R v Smilginis 2025
S and 4 other men were found to have participated in the kidnapping and assault of two men after arranging to meet them to talk. The 2 men were directed to a dead-end street and dragged from the car, pepper-sprayed, assaulted with weapons, tied up, and put in the boots of cars. 1 male escaped with relatively minor injuries, but the second was seriously injured, having been repeatedly stabbed, suffered internal injuries, and had a fractured leg. The attacks were filmed on mobile phones.
2 co-defendants pleaded guilty, S and 2 other co-defendants stood trial together.
Evidence heard at court against S was evidence as to movements on the day, communications on the lead up to the offence, transfer of money, CCTV footage of S’s clothing appears in a video of the attacks, S forwarded videos of the attack to his co-defendant, refusal to provide a PIN number to his mobile phone and finally, bad character evidence of similar offences.
During the trial, S's solicitor raised concerns that he might be autistic and requested an expert assessment. After the trial evidence had been completed, a report diagnosing S with autism and suggesting this might have made him more trusting and vulnerable to exploitation was completed. The trial judge refused to adjourn the court to allow for the evidence to be presented.
S was convicted of offences of kidnapping, causing grievous bodily harm with intent, assault occasioning actual bodily harm, possessing a knife, and possessing an offensive weapon.
S appealed his convictions which centred on the judge's refusal to grant an adjournment to allow the defence to introduce expert evidence regarding S’ autism. S argued that he was denied the opportunity to adduce evidence which could have supported his innocent explanation for being present at or near the scene and for sending the videos of the offences being committed.
Held
Appeal Dismissed. Conviction Upheld.
The trial judge was entitled and correct to refuse the application to adjourn the trial to allow expert evidence on autism to be presented. The relevance of the expert evidence to the real issues in the case was at best marginal, and admitting it would have caused substantial difficulties in the continuing trial with two other defendants. Furthermore, it was satisfied that even if the judge's ruling had been wrong, the case against S was very strong, and there was no basis to suggest the jury's decision might have been different if they had been aware of the evidence from the expert witness.
Even if it was relevant to an issue in the case, it does not follow that the whole of the expert’s evidence would have been admissible as part of the defence case at trial. The exact parameters of which parts of the witness's opinion might have been admissible would have depended in part on whether there was any, and if so what, expert evidence in response.
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