amounted to a conclusion that the only rational verdict on the murder charge was "not guilty", it would be unjust to deprive the applicant of the acquittal on that charge. Fagan J and Coleman J agreed.

Orders Made

  • Leave to appeal granted.
  • Conviction for murder quashed.
  • Verdict of acquittal directed on the charge of murder.
  • New trial ordered, limited to the alternative count of manslaughter.

Key Takeaways

  • Where background evidence strongly supports a genuine belief in the need for self-defence, and no eyewitness evidence contradicts that belief, a murder conviction may not withstand appellate review. The subjective limb of self-defence under s 418 of the Crimes Act (belief in necessity) remains a high bar for the Crown to disprove beyond reasonable doubt.

  • The Court of Criminal Appeal confirmed that it can direct an acquittal on a greater offence while simultaneously ordering a retrial on a lesser included offence, demonstrating that this combined relief is an available outcome where the evidence clearly excludes conviction on the greater charge but leaves a live issue on the lesser one.

  • Following R v PL, an acquittal on murder directed by the Court of Criminal Appeal does not create a plea in bar to a retrial for manslaughter ordered at the same time. Section 163 of the Criminal Procedure Act 1986 applies only to indictments that have been "finally disposed of" and does not constrain the Court's powers under the Criminal Appeal Act 1912.

  • A directed acquittal on murder limits the accused's exposure on retrial to the lesser included offence only, preventing the Crown from re-agitating the murder charge at the manslaughter retrial.

  • Absence of direct eyewitness evidence of the critical act significantly influenced the Court's reasoning. Where the prosecution relied on agreed facts and circumstantial evidence, the Court of Criminal Appeal found the circumstantial case was not capable of excluding self-defence beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 418, 419, 421
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 7, 8
- Criminal Procedure Act 1986 (NSW), s 163
- Interpretation Act 1987 (NSW), s 33

Key Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
- R v Murrell [2001] NSWCCA 179; (2001) 123 A Crim R 54
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27
- R v Barron [1914] 2 KB 570
- R v Quinn (1952) 53 SR (NSW) 21
- Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321
- R v Pedrana [2001] NSWCCA 66; (2001) 123 A Crim R 1
- The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35
- Crane v R [2024] NSWCCA 112
- O'Connell v DPP (No 4) [2025] ACTCA 41
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51