Mark John Smith v The Queen

[2013] ACTCA 27

MARK JOHN SMITH v THE QUEEN
[2013] ACTCA 27 (7 May 2013)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 46 - 2012
No. SCC 168 of 2011

Judges:        Higgins CJ, Burns and Gilmour JJ
Court of Appeal of the Australian Capital Territory
Date:           7 May 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 46 - 2012
  )          No. SCC 168 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MARK JOHN SMITH

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Burns and Gilmour JJ
Date:  7 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 46 - 2012
  )          No. SCC 168 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MARK JOHN SMITH

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Burns and Gilmour JJ
Date:  7 May 2013
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. We are able to agree on a disposition of this matter.  Firstly, this is an appeal against a conviction.  The appeal is now based on only one ground. That is, effectively, that the decision by his Honour, the trial judge, to permit evidence to be given of other occasions which were not the subject of any charge led to the trial being unfair and that, therefore, that evidence should not have been admitted or not admitted, at least, to the extent it was, and therefore the conviction should be set aside and the matter remitted for re-trial. 

1. One goes first to the application which was made to lead that evidence which was made by Mr Lundy.  It was put on the basis, as Mr Kellaway noted, that the Crown intended to lead relationship or context evidence.  In fact, Mr Lundy put it expressly on the basis of context evidence, and he put it on this basis when he was asked, “Is it, Mr Crown, that the complainant is going to say to the effect it was ‘hundreds of times but I can’t remember exactly when’?”  Mr Lundy: “Well, not hundreds of times in essence, your Honour, and your Honour would be aware that cases like this, she would allege that it happened on occasions other than those specified in the indictment, and she would say that there were other occasions that things did happen, and that would be the extent of the evidence that I would be asking her.”  And his Honour did not have a problem with that.  Mr Kellaway said, “Well, with respect, the Crown would need to precisely identify the relevance of those uncharged acts.”  His Honour, I think, rather succinctly identified that himself saying, “So, what her evidence is that these acts were not isolated incidents within a five year period.”  And Mr Kellaway said, “the line becomes blurred into tendency propensity type evidence where the jury would have difficulty rationalising about it like lawyers would.”  His Honour rejected that and allowed Mr Lundy to visit that topic.

1. The evidence which was given at page 68 of the appeal book is that she was, first of all, asked simply to answer a question yes or no, namely, “In addition to those incidents you’ve just told us about, there were other times that – and before you answer, I just want you to answer yes or no.  Were there other times that Mr Smith did things to you?”  Her answer was “Yes.”  In context that obviously meant things of a sexual nature.  There having been no objection, Mr Lundy was emboldened to go further and said, “And how often?  Are you able to estimate how often he did these things to you?”  Her answer was “It was on a weekly basis.”  Mr Lundy then asked “Other than those incidents you’ve described today, you’re unable to recall specific details of those incidences, is that correct?”  A good question I note.  No doubt put for good reason, although he tried to limit, I think, the extent to which the complainant would give details of this. She said, “Pardon?”  and Mr Lundy asked:

“You’ve given us details about specific incidents today? ‑ Yes.

And you’ve said there are other occasions he did things.  You’re unable to recall specifics about those other occasions, is that correct?”

1. Well, rather than respond as Mr Lundy no doubt thought she might do, she said, “I can remember a few other details from me being forced to give him head jobs in the room, him shoving my head down on his penis for, I can remember time of up to half an hour.”  Finally he got her stop by saying, “But you’re unable to recall when that was, is that correct?”  The answer was, “Yes.”  She first told police about allegations in 1999 which is of relevance only in the absence of an immediate complaint, of course, and that was the extent of the evidence given in-chief.

1. However, Mr Kellaway adverted to it at 103 of the appeal book and he asked the complainant:

The last part of your evidence that I wish you to recall when you were answering the questions of the prosecutor was this, that you said that – you were asked about whether you recalled other times and you said that you recall being forced to give head jobs and that you had Mark Smith’s head in your ‘penis’ [sic] for about half an hour at a time and that this was on a regular basis.  Is that the effect of your evidence?‑‑‑It is.

Regular’…you said it was on a weekly basis, is that right?‑‑‑Yes.

You said to the police…

1. This went to the police statement which plainly would have been in the possession of each counsel –

…it was at least three times a week.

1. That does not seem to make it any better, I have to say, and the answer was,

I've said at least three times I was abused not three times about the head jobs.  Head jobs was just a singular thing that I was talking about.” 

1. And she confirmed that her accusation was that on a weekly basis she was forced to give head jobs for up to half an hour at a time, “It would depend…” she said “… and he would go to my mother … so there was never a singular time.”

1. Of course, that did have the effect of drawing some attention to the evidence which had been given at page 68, but it was clearly a question asked by Mr Kellaway for what he considered to be good forensic reasons.

1. The next reference to it was in the Crown’s summing up which was at 150 where Mr Lundy was addressing the jury.  Despite the fact that the transcript records the jury as being absent, I am sure that Mr Lundy would not have been addressing an empty jury box.  He said to the jury:

Now, you heard some evidence of other things that might have happened but weren’t charged.  His Honour will tell you how you may use that evidence and it is for a limited purpose only.

Emphasising that point

But I don’t propose to steal his Honour’s thunder, he will tell you.  But those other things that were mentioned that weren’t on the indictment are not matters for which you need to consider in this case.  It is only those charges on the indictment that you need to consider in determining whether Mr Smith is guilty or innocent.

1. It might be a little bit confusing whether the jury is being invited entirely to disregard it or to have regard to it for only a limited purpose, but Mr Lundy adds that limited purpose.

1. In any event, his Honour adverted to the matter, as was anticipated, at 174.  Again, the jury was not absent; I do not imagine his Honour was summing up to an empty jury box, but that is what the transcript says.  It is common ground that the direction which his Honour gave was unexceptionable, telling the jury that the evidence of uncharged acts was simply to give context or background to the charged acts and referred to them as uncharged acts of a sexual kind.  And the Crown is entitled, his Honour said, to represent evidence of background or context to show the existence of a relationship between the complainant and the accused and referred to it, again, as being background or context.  As I say, there is no exception made to that summing up.  And in that regard too, it is notable that there was no objection to the proposal to give evidence or lead that evidence from the complainant, per se.

1. In that context the only objection that can be made is that, notwithstanding all of that, the prejudicial effect of that evidence so far outweighed the legitimate probative value that it should be regarded as leading to an unfair result or making the trial unfair.  With respect, I cannot see that that is so in the context, particularly in the context of the cross-examination which was directed to that particular piece of evidence.  I do not think that there is any substance, therefore, in the objection that the leading of that evidence prejudiced the fair trial of the appellant and I would not uphold that ground.  I note further that the ground of appeal which was suggested that the trial was unsafe, or the result was unsafe or unsatisfactory, has effectively been abandoned but for that point. Therefore I would dismiss the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     27 June 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 46 - 2012
  )          No. SCC 168 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MARK JOHN SMITH

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Burns and Gilmour JJ
Date:  7 May 2013
Place:  Canberra

REASONS FOR JUDGMENT

BURNS J:

1. I agree with the orders proposed by his Honour the Chief Justice, and with the reasons that he has given.

   I certify that the preceding paragraph numbered fourteen (14) is a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:      27 June 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 46 - 2012
  )          No. SCC 168 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MARK JOHN SMITH

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Burns and Gilmour JJ
Date:  7 May 2013
Place:  Canberra

REASONS FOR JUDGMENT

GILMOUR J:

1. I would also dismiss the appeal for the reasons given by the Chief Justice.

   I certify that the preceding paragraph numbered fifteen (15) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gilmour.

   Associate:

   Date:    27 June 2013

Counsel for the Appellant:  Mr J Lawton
Solicitor for the Appellant:  Darryl Perkins Solicitor
Counsel for the Respondent:  Mr J Lundy
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  7 May 2013
Date of judgment:  7 May 2013