Smith v R [2013] NSWCCA 182

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v R [2013] NSWCCA 182 Hearing dates: 24th April 2013 Decision date: 02 August 2013 Before: Latham J at 1 Button J at 59 Barr AJ at 60 Decision: Appeal against conviction allowed Conviction quashed New trial ordered Catchwords: CRIMINAL LAW - appeal against conviction and sentence - robbery with wounding - whether trial judge erred in admitting evidence - finding of material error in admission of evidence - finding that real probative value of evidence was outweighed by danger of unfair prejudice - appeal against conviction allowed - conviction quashed and new trial ordered Legislation Cited: Crimes Act 1900 Category: Principal judgment Parties: Adam Benjamin Smith - (Appellant) Regina - (Crown Respondent) Representation: Counsel I Nash - (Appellant) N Adams SC / J Davidson - (Crown Respondent) Solicitors Legal Aid NSW - (Appellant) Solicitor for Public Prosecutions (Crown Respondent) File Number(s): 2010/31865 Decision under appeal Date of Decision: 2011-12-02 00:00:00 Before: Knox SC DCJ File Number(s): 2011/3708

Judgment 1LATHAM J : The appeal against the conviction and sentence of Adam Benjamin Smith with respect to a charge of robbery with wounding was heard by this Court on 24 April 2013. The Court determined that the appeal against conviction ought be allowed, the conviction quashed and a new trial ordered. Those orders were pronounced on that day. These are the reasons for that decision. 2The appellant was tried before Knox SC DCJ in November 2011 on a charge pursuant to s 96 of the Crimes Act 1900, alleging that he robbed and wounded a taxi driver on 1 October 1998. The appellant was not arrested and charged until 5 January 2011. The Crown case against him was circumstantial, but for alleged admissions made by the appellant in the presence of a neighbour, Ms Bohnert, and during a telephone conversation on 15 December 2010, and the evidence of an alleged co-offender (Williams). 3The grounds of appeal take issue with the admission into evidence of one of the alleged admissions (Ground 1 : the telephone intercept of 15 December 2010), the directions given by the trial judge in relation to that alleged admission (Ground 2) and the directions relating to the evidence of Williams (Ground 3).