R v Smith [2000] NSWCCA 468

New South Wales Court of Criminal Appeal

CITATION : R v Smith [2000] NSWCCA 468 revised - 4/12/2000 FILE NUMBER(S) : CCA 60677/99 HEARING DATE(S) : 30 October 2000 JUDGMENT DATE : 20 November 2000

PARTIES : Regina Robert Colin Alan Smith JUDGMENT OF : Giles JA at 1; Wood CJ at CL at 2; James J at 120

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98 21 1328 LOWER COURT JUDICIAL Bellear DCJ OFFICER :

COUNSEL : P. Berman S.P. Hodges SOLICITORS : S.C. Russell Savio Solicitors CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - sexual assault - aggravated sexual assault - verdict unreasonable of being supported having regard to the evidence - jury better placed to evaluate reliability of the witnesses than court - competing versions - identification evidence - warning for use identification evidence - question of motive - motive to lie Criminal Appeal Act 1912 (NSW) s6(1) LEGISLATION CITED : Crimes Act 1900 (NSW) s61J(1)(2)(a) Criminal Appeal Rules 1952 r4 Evidence Act (NSW) 1995 s115, 135, 137, 116, 165 DECISION : (1) Appeal dismissed; (2) Conviction and sentence below confirmed

IN THE COURT OF CRIMINAL APPEAL

No. 60677/99

GILES JA WOOD CJ at CL BM JAMES J

Monday 20 November 2000 Regina v Robert SMITH

The appellant was convicted of aggravated sexual intercourse without consent. He was sentenced to imprisonment for a minimum term of 2 ½ years with an additional term of 2 ½ years.

He appealed against the conviction on the grounds that (a) the verdict was unreasonable and could not be supported having regard to the evidence; (b) the trial judged erred in failing to direct the jury as to the way in which they should deal with the competing versions of the complainant and the appellant; (c) the trial judge erred in admitting the photographic identification evidence; (d) the trial judge should have given a warning in regard to the identification evidence; (e) the Crown Prosector inappropriately posed the question of motive in the closing address and (f) the trial judge failed to give appropriate directions in regard to the question of motive posed, therefore causing a miscarriage of justice.