Smith v R [2022] NSWCCA 267

Smith v R [2022] NSWCCA 267

The evidence concerning the appellant's intellectual disability was fresh and credible because neither trial counsel nor the solicitor knew, or with reasonable diligence could have known, the nature and severity of the impairment, and it was not reasonable to expect the appellant to appreciate and raise its significance. The fresh evidence showed intellectual disability, severe communication impairment and receptive and expressive language skills at about a 4-year age equivalent, affecting his ability to understand and respond during the pre-text call and ERISP. Because the Crown placed considerable reliance on the alleged admissions and invited the jury to assess them by common sense...

Jurisdiction
Australia
Judgment Date
09 December 2022
Procedural Posture
Criminal Conviction Appeal / Application for Leave to Appeal Against District Court Convictions; Appeal Determined by the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; convictions on counts 1, 2, 4 to 6 and 8 to 10 set aside; new trial ordered on those counts.
Legal Topics
['conviction Appeal' 'fresh Evidence' 'miscarriage of Justice' 'intellectual Disability' 'admissions' 'pre Text Phone Call' 'police Interview' 'sexual Offences Against Children']
['criminal Law' 'criminal Procedure' 'evidence'] ['conviction Appeal' 'fresh Evidence' 'miscarriage of Justice' 'intellectual Disability' 'admissions' 'pre Text Phone Call' 'police Interview' 'sexual Offences Against Children']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Application for Leave to Appeal Against District Court Convictions; Appeal Determined by the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether evidence of the appellant's intellectual disabilities was fresh evidence not available at trial or with reasonable diligence" "Whether the absence at trial of evidence about the appellant's cognitive abilities deprived the trial of fairness and caused a miscarriage of justice" 'Whether there was a significant possibility that a jury acting reasonably would have acquitted the appellant if the fresh evidence had been before it' "Whether the appellant's intellectual disability affected the weight to be given to alleged admissions made in a pre-text call and police interview"]

Ratio Decidendi

The evidence concerning the appellant's intellectual disability was fresh and credible because neither trial counsel nor the solicitor knew, or with reasonable diligence could have known, the nature and severity of the impairment, and it was not reasonable to expect the appellant to appreciate and raise its significance. The fresh evidence showed intellectual disability, severe communication impairment and receptive and expressive language skills at about a 4-year age equivalent, affecting his ability to understand and respond during the pre-text call and ERISP. Because the Crown placed considerable reliance on the alleged admissions and invited the jury to assess them by common sense...

Court Disposition

Leave to appeal granted; appeal allowed; convictions on counts 1, 2, 4 to 6 and 8 to 10 set aside; new trial ordered on those counts.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' "Set aside the appellant's convictions on counts 1, 2, 4 to 6 and 8 to 10." 'Order that there be a new trial on counts 1, 2, 4 to 6 and 8 to 10.' 'List the matter for arraignment on 2 September 2022 in the District Court at Sydney at 9:30 am.']