Smith v R [2023] NSWCCA 118

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v R [2023] NSWCCA 118 Hearing dates: 17 February 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Before: Beech-Jones CJ at CL at [1] Button J at [79] McNaughton J at [80] Decision: (1) Grant the applicant leave to raise ground 1 of the notice of appeal; (2) Refuse the applicant leave to raise grounds 2 and 3 of the notice of appeal; (3) Appeal dismissed. Catchwords: CRIMINAL LAW ─ appeal ─ appeal against conviction ─ murder charge with alternative verdicts of manslaughter and assault occasioning death while intoxicated ─ applicant stabbed deceased in violent altercation and deceased suffered two wounds ─ jury note requested trial judge clarify difference between manslaughter and assault occasioning death while intoxicated ─ acquittal on murder and notional acquittal on manslaughter ─ verdict of guilty of assault occasioning death ─ complaint of inconsistent verdicts ─ whether logic of acquittal of murder and manslaughter necessarily gives rise to an acquittal of assault occasioning death ─ logic of acquittal could not lead to acquittal of assault occasioning death ─ whether guilty verdict was unreasonable on the basis that it was founded upon the applicant's act not being dangerous ─ verdict explicable by reference to scope for debate about the degree of force applied in stabbing the deceased, evaluative nature of assessing whether applicant's act was "dangerous" and juries applying their "innate sense of fairness and justice" ─ no compromise by jury ─ whether trial judge erred in leaving to the jury alternative offences under s 25A ─ "viable" case under s 25A having regard to jury's function and scope for debate about degree of force applied ─ appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW) Cases Cited: Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246 Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85 Chand v R [2011] NSWCCA 53 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Mifsud v R [2009] NSWCCA 313 R v Kirkman (1987) 44 SASR 591 R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255 R v Lykouras [2005] NSWCCA 8 R v Murray (1987) 11 NSWLR 12 R v Rudolph [2023] NSWSC 181 R v Songcuan (No 3) [2023] NSWSC 183 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 Category: Principal judgment Parties: Justin Shawn Smith (Applicant) Crown (Respondent) Representation: Counsel: Ms M Avenell SC (Applicant) Mr G Newton SC (Crown)