Smith v R

[2025] NSWCCA 104

Court of Criminal Appeal (NSW)|2025-07-11|Before: Bell CJ at [1], Harrison CJ at CL at [89], Hamill J at [94].

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2025-07-11

Before

Bell CJ at [1], Harrison CJ at CL at [89], Hamill J at [94].

Catchwords

CRIME – Appeal – unreasonable verdict – applicant
convicted on two counts of detaining and occasioning actual bodily
harm –
where two complainants – when second complainant was herself involved in

Source

Original judgment source is linked above.

Catchwords

CRIME – Appeal – unreasonable verdict – applicantconvicted on two counts of detaining and occasioning actual bodilyharm –where two complainants – when second complainant was herself involved indetention and assault of first complainant– whether any inconsistencybetween evidence of complainants incapable of resolution by a properlyinstructed jury –jury’s advantage when both complainantscross-examined at length – whether any material inconsistency betweenevidenceof complainants – whether verdicts in respect of both complaintswere open to the jury.

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Smith v R [2025] NSWCCA 104

Hearing dates: 28 May 2025

Date of orders: 11 July 2025

Decision date: 11 July 2025

Before: Bell CJ at [1];
Harrison CJ at CL at [89];
Hamill J at [94].

Ms Finlay’s claims to having herself been detained and assaulted were supported by her statements to the police in the early morning of 9 March 2021 (see [25]-[27] above) and to hospital staff, as recorded in Dr Murphy’s note: see at [23] above. It was not suggested that the evidence that she gave both in chief and under cross examination was inconsistent with her statements made immediately after her arrest and when in hospital. Her injuries, as described by Dr Murphy, were entirely consistent with her having been struck forcefully across the face. As to her detention, there was force in the submission made on appeal that the fact that Ms Finlay, with the obvious serious injuries to her face at the time police came to the unit on 8 March, had not sought treatment gave rise to two possibilities, that she did not want treatment or that she was not in a position to seek it because of her detention. The latter accorded with common sense.
Ms Finlay’s accounts of having been both bashed and detained by the Applicant and Mr Bishay were also supported by the evidence of Ms Paull.
There were two important aspects to Ms Paull’s support which were likely to have impressed the jury and rendered a conviction on Count 2 plainly open to it beyond the mere fact of consistency or corroboration.
The first was that, by reason of the circumstances of Ms Paull leaving the unit, the subsequent arrest of Ms Finlay (likely to have been unbeknown to Ms Paull because she had been taken to hospital), and the detailed recorded evidence of both Ms Paull and Ms Finlay taken in the early hours of 9 March 2021, there was no scope for collusion between the two of them in terms of those near contemporaneous interviews.
Second, Ms Paull had (uncontroversially) herself been attacked by Ms Finlay and, for this reason, Ms Paull might well have been thought less likely to give evidence that Ms Finlay, too, had been the victim of detention and assaults by the Applicant and Mr Bishay. But she gave such evidence, in unequivocal terms. That evidence included her statement made at St Vincent’s Hospital that “probably say last week, she [Ms Finlay] actually got slapped hard too” and that she [Ms Paull] had tried to escape once before but that Ms Finlay “got beaten for that”: see [22] above.
Under cross examination, Ms Paull said the following:

Assuming that the jury turned to consider Count 2 after it had reached its verdict in relation to Count 1 (an assumption that necessarily is incapable of verification given that the verdicts were delivered at the same time), the jury’s verdict in respect of Count 2 was also capable of being supported by cross admissible tendency evidence arising from its verdict on Count 1. The trial judge ruled that such tendency evidence was admissible and directed the jury in a manner that attracted no criticism from either defence counsel at the trial. In oral submissions, Mr Carroll contended that the tendency direction was used “in the extremely basic sense, he has got a tendency to assault and detain Ms Paull without any clarification of when or what you can use that to convict in relation to Ms Finlay”. He submitted that the tendency direction “is meaningless, unhelpful”. This was not advanced as a ground of appeal and, had it been, leave to raise any challenge would have been required under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): see, for example, Gould v R [2023] NSWCCA 103 at [62], [82]-[90].
To the extent that the tendency direction was relied upon by the Crown, the Court must proceed on the basis that it was part of the matrix of circumstances that the jury had to consider and, in the absence of challenge, the tendency evidence identified was entitled to be relied upon by the jury. A review in accordance with M and Pell should proceed on the same basis.
Mr Carroll’s two principal arguments in respect of Count 2 revolved around, first, the circumstance that Ms Finlay was both an assailant (on both Ms Paull’s evidence and indeed on her own admission) and a complainant, and secondly, that there was such a stark inconsistency between Ms Paull’s evidence and Ms Finlay’s evidence in respect of the porridge incident that, on the assumption that the jury must have accepted Ms Paull as a witness of truth and a reliable historian, the jury should have had a sufficiently serious doubt as to Ms Finlay’s reliability generally so as to render their verdict on Count 2 unreasonable.
Dealing with the first of these matters, it was open to the jury to accept Ms Finlay’s explanation that her participation in the assaults on Ms Paull were motivated by her fear of Mr Bishay. Her evidence in this regard included what she said in the early hours of 9 March in the immediate aftermath of being arrested and taken to hospital, namely that “I was told that if I didn't, I would be hit more”: see at [25] above.
Even if Ms Finlay participated freely in the assaults on Ms Paull, it would not inexorably follow that, in the period of time to which the charge related, she was not also herself detained and assaulted. The evidence set out at [68]-[72] above, coupled with her serious injuries as detailed in Dr Murphy’s notes, supported the jury’s conclusion. I accept the Crown’s submission (and it was open to the jury to accept) that:

For the foregoing reasons, I would grant leave to appeal but dismiss the appeal.
HARRISON CJ at CL**:** I have had the considerable advantage of reading in draft the judgment of the Chief Justice. I agree with his Honour’s analysis and with the orders he proposes.
The record of the trial is extensive. As his Honour has observed, both Ms Paull and Ms Finlay gave evidence and were cross examined at some length.
The facts and circumstances that give rise to the charges are undoubtedly unusual, if not on one view quite bizarre. It was for this reason, among others, that counsel for the applicant understandably emphasized the details of what took place in the apartment in aid of his contention that the complainants’ evidence was not only contradictory but also implausible and inherently unlikely.
However, I am not satisfied that the evidence of either complainant lacks credibility for reasons associated with its arguably extravagant content or for reasons that are not explained by the manner in which it was given. I am also not satisfied that the complainants’ evidence contains discrepancies, or displays inadequacies, that ought to have led the jury to doubt it or that the evidence is somehow tainted or otherwise lacking in probative force: see, for example, RW v R [2023] NSWCCA 2 at [161] – [164].
In my opinion, upon an independent assessment of the whole of the evidence in the trial, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
HAMILL J: I have had the benefit of reading the judgment of Bell CJ circulated in draft. I agree with the Chief Justice that the appeal should be dismissed. I can add little to his Honour’s analysis of the principles and issues that arise in this appeal and agree essentially with his Honour’s reasons for concluding that the single ground of appeal cannot be upheld. It is unnecessary to repeat the analysis of the critical parts of the evidence which can be found in the leading judgment.
On an independent review of the whole of the record of the trial, including observing and listening to the electronic exhibits, I am satisfied that it was open to the jury to reach a verdict of guilty in relation to each of the offences of which the applicant was convicted. I use the phrase “open to the jury” in the sense explained by the High Court in cases such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and those referred to by Bell CJ at [32]-[37]. For example, in SKA v T**he Queen French CJ, Gummow and Kiefel JJ said at [20]:

The second count, alleging the specially aggravated kidnapping of Annika Finlay, is more problematic, largely because, as Mr Carroll submitted, parts of her evidence could not be reconciled with the evidence of Ms Paull and because she – that is, Ms Finlay – was almost certainly complicit in the detention of Ms Paull. However, being the victim of count two and, potentially, part of the criminal enterprise giving rise to count 1, were not mutually exclusive.
It must also be said, as Mr Carroll submitted, that there were some peculiarities in the way in which the prosecution case was presented at trial. As Bell CJ has emphasised, no complaint about the conduct of the Prosecutor was raised at the trial and there was no ground of appeal specifically directed to the issue of the Prosecutor’s conduct. However, as counsel submitted, some of these matters highlighted the issues in the prosecution case on count 2 upon which the applicant relies in submitting that the verdict on that count was unreasonable and unable to be supported having regard to the evidence. In particular, it is necessary to weigh the “competing evidence” relating to occasions during the period covered by the indictment which established that Ms Finlay seemed to be free to leave her flat and undertake other tasks: cf SKA v The Queen at [21], [23]-[24].
The applicant’s submissions in relation to count 2 focused on the inconsistencies between the evidence of the two complainants and on the Prosecutor’s “ecliptical address” by which the prosecution’s case on count 2 was narrowed in point of time to the day of the so called “porridge incident”, the evidence of which is dealt with in some detail by the Chief Justice (for example, at [26] and [77]-[84]).
Some of the inconsistencies in the versions given by the two complainants was stark. These were highlighted in the cross-examination undertaken at the trial, in counsels’ addresses and, in summary form, in the summing up. I agree with Bell CJ that these matters were able to be resolved, in a logical and rational way, by the jury which saw and heard the evidence and which received conventional directions about fact finding and instructions that it could accept some but not all of the evidence given by particular witnesses. The assessment of the evidence at the trial was to be made in the clear knowledge that the two complainants, at the time of the relevant events, were taking drugs or withdrawing from drugs, and that the four participants in the events giving rise to the charges were part of a section of the community whose lifestyle was likely to impact on the quality of their evidence.
I have considered the criticisms of Ms Finlay’s honesty and reliability made at the trial and on appeal. The detention took place at premises which were leased in her name and, like the applicant, she stood at the front door and told the police that there was nobody else inside. That this was blatant lie was established graphically when Ms Paull called for help from inside and then ran from the premises. Ms Finlay’s account of being the second victim of an unlawful detention only emerged later, albeit a relatively short time later, and after she had been arrested for the kidnapping of Ms Paull.
Based on the evidence adduced at the trial, I am satisfied that Ms Finlay was involved in the detention of Ms Paull. In particular, she was a party to forcing Ms Paull to sign the “contract” which is a distressing document to consider and betrayed a callousness and indifference to Ms Paull’s plight. Ms Finlay’s complicity was such that her evidence must be approached with caution and is of a kind that the law recognises may be unreliable: Evidence Act 1995 (NSW), s 165(1)(d). I have taken into account that she had a motive to lie, to minimise her own involvement in the events and to implicate others – in particular the applicant – in the detention of Ms Paull. She also had inside knowledge of the events that put her in a good position to tailor her account around what she knew to be the true facts. However, as the Chief Justice shows, there was no opportunity for the two complainants to collude before providing their first accounts to the investigating police. In any event, if there was any attempt at collusion, the inconsistencies in their accounts show they did not do a very good job of it.
The warning provided to the jury under s 165(1)(d) of the Evidence Act is set out by Bell CJ at [63]. It was a firm direction, and no complaint was made about it at trial. The issue of Ms Finlay’s criminal involvement in the events giving rise to the charges was clearly before the jury which observed Ms Finlay give evidence over 5 days. Even so, in undertaking an independent review of the evidence, this Court should also act on the basis of a putative warning that Ms Finlay’s testimony fell into a category of evidence which the law has long recognised may be unreliable. I have done this and am satisfied that she did, in fact, seek to minimise her own involvement and may have exaggerated the role of the applicant. However, like the jury, this Court undertaking its independent review of the evidence may reject parts of a witness’s evidence and accept other parts. I will return to evidence that had a capacity to support Ms Finlay’s version but her facial injuries alone provided powerful evidence that she was subject to a vicious assault at some time in the hours or days before she was arrested.
Another issue upon which reliance was placed on appeal related to the way in which the Prosecutor at trial appeared to shift his case as to the dates of Ms Finlay’s detention in order to suit evidence that suggested she was either out in the community, clearly free to go about her affairs, or involved in the assaults and detention of Ms Paull.
The indictment alleged Ms Finlay was detained between 26 February 2021 and 9 March 2021.
However, there was evidence in the form of hospital records which proved that Ms Finlay was at the methadone clinic at Royal Prince Alfred Hospital (RPA) at 2.13pm on 26 February 2021. There were also CCTV images of Ms Finlay at RPA on 3 March 2021 and the records showed she received a dose of methadone at 3.28pm on that date. Ms Finlay said she travelled to and from the methadone clinic by herself and agreed that she was not “detained” during those trips.
Ms Paull gave evidence that on one occasion before the porridge incident (estimated to be a few days before the applicant’s arrest on 8 March 2021) Ms Finlay went to the shops to buy a cream for Ms Paull to cover the marks on her face. There was body worn video footage (Ex W) in which a neighbour, Nicholas Logarzo, told police that he saw Ms Finlay going to the shops with either the applicant or Mr Bishay. He said that he asked if she was okay and she told him that everything was fine. Under cross-examination based on telephone messages, Ms Finlay conceded that on either 3 March 2021 or a Friday during the charged period she left the flat to purchase heroin from a person called Taylor.
That body of evidence established that Ms Finlay was not detained during the whole of the period covered by the indictment. The Prosecutor addressed the jury by narrowing the timeframe during which the offence was committed. He argued that there was a particular point in time at which all the elements of the offence could be proved beyond reasonable doubt. That period was identified as commencing when Ms Finlay returned from the methadone clinic on 3 March 2021. The Prosecutor suggested that Ms Finlay’s liberty may have been “interfered with before then”, but submitted that the moment in time at which the “eclipse” of all elements occurred – as it was put in the Prosecutor’s address – was during the porridge incident. Mr Carroll criticised the Prosecutor for this shift in the case but no complaint was made at trial and no ground asserted that it occasioned a miscarriage of justice.
There is force in the argument that these periods of liberty raised questions about whether Ms Finlay was detained or whether she was free to come and go as she pleased. Even so, it was open to the jury as a matter of law to find that during the charged period Ms Finlay was detained against her will and the aggravating circumstances alleged in the indictment – that is, that the offence was committed in company and that actual bodily harm was occasioned – coincided in point of time with that detention. It was not incumbent on the prosecution to establish that the offence was ongoing throughout the whole of the time period covered by the indictment.
However, I considered this evidence in considering whether the prosecution case as a whole established count 2 beyond reasonable doubt.
I have also considered the support that Ms Finlay’s testimony received in other evidence adduced at the trial. Her version of events received support in (i) the evidence of Ms Paull that Ms Finlay was at times physically assaulted and detained by the applicant and Mr Bishay, (ii) Ms Finlay’s relatively contemporaneous accounts to police and hospital staff, (iii) the evidence of Constable Hyde, who observed “significant bruising around her eyes” when she was first confronted at the front door, (iv) the photographs of Ms Finlay’s injuries (Ex K), (v) the statement of Dr Murphy documenting Ms Finlay’s injuries (Ex X), (vi) the evidence of Associate Professor Raftos who was of the opinion that the bruising was “consistent with her being struck in the face by a blunt object”, and (vii) the evidence of Ms Finlay’s parole officer, Siobhan McGrath, regarding Ms Finlay’s sudden and unexplained change in demeanour.
The photographs of Ms Finlay’s facial injuries were particularly graphic and provided strong support that she was assaulted with some force. While those injuries did not, directly or of themselves, establish a detention, they are consistent with that allegation and available as part of the circumstantial case supporting the direct evidence of Ms Finlay and, in parts, Ms Paull that Ms Finlay was detained against her will.
Considering the evidence as a whole, I am not left with a reasonable doubt as to the applicant’s guilt in relation to count 2 or with the feelings of “anxiety or discomfort” of which Sully J spoke in M v T**he Queen: see the judgment of Mason CJ, Deane, Dawson and Toohey JJ at 495. I do not find Ms Finlay’s account to be implausible or consider that the inconsistencies between her evidence and that of Ms Paull mean that the jury ought to have entertained a reasonable doubt.
Furthermore, as Bell CJ has demonstrated, this was a case where the jury had a very significant advantage over this Court in making evaluations of the credibility and reliability of the witnesses. Like Ms Paull, Ms Finlay was in the witness box for many days and subject to careful and thorough cross-examination. The jury had the benefit of collective and private discussions and were constrained by the requirement of unanimity.
For those additional reasons, I agree with the Chief Justice that neither verdict was unreasonable and unable to be supported having regard to the evidence.

Smith v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

JUDGMENT

Introduction

Background

Applicable principles

Applicant’s contentions

Challenge to conviction in respect of Count 1

Challenge to conviction in respect of Count 2

Conclusion

Count 1

Count 2

Parties

Legislation Cited (2)

Cases Cited (12)

Cited By (2)