Citation: R v Smith [2000] NSWCCA 468
Court: New South Wales Court of Criminal Appeal
Date: 20 November 2000
Judge(s): Giles JA; Wood CJ at CL; James J
Background
The appellant was convicted in the District Court of aggravated sexual intercourse without consent under s 61J(1)(2)(a) of the Crimes Act 1900 (NSW). The aggravating circumstance was that he inflicted actual bodily harm on the complainant at the time of the offence. He was sentenced to a minimum term of two and a half years imprisonment, with an additional term of two and a half years.
The Crown case rested primarily on the complainant's account. She described meeting the appellant, whom she already knew, at a nightclub in Mount Druitt in the early hours of 2 May 1998, and then being attacked following a subsequent conversation on a street corner. The appellant disputed the complainant's account.
The appellant did not challenge his sentence. His appeal was confined entirely to the conviction.
Legal Issues
The Court of Criminal Appeal was asked to resolve whether:
- The verdict was unreasonable and unsupported by the evidence
- The trial judge failed to properly direct the jury on how to approach the competing versions of the complainant and the appellant
- The trial judge erred in admitting photographic identification evidence
- The trial judge should have given a warning to the jury regarding the identification evidence
- The Crown Prosecutor improperly posed a motive-to-lie question in closing address, and whether the trial judge's failure to address that adequately caused a miscarriage of justice
Decision
Unreasonable verdict: The court held that the jury was better placed than the Court of Criminal Appeal to assess witness reliability and determine whether the Crown had proved its case beyond reasonable doubt. The events described were not so inherently improbable as to require rejection. The jury's diligence was evident from their request to replay witness evidence during deliberations.
Competing versions: Where a jury is invited to choose between the complainant's and the accused's accounts, there is a risk the jurors may treat their task as a preference exercise rather than applying the beyond reasonable doubt standard. However, the trial judge in this case gave detailed directions on the Crown's burden of proof, how to assess reliability, and the need to scrutinise the complainant's evidence. Those directions sufficiently addressed the risk, distinguishing this case from authorities where the competing-versions issue had led to error.
Identification evidence: The complainant already knew the appellant before the incident, meaning identification was not genuinely in dispute. The photographic identification exercise was little more than a formality in those circumstances, and nothing in the procedure suggested unfairness or a risk of miscarriage that would warrant exclusion under ss 135 or 137 of the Evidence Act 1995 (NSW). The fact that the identification was conducted during the evidentiary rather than investigative phase was not, by itself, sufficient grounds for exclusion.
Motive to lie: The court reiterated that inviting a jury to ask why a complainant would fabricate evidence is both imprudent and inadvisable, because it risks reversing the onus of proof. Where motive evidence is raised by the defence, a direction is normally required to the effect that rejecting a suggested motive does not mean the complainant is necessarily telling the truth. In this case, the trial judge did not give that additional direction. However, no miscarriage of justice resulted: defence counsel made no complaint at trial, the motive issue was not given prominence, and the jury was not directly encouraged to speculate on whether the complainant had a reason to lie.
Orders Made
- Appeal dismissed
- Conviction and sentence below confirmed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate courts will defer to jury findings on witness credibility where the evidence is not inherently improbable and the jury is better placed to evaluate reliability.
- A trial judge's directions on competing versions of events will be adequate where they clearly explain the beyond reasonable doubt standard, address how reliability is to be assessed, and do not invite jurors to simply choose the more believable witness.
- Where a complainant already knew the accused and identification is not genuinely in dispute, a formal identification warning under ss 116 and 165 of the Evidence Act 1995 (NSW) is not ordinarily required.
- Raising a "motive to lie" question with a jury carries the risk of impermissibly reversing the onus of proof; where the defence raises motive evidence, a direction that rejecting the suggested motive does not establish the complainant's truthfulness should normally follow.
- No miscarriage of justice arises from the omission of a motive direction where the issue was not given prominence at trial, defence counsel raised no objection, and the jury was not encouraged to speculate about the complainant's reasons for giving evidence.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Crimes Act 1900 (NSW) s 61J(1)(2)(a)
- Criminal Appeal Rules 1952 r 4
- Evidence Act 1995 (NSW) ss 115, 116, 135, 137, 165
Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Gipp v The Queen (1998) 72 ALJR 101
- Fleming (1998) 158 ALR 379
- Giam (1999) 104 A Crim R 426
- Beserick (1993) 30 NSWLR 510
- Edwards, NSWCCA, 27 September 1995
- Liberato (1984) 159 CLR 507
- Alexander (1981) 145 CLR 395
- Davies, NSWCCA, 8 December 1994
- F (1995) A Crim R 502
- E (1996) 39 NSWLR 450
- Uhrig, NSWCCA, 24 October 1996
- Graham, NSWCCA, 2 September 1997
- Jovanovic (1997) 42 NSWLR 520
- Palmer (1998) 72 ALJR 254