Smith v R

Background

1. The following matters were not controversial. The complainant had known Ms Whalley for about three years and considered her to be one of his friends. On 19 November 2015, he drove Ms Whalley from Forster to Taree for a job interview. They returned to Forster at about 11am, and she rode her bicycle home. The complainant went to the Forster Bowling Club and won approximately $900 playing Keno. Ms Whalley arrived at the bowling club at around 12:30-1pm, where the complainant gave her some money to play poker and buy some drinks. At about 2pm, the complainant left the club and drove home. He noticed that there was about $80 in gold coins missing from his car. He said that he assumed that Ms Whalley had taken the money.
2. The complainant had in the past supplied cannabis, including to Ms Whalley. He also knew the appellant, who was the assistant manager at the Bowling Club. The appellant and Ms Whalley had recently begun a relationship, and spent the afternoon and evening of 19 November 2015 together.
3. The appellant and Ms Whalley attended at the complainant's premises later that evening. There was a dispute as to the circumstances in which the complainant was struck by the appellant. The precise evidence as to the assault is addressed below. However, there was no dispute that the complainant was wounded by the appellant, including by using a broken golf club, in circumstances which did not amount to self-defence.
4. Neighbours heard the altercation and called the police. Ms Whalley was apprehended with the complainant's mobile phone on her person. The appellant was also arrested. Both Ms Whalley and the appellant participated in electronically recorded interviews with police in the early hours of 20 November 2015. The recordings were played to the jury and were evidence in the respective Crown cases against each of them.
5. The appellant's case was that he had attended the unit for the purpose of buying cannabis from the complainant and that he had waited outside the unit while Ms Whalley spoke to him. The appellant entered the unit to take issue with the way the complainant was speaking to Ms Whalley, at which point the complainant picked up a golf club which he kept near the front door and broke it over the appellant's head. The appellant's case was that it was in reaction to that initial assault that the appellant assaulted the complainant, and not for the purpose of robbing him.
6. The appellant relied on the complainant's evidence that he had not told Ms Whalley how much he had won at Keno, and maintained, in light of inconsistencies in his other evidence, that it was not open for the jury to accept the complainant's evidence that Ms Whalley had kicked him in the head and had said "Where's your fucking wallet, you old cunt" while the appellant was assaulting him.

Ground 1

1. The first ground of appeal was not sought to be developed in oral submissions. This ground stated: "The trial judge erred in admitting irrelevant material, being the photographs of the complainant's injuries, marked Exhibit A, contrary to ss 55 and 56 of the Evidence Act 1995." Exhibit A comprised some eight colour photographs showing the wounds suffered by the complainant following the attack. The photographs were tendered immediately after the conclusion of the complainant's evidence in chief and before his cross-examination. Objection was taken on the basis they were not relevant. In a short opening statement, counsel for the appellant had told the jury that his client had assaulted the complainant and had continued the assault and accepted that what happened went beyond that which was necessary for his defence or the defence of Ms Whalley. The submission continued: "He's not coming before you and saying that this is a self-defence case. But what he is saying and what he did say to the police on the night of his arrest is that he had nothing to do with the taking of any property that belonged to Mr O'Mara. He accepts that he assaulted him, he accepts that he went beyond self-defence in assaulting Mr O'Mara."
2. The primary judge admitted the photographs and delayed giving his reasons (because of the presence of the jury), but immediately gave a warning to the effect that just because the injuries looked serious, the jury was not to be distracted from the real issue in the trial, which was whether the Crown could prove that either or both the appellant and Ms Whalley were involved in a robbery. His Honour reiterated that warning in summing up.
3. In his Honour's reasons, the objection was treated as being based both on relevance and the exclusion pursuant to s 137 of the Evidence Act, and addressed both bases. The reasons accepted that the issues in the case had been narrowed by reason of the way in which the appellant's case had been opened, but then added that: "The simple reason for that, and the reason I believe the evidence is relevant, is that one has to consider what is actually still a fundamental issue in this particular trial. It strikes me that the credibility of Mr O'Mara (the complainant) is still a very important aspect of this trial, both in relation to his honesty, but also in relation to his reliability and credibility. In my mind, it is completely artificial for a jury to make an assessment of those features of Mr O'Mara (that is honesty, reliability and credibility) without having the real impact of the photographs to look at what was actually put upon him on that particular evening. For example, they may - and particularly now that they have had the benefit of hearing the cross-examination of Mr Neild - question his honesty in relation to the significant differences between his evidence here and his statements to the Police. However, that may simply be because of the level of violence inflicted on him, and therefore leads to some confusion in his mind about the chain of events that occurred on that evening."
4. As will be seen below, very substantial challenges were made to the evidence of the complainant as to the order in which assaults were inflicted upon him, and in particular whether he first struck the appellant over his head, breaking the golf club (as the appellant contended), or rather, the appellant broke it himself and used it to stab the complainant.
5. This ground of appeal is confined, by its terms, to relevance. The photographs could rationally affect the jury's assessment of the determination of how the assault unfolded. It would have been quite artificial to assess the significance of the inconsistencies between the complainant's statement, his evidence in chief and in cross-examination and what the appellant had said in his electronically recorded interview, without the photographic evidence of his injuries. The complainant was repeatedly cross-examined about the location of his injuries, with a view to identifying inconsistencies (for example, whether he was punched on his left or right ear, and whether he was kicked on the left or right side of his head). He accepted that he did not "have a particular recollection of exactly what happened, other than you were punched, kicked and hit with the golf club". The severity of his injuries, as apparent from the photographs, was relevant to the jury in assessing whether the complainant was giving truthful reliable evidence of his injuries, but was slightly confused because of the shock and violence of the attack.
6. This was explained by the primary judge in summing up, immediately after reminding the jury that their emotive response to the photographs had to be disregarded: "One of the ways that quite fairly you can use exhibit A is to put in true context the assessment of whether he is giving truthful and reliable evidence in this courtroom ... You might think to yourself that someone who suffered such a significant assault as this may have some legitimate confusion about the specific order of events, where precisely the first punch hit him, how many punches there were, where specifically they hit him, because that must have been quite a shock to him of what was occurring. There mere fact that he has made inconsistent statements, or is confused abut things, does it necessarily show that he is untruthful? Does it necessarily show that he was a person without credit? Or is it simply a response of someone who is attacked in their home and suffers significant injuries?"
7. The photographs were therefore relevant, not merely to a question of credibility, but to evaluating the probative value of the complainant's testimonial evidence as to primary fact in relation to how the assault came about.
8. This ground is not made out.

Ground 2

1. By his second ground, the appellant contended, picking up the language of s 6(3) of the Criminal Appeal Act, that the verdict of the jury was unreasonable or could not be supported by the evidence.
2. The basis of this ground was that the evidence did not sustain a finding, to the criminal standard, that the appellant had participated in an enterprise with Ms Whalley to rob the complainant. The submissions extended to two more peripheral matters: the complainant's evidence that he had sought to conceal his winnings from Ms Whalley, and what was arguably an admission in his electronically recorded interview. But the principal focus of the submissions was the complainant's evidence, which was concededly capable of sustaining a finding of a joint criminal enterprise to rob the complainant, that Ms Whalley had demanded his wallet while the appellant was assaulting him.

The complainant's evidence of assault coupled with robbery

1. The complainant's evidence of the critical demand by Ms Whalley was given in examination in chief as follows: "Q. Now, she's asked you for something. Can you tell us as best as you're able exactly what it was she said? A. 'I want your effing wallet. Where's you're effing wallet?' Q. 'Where's your effing wallet.' You can use the words that she used. A. "You old C." Q. No, what I'm saying I you can actually use the words. A. 'Where's your fucking wallet?' Q. And then you said another sentence. What was that? A. 'You old cunt.' Q. 'You old cunt.' You heard her say those? A. Yep. Q. You recognised her voice? A. Yep. Q. Did you answer her at all? A. No."
2. The complainant was asked whether he had heard the appellant saying anything while he was assaulting him. He answered, "No, not really."
3. The complainant's cross-examination covered many aspects of the assault in some detail. However, he was not cross-examined on his evidence reproduced above as to what Ms Whalley had said.
4. In his written submissions, the appellant pointed to a suite of inconsistencies in the complainant's evidence. In oral submissions, the appellant went so far as to say, in light of the inconsistencies, that the complainant's "first instinct is to lie". He agreed that this ground amounted to the proposition that "this witness is so unreliable that any element of this offence which depends wholly on his evidence couldn't be accepted beyond reasonable doubt."

Inconsistencies in the complainant's evidence

1. In order to determine this ground of appeal, it is necessary to summarise the inconsistencies which were the basis of this ground of appeal.
2. First, in cross-examination by counsel for the appellant, the complainant said that the reason he kept a golf club by the back door was that "I had a heap of golf clubs up me farm, I have a hit up there, and I just decided, bring one back and have a bit of a muck around the backyard". The cross-examination continued: "Q. Yes but that's not the reason you kept the golf club by the backdoor, was it? A. It was protection too. Q. Yes, and that was protection connected to selling cannabis to people out of the backdoor of your unit. That's correct? A. No I used to sell it. I give it up. I was warned, I stopped selling. Q. But connected to the fact that you had been selling cannabis from your property, that was the reason why you kept the golf club? A. No, not at all. Q. Well, why do you say you needed the golf club from protection then? A. Well, just in case. I had someone break in before. Q. So you're saying that had nothing to do with your activities? I accept you say they'd stopped by November 2015. You say keeping the golf club by the backdoor had nothing to do with your activities of selling cannabis to people in the past? A. No, not at all."
3. Later in cross-examination, the complainant was confronted with his witness statement of December 2015 in which he had said: "I used to supply cannabis to Liza and others in the area, but I stopped this because the police came and searched my house in February and I got a caution for the stuff they found there. People still come to my place looking to buy cannabis from me, so I keep my doors locked and the golf club there because of this."
4. Secondly, the complainant said in examination in chief that the appellant had walked through the door and immediately punched him on his right eye, whereas in his statement of December 2015 he said the appellant had "punched me to my left ear with his right fist". The complainant said that he was not sure which version was correct.
5. Thirdly, the complainant also said in examination in chief that after he had been punched once he picked up the golf club and held it vertically. The appellant then grabbed the golf club out of his hand. The complainant then said "I was a bit giddy, and half knocked out, and I was on the floor." Following that, he said that the appellant's "hand hit me, and started - hit me with the golf club." In cross-examination, counsel for the appellant confronted the complainant with his December 2015 statement, in which he said the appellant punched him on walking through the door and that: "This caused me to fall backwards into my unit, and I saw a golf club that I keep at the back door sitting against the wall. This golf club is a six-iron, or something like that. I grabbed the golf club while I was still on the ground, and as Stewart was coming inside my unit, and I went to take a swing at Stewart".
6. Faced with that statement, the complainant accepted that he could not say whether he was standing or sitting when he picked up the golf club. He then said that "I probably tried to hit him with it".
7. Fourthly, the complainant had said in examination in chief that after the appellant took the golf club, the appellant hit him with his hand, whereas in his December statement he said that the first thing the appellant did was hit him with the golf club in the back. The complainant said that his first version was the correct one.
8. Fifthly, in examination in chief the complainant said the appellant "stabbed me in the arm with a golf club", whereas in his December statement the complainant did not say that he had been stabbed in the arm.
9. Sixthly, in cross examination by counsel for Ms Whalley the complainant agreed that he had rung Ms Whalley eight times in the course of the afternoon to chase her up about the $80 or $90 in gold coins which he thought she had stolen earlier, whereas in answer to counsel for the appellant he denied he had called her more than once. The telephone records tendered in evidence established that there had been numerous calls from the complainant's handset to that of Ms Whalley on the afternoon and early evening of 19 November 2015.
10. Seventhly, when asked about his Keno winnings in examination in chief, the following exchange took place: "Q Was she there when you had the winnings on the Keno? A. Yeah. Q. She was present when you - A. No, no. Q. Pardon? A. I didn't let her see what I won. Q. Sorry? A. I didn't let her know what I won. Q. You didn't let her know that you'd won? HIS HONOUR Q. Are you saying that you didn't let her know you had won or how much you'd won? A. I didn't want to let her know what I had won anything out - Q. That you had won anything or how much you'd won? A. Yeah I won, yeah. Q. Sorry so did you let her know you'd won or did - A. A little bit, yeah, yeah. Q. But you didn't give her the amount of money you'd won? A. No CROWN PROSECUTOR Q. So she knew that you'd had some winnings, just not how much. A. Mm."
11. In cross-examination, he was asked "You didn't tell Liza when you had wins on the Keno" and said "No".
12. In addition to these inconsistencies, the appellant pointed to the fact that the complainant had initially told police that the appellant and Ms Whalley had taken $80-100 which was on the kitchen bench, even though he could not have known that money had been taken because he could not have checked his house. The appellant noted that it was not any part of the Crown case at trial that he and Ms Whalley had taken that money, and that the fact the complainant had made those claims without any basis to do so demonstrated his unreliability.
13. Towards the end of the appellant's counsel's cross-examination, there was the following exchange: "Q. Now, do you agree that there's, without counting them, perhaps five or six pieces of evidence that you've given today that are really quite different from the evidence that you've given in your statement? A. Yeah, well that's a while back. Q. And can I suggest to you that that's because what you're saying to the Court about the way in which the assault started is not in fact correct? A. No."
14. Counsel thereafter put the defence case to the complainant.

The way the inconsistencies were dealt with at trial

1. It was plain that the complainant, who was the principal witness in the Crown case, had given inconsistent evidence. The Crown acknowledged as much in closing address: "I anticipate what [the defence] will do is they will focus on the inconsistencies in [the complainant's] evidence. That might be something that is of concern to you. That is a matter for you. But there is no denying it and I'm not here to suggest to you anything otherwise. There were inconsistencies, but keep in mind what I said earlier. We are talking about a man who was 67 years old, he was in his own home, this is late at night, and he was attacked by a much younger, taller and stronger, fitter male. He was the victim of a savage beating and he received some serious injuries. Would you expect someone in those circumstances to remember the precise details? Is it significant to you that he can't remember precisely which blow was inflicted before which other blow? Would you expect someone in those circumstances to say to you, 'I remember quite clearly, he struck me here, then he struck me there, then he struck me there'? Is that something you might expect? In my submission you wouldn't, and in my submission he was doing the best he could."
2. As anticipated, defence counsel highlighted the inconsistencies in their addresses to the jury. Counsel for the appellant submitted that there were ten reasons why the jury would not be persuaded beyond reasonable doubt that the offence had been committed. The first and most substantial of these were the inconsistencies in the complainant's evidence. After summarising a number of the inconsistencies, he said: "If these were all isolated differences between the story he told police in December 2015 and the evidence he gave you today, you might say anyone can make a mistake. But the mistakes mount up." Counsel for the appellant then summarised more of the inconsistencies, and said: "You might wonder when you look at all of those difficulties, all of those problems with Mr O'Mara's evidence to you versus what he told the police back in December 2015, whether you could accept beyond a reasonable doubt his account of what happened when Mr Smith and Ms Whalley came to his door. … [Mr O'Mara] was, in my submission, a witness who was unwilling to concede things that were against interest, and his interest of course was painting himself as a poor old man who was set upon for no reason other than to be robbed by Mr Smith and Ms Whalley, as opposed to what Mr Smith says and what Ms Whalley says."
3. Counsel for Ms Whalley also focussed on the reliability of the complainant: "The evidence that is in dispute, the evidence that has been the most contested, is that given by Colin O'Mara. He is the crucial witness in this case, because apart from Ms Whalley and Mr Smith he's the only other person who can tell you what happened in that unit. … What I am going to suggest to you, members of the jury, and you have already heard this from Mr Neild, is that Mr O'Mara's evidence is so compromised that you cannot rely on it."
4. The primary judge directed the jury accordingly: "[The complainant] is a very important witness in this case. His evidence being important, and he along essentially with the two accused is the only person who was there, and as such he is the only person giving evidence in the Crown case of what occurred during this incident, is an important witness. His evidence, therefore, being important, you must scrutinise it with great care. I am not saying you cannot act on it. I am not offering any opinion about [the complainant] at all. … But as a matter of law, before you could find or act on the evidence with great care, and be cautious of the fact that it is his evidence, and essentially in many ways, in many aspects, his evidence alone that seeks to establish many of the aspects of the Crown case that are crucially relied on by the Crown."

Consideration

1. The jury's attention was drawn to the inconsistencies in the complainant's evidence. This was a trial where there were few issues, and the most prominent was whether the complainant's evidence was sufficiently reliable as to conclude that the appellant and Ms Whalley were parties to a joint criminal enterprise involving robbing the complainant.
2. Whether or not the complainant's evidence that he heard Ms Whalley demanding where his wallet was while he was being attacked by the appellant should be accepted was quintessentially a question for the jury who saw and heard that evidence being given. Tending in favour of its acceptance were the considerations that it was not challenged in cross-examination, nor was it the subject of any evidence to the contrary. On one view, it was adduced in a way which suggested an actual recollection of the offensive language used. Tending against its acceptance were the numerous other inaccuracies and inconsistencies in the complainant's evidence.
3. The importance of the role played by the jury was emphasised by the High Court in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 53 at [65]: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial … with those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (citations omitted.)
4. Although an appellate court is to give due weight to the advantage of the jury, it is required to make its own independent assessment of the evidence: SKA v The Queen (2011) 243 CLR 400; [2011] HCA 400 at [14]. As was said in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84]-[85], "If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. ... [F]or a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice."
5. In this case, the doubt sought to be raised by the appellant was based on the complainant's credibility. True it is that most of the inconsistencies in cross-examination relied upon, both at trial and in this Court, were not directly concerned with the element of robbery. But that does not obviate the need to bear them in mind in assessing the complainant's evidence. What is more, the sixth inconsistency (about how many times the complainant had rung Ms Whalley) and the seventh inconsistency (about whether the complainant had told Ms Whalley about his Keno winnings) directly bore on the element of robbery. The former tended to support the defence case that Ms Whalley and the appellant had gone to the complainant's unit to clear up a misunderstanding about the missing $80, and things had got out of hand when the complainant swung a golf club at the appellant, and the inaccuracy of the complainant's recollection was confirmed by the telephone records in evidence. The latter went directly to a motive to rob.
6. The jury had a very substantial advantage over this Court in determining whether they should accept the critical evidence which went to an element of the offence. The reliability of the complainant's evidence, and the inconsistencies in it, were thoroughly exposed in cross-examination, and were referred to by all three counsel who appeared at trial.
7. Considering the evidence as a whole, and bearing in mind the limitations of the transcript and the advantages of the jury, I conclude that the jury was entitled to consider that the inconsistencies identified by counsel for both accused did not bear upon the probative value of other evidence given by him which directly bore upon the element of robbery. Indeed, it is quite understandable that the complainant may have been genuinely confused about, or have no clear recollection of, the order of the various assaults made upon him, but could remember Ms Whalley's words demanding his wallet as he was being attacked. Despite the detailed challenge to other parts of his evidence, his evidence as to the words he said she had used was not challenged in cross-examination.
8. It was also entirely open to the jury to conclude, to the criminal standard, that the appellant must also have heard Ms Whalley's demand for the complainant's wallet while continuing his assault upon him. That is sufficient to satisfy this element of the offence.
9. The appellant also raised the complainant's statements to police that Ms Whalley had taken $80-100 on the kitchen bench when he was in no position to know they had been taken and in fact no money was found on either accused. Those statements were raised as further evidence of the complainant's unreliability. As much may be acknowledged. However, once again, although relevant to an assessment of the probative weight to be given to the complainant's evidence, the statements did not prevent the jury from being satisfied that his unchallenged evidence that Ms Whalley demanded his wallet from him while the appellant was assaulting him was what in fact occurred.
10. The appellant and the Crown exchanged written submissions on various other matters, including what was said to have been an admission by the appellant in his interview, and the evidence of other witnesses of the complainant winning at Keno at giving money to Ms Whalley. But during oral submissions counsel for the appellant accepted that the appeal turned on establishing that the evidence of the complainant could not be relied upon. That concession was rightly made. It follows that it is not necessary to address those other matters.
11. Taking an independent assessment of the evidence, but acknowledging the significant advantages enjoyed by the jury, I am not left in any doubt as to the reasonableness of the verdict. The complainant's unchallenged evidence that Ms Whalley demanded his wallet while the appellant was assaulting him was able to be accepted by the jury, notwithstanding the other inconsistencies and inaccuracies in his evidence.
12. In those circumstances, ground 2 must fail.

Orders

1. I propose that, although there should be a grant of leave, the appeal be dismissed.
2. ADAMSON J: I agree with Leeming JA's reasons and with the orders his Honour proposes. I wish to add a few remarks regarding ground 2 (the unreasonable verdict ground). This ground is, in substance, a complaint that the appellant was convicted on the word of the complainant, who was said to be unreliable because of inconsistencies in his evidence. It is well established that, before a jury's verdict can be set aside as unreasonable, regard must be had to the jury's advantage of hearing and seeing the witnesses called at trial. In undertaking an assessment of the reasonableness of the jury's verdict (namely, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of an accused) this Court should approach the question on the basis that the jurors, collectively, are the judges of the facts lest trial by an appeal court become a substitute for trial by jury: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
3. Having read all of the evidence, I am satisfied that on the whole of the evidence it was open to the jury to be satisfied of the appellant's guilt on all counts beyond reasonable doubt. I am not persuaded that the complainant's evidence, either taken by itself or in the context of the whole Crown case, leads to a doubt about the appellant's guilt, much less one that the jury might not have been able to resolve, having regard to the jury's advantage of seeing and hearing the witnesses, including the complainant.

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