(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)
27 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Appeal against conviction and sentence.
The appellant was charged with 12 counts alleging various offences against the complainant occurring over a continuous 20-hour period in November 2015. He pleaded guilty to one count of threatening life, one count of aggravated cause harm with intent to cause harm and one count of aggravated assault. He was found guilty by jury verdict of one count of aggravated kidnapping, one count of aggravated assault, two counts of aggravated causing harm with intent to cause harm, three counts of rape and one count of false imprisonment.
Held (Stanley J, Kourakis CJ and Kelly J agreeing): Appeal against conviction dismissed.
1. Although it did not refer to the presence of a court companion, the warning given by the trial judge at the commencement of the complainant’s evidence was sufficient to conform to the requirements of s 13A(12) of the Evidence Act. If the Court is wrong in that conclusion and an error of law occurred, the Court would apply the proviso.
2. The Court did not order that special arrangements be made for the taking of V's evidence. In these circumstances the application of s 13(6) and (7) of the Evidence Act, which set out the procedural requirements where a witness is accompanied by a court companion, were not invoked. Further, there is no risk that the jury impermissibly reasoned that the presence of V's wife was in some manner relevant to their assessment of V.
3. Referring the jury to s 34N of the Evidence Act where it was clearly relevant to some counts did not risk confusing the jury in relation to those counts where the question of consent was not in issue.
4. The absence of a specific direction that the written directions were subordinate to the oral directions did not cause a miscarriage of justice.
5. The mere fact a judge’s questions may suggest a view of the facts will not, without more, create a risk that the jury will be overborne by the judge’s view. The questioning of the appellant by the judge has not resulted in a miscarriage of justice.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Smart [2018] SASCFC 123
Case
[2018] SASCFC 123
Decision Date
CaseChat Overview and Summary
The case of *R v Smart* involved an appeal against conviction and sentence. The appellant, Smart, was convicted of sexual offences. The grounds of appeal raised several alleged errors by the trial judge, including failures to adequately direct the jury regarding the presence of a court companion for a witness, allowing a witness to be accompanied by his wife during evidence, providing written directions containing extraneous material, and the subordination of written directions to oral directions. Additionally, the appellant argued that the trial judge impermissibly questioned him in a manner that could have conveyed doubt about his veracity to the jury.
The legal issues before the court were whether the trial judge had erred in law by failing to provide adequate directions under section 13A of the *Evidence Act 1929* (SA) concerning a court companion, by permitting a witness to have his wife present during his evidence, and by providing written jury directions that were flawed in their content and their relationship to the oral directions. Furthermore, the court had to determine if the trial judge's questioning of the appellant during his evidence constituted an impermissible intervention that prejudiced the appellant's case.
The court dismissed the grounds of appeal relating to the trial judge's directions concerning court companions and the content and subordination of written directions. However, permission to appeal was granted on the ground concerning the trial judge's questioning of the appellant. The court found that while the trial judge had directed the witness's wife not to participate in proceedings, and she was not visible to the jury, the specific requirements of section 13 of the *Evidence Act* regarding the visibility of a support person and the warning to the jury were not fully met. Despite this, the court ultimately dismissed the appeals against conviction and sentence, indicating that no substantial miscarriage of justice had occurred.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The grounds of appeal against conviction are:Ground 1 – the learned trial judge erred in failing to adequately direct the jury pursuant to s 13A of the Evidence Act 1929 (SA), in that the direction given at the commencement of the complainant’s evidence did not refer to the presence of a court companion; Ground 3 – the learned trial judge erred by allowing the witness V to be accompanied by his wife during the course of his evidence; Ground 4(c) – the learned trial judge erred in providing written directions to the jury insofar as the written directions contain material extraneous to the jury’s deliberations; Ground 4(d) – the learned trial judge erred in providing written directions to the jury insofar as there was no direction that the written directions were subordinate to the oral directions; and Ground 5 – the learned trial judge impermissibly questioned the applicant in a manner capable of conveying to the jury a doubt as to the veracity of his evidence (permission required).Factual background The complainant originally resided in Western Australia. She had been using drugs and wanted to get away from Perth. She arrived in Adelaide in October 2015. On 15 October 2015 she went to stay with the appellant at his house in Mannum. He was a friend of a friend. They immediately began a consensual sexual relationship. Through the appellant the complainant met the co-accused X, from whom she obtained drugs. The relationship between the complainant and the appellant quickly soured. They exchanged numerous abusive texts. The complainant planned to return to Perth on 7 November 2015. The appellant dropped her at a bus stop in Murray Bridge. From there she travelled to Adelaide Airport. Later that day the complainant received threatening text messages from the appellant to the effect that upon her return to Perth she would be met by people who intended to harm her. Evidence of those text messages was admitted at trial. The complainant also received text messages from X inviting her to stay with him in Adelaide and informing her he had recently obtained drugs. These text messages were part of a plan to lure the complainant to Mannum Waterfalls carpark where she would be met by the appellant. X gave evidence the appellant instigated the plan. The appellant originally gave evidence that he agreed to meet X at the car park but did not know exactly why they were meeting. Later however he agreed X offered to deliver the complainant to him and he accepted the offer. The complainant, who had checked in at the airport, delayed her flight, left the airport, and took a bus back to Mount Barker. X picked her up in his car from the service station and drove to Mannum Waterfalls. There was coded communication between the appellant and X via UHF radio while X and the complainant were on the way to Mannum Waterfalls. In the car, X pretended to be angry with the appellant. He indicated they were going to meet the appellant at the Mannum Waterfalls car park where he was going to harm him. At Mannum Waterfalls, X asked the complainant to get out of the car so that he could take a private telephone call. He locked the car doors. The complainant saw the appellant driving toward them. He had parked his car further away to conceal his presence. The complainant tried to re-enter X’s car but the doors were locked and X would not look at her.
Evidence
Evidence Before The Court
I would dismiss ground 1.Ground 3: Allowing the witness V to be accompanied by his wife during the course of his evidence V gave evidence via audio-visual link from Queensland. Prior to giving his evidence he confirmed that his wife was in the room with him. The judge directed V that: “she is not to take any part in any of these proceedings”. V’s wife was not visible to anyone in the courtroom while her husband gave evidence. Section 13(6) and (7) of the Evidence Act provide:(6) If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the judge and jury (if any) while the witness is giving evidence and, if, in consequence of an order under this section, a party is prevented from seeing that person directly while the witness gives evidence, the court must ensure that the party is able to observe that person either— (a) by direct transmission of images of the witness together with that person while the witness is giving evidence; or (b) by the later replay of a recording of images of the witness together with that person made while the witness was giving evidence. (7) If, in a criminal trial, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence. The appellant submits that an error of law occurred by reason of the judge allowing V’s wife to accompany him while he gave evidence. No application was made pursuant to s 13 of the Evidence Act for V’s wife to accompany him while he gave evidence for the purposes of providing emotional support. The appellant submits that this does not matter. He refers to the reasoning of Keane JA (as he then was) in Michael where he said:[20]… the circumstances that the Crown Prosecutor did not seek a formal declaration that the complainant was a special witness in terms of s 21A of the Evidence Act, and that the learned trial judge did not make an explicit finding to that effect before allowing the complainant the benefit of a support person are quite beside the point. Under s 21A(2) a trial judge may act of his or her own motion to allow a special witness to have the benefit of a support person. Section 21A simply does not require that a declaration as to “special witness” status be formally sought or made. All that is necessary is that the accused should have sufficient notice of an intention to accord a witness the status of a “special witness” to enable the accused to present meaningful opposition to that course should the accused be so advised. That the provisions of s 21A may be invoked and applied without undue formality does not mean that the requirements of s 21A(8) can thereby be set at nought.[20] [2008] QCA 33 at [32], (2008) 181 A Crim R 490 at 495. I do not accept this submission. It proceeds from a false premise.
Decision
Reasons for decision
STANLEY J
I would dismiss ground 5.Conclusion I would grant permission to appeal the conviction on ground 5, but dismiss the appeals against conviction and sentence.