R v Smart - [2009] SASC 335

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMART
[2009] SASC 335
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice White)
5 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION
Appellant acquitted of two counts of indecent assault and convicted of one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 - appealed conviction - whether guilty verdict unsafe and unsatisfactory - whether verdict was against the weight of the evidence - whether it was open to jury on whole of evidence to find appellant guilty beyond reasonable doubt - whether verdicts inconsistent - whether conviction on one count can be logically explained against acquittals on other two counts - whether miscarriage of justice - whether trial judge erred in directing jury that there was limited evidence supporting complainant's evidence.
Held: It was open to the jury on whole of evidence to find appellant guilty beyond reasonable doubt - verdict not against the weight of the evidence - conviction on one count can be logically explained against acquittals on other two counts - verdicts not inconsistent - guilty verdict not unsafe and unsatisfactory - trial judge did not err in directing jury - no miscarriage of justice - permission to appeal granted by majority - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
M v R (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; M v The Queen (1994) 181 CLR 487; R v Smart [2009] SASC 155; R v Stone (unreported, CCA Eng, 13 December 1954; R v Klamo (2008) 18 VR 644, applied.
MFA v The Queen (2002) 213 CLR 606; MacKenzie v The Queen (1996) 190 CLR 348; Libke v The Queen (2007) 230 CLR 559; R v Gbojueh [2009] SASC 104; (2009) 103 SASR 545, discussed.

R v SMART
[2009] SASC 335
Court of Criminal Appeal: Gray, Anderson and White JJ
GRAY J.

This is a renewed application for permission to appeal against conviction.
On 27 February 2009, Allan Leslie Smart, the defendant and applicant, was convicted by jury verdict, following a trial in the District Court, of one count of indecent assault in respect of a complainant, KC. On 8 April 2009, the defendant was sentenced to a suspended term of imprisonment of two years. A non-parole period of 14 months was fixed.
The defendant was originally charged on Information with three counts of indecent assault against the complainant, KC,…

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.

Continue reading R v Smart

Details

AGLC: R v Smart [2009] SASC 335
Case: [2009] SASC 335
Decision Date: 5 November 2009

CaseChat Overview and Summary

In the case of R v Smart, the appellant, Allan Lesley Smart, was convicted by a jury of one count of indecent assault and acquitted of two other counts of indecent assault. The appeal before the court challenged the conviction on the basis that it was against the weight of the evidence, inconsistent with the acquittals on the other counts, and that the trial judge misdirected the jury about the evidence. The appeal was heard in the Supreme Court of South Australia, with the Court considering both the grounds for granting leave to appeal and the merits of the appeal itself.

The legal issues addressed by the court included whether the conviction was against the weight of the evidence, whether the convictions on the three counts were inconsistent, and whether the trial judge had misdirected the jury in their understanding of the evidence. The court was required to determine whether the verdict on count 3 was logical and consistent with the acquittals on counts 1 and 2, and whether the trial judge's directions to the jury were appropriate. The court also considered whether there was a miscarriage of justice that warranted the overturning of the conviction.

The court found that it was open to the jury on the whole of the evidence to find the appellant guilty beyond reasonable doubt on count 3. The verdict was not against the weight of the evidence, and the convictions on the three counts were not inconsistent. The court held that the verdicts were logically explainable, with the guilty verdict on count 3 being consistent with the acquittals on counts 1 and 2. The court further determined that the trial judge did not err in directing the jury, and there was no miscarriage of justice. Permission to appeal was granted by a majority of the court, but the appeal was ultimately dismissed.

The court's reasoning and outcome reflect a careful consideration of the evidence, the jury's role in determining guilt, and the legal standards for reviewing a jury's verdict. The court's decision was based on the principles that the jury is best placed to assess the credibility of witnesses and the weight of the evidence, and that the court should only intervene where there is a clear miscarriage of justice or a significant legal error.

Orders

Orders of the court

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Background

Background to the litigation

Originally there were only two grounds of appeal but a third was added during the hearing of the appeal. The first is that the verdict of the jury was unsafe and unsatisfactory in that it was against the weight of evidence. The second is that the verdict of the jury was unsafe and unsatisfactory because the verdict on count 3 was inconsistent with the verdicts of acquittal reached by the jury on the other two counts. The third ground reads:The learned trial Judge erred in directing the jury that there was limited independent evidence supporting the complainant’s account on count 3.Particulars(a)The evidence to which the learned trial Judge referred was only supportive of the complainant’s account of the circumstances surrounding count 3 and not the offence itself.(b)The jury should have been directed that this evidence was not capable of supporting the complainant’s account that the applicant had indecently assaulted her but was evidence confirming the applicant’s opportunity to commit the offence.Background facts The complainant was born on 8 October 1970. She moved with her family to an address at Salisbury North when she was approximately 6 years of age. She had an older brother, a younger sister and a younger brother. The complainant and her family became friendly with the appellant and his family sometime after moving into the home at Salisbury North. The appellant and his family lived next door. Both the complainant’s parents and the appellant and his wife socialised with each other, and in particular played cards at either the complainant’s parents’ home or the appellant’s home. The complainant gave evidence of a course of conduct in which she alleges that the appellant came into her bedroom and indecently interfered with her when the adults were playing cards. Later the appellant and his family moved to an address at Para Hills. The first two counts and a series of uncharged acts are alleged to have taken place at Salisbury North, whereas the allegations relating to count 3 are alleged to have taken place at Para Hills.Count 1 The complainant gave evidence which put count 1 as occurring prior to Christmas in approximately 1978. At that time she was approximately 8 or 9 years old. She said an incident occurred in the bedroom which she shared with her younger sister who was 6 or 7 at the time. She said that the appellant walked into the bedroom and woke her up. The complainant described how the appellant touched her first on her chest and then by moving to her vagina and inserting his fingers. She said that there was no light on in the bedroom at the time but there was a hallway light which was shining. She described the features of her attacker which she said were those of the appellant. She gave a general description of his size and appearance. That was the extent of her evidence on this count. Her sister did not give any evidence in support of the complainant. There were inconsistencies related to the timing of the incident from the complainant’s family mainly relating to the age of the appellant’s son at the time. In her final address Ms Fuller, for the appellant, stressed the inconsistencies related to the timing of count 1.The uncharged acts

Evidence

Evidence Before The Court

Additionally, the jury were required to contemplate the points of distinction in the evidence against the background of the Judge’s directions on three important topics: that it was for the jury to determine whether they accepted all or part of any witnesses’ evidence; that the jury were to consider each count separately and that a conclusion with respect to one count did not mandate the same or a different result with respect to any other count; and the connected direction that the jury must not substitute satisfaction of general sexual misconduct by the defendant for specific verdicts on each of the counts.Unsafe and Unsatisfactory – The Whole of the Evidence The principles that inform the exercise of review to be undertaken by an appellate court where it is suggested that a verdict is not available having regard to the whole of the evidence, are well established. Those principles derive from the common law’s approach to the overarching question of whether, by virtue of particular features of a trial, a verdict of guilty is unsafe and unsatisfactory.[7] The general test finds expression in M,[8] and is set out by Hayne J in Libke[9] in the following way:… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. [original emphasis][7] MFA v The Queen (2002) 213 CLR 606.[8] M v The Queen (1994) 181 CLR 487.[9] Libke v The Queen (2007) 230 CLR 559 at 596-597. There are two matters to be resolved by an appellate court when invited to interfere with a jury’s verdict on the ground that it is unsafe and unsatisfactory. The question to be asked is whether, upon the whole of the evidence led at the trial, it was open to the jury to be satisfied beyond reasonable doubt of the defendant’s guilt. The resolution of this question requires the court to give deference not only to the jury’s exclusive imperative to determine guilt or innocence, but also to the advantage that a jury has had by virtue of their exposure to the witnesses. If a doubt exists about whether it was open to the jury to be satisfied of the defendant’s guilt, the court is to assess whether that doubt can be discarded by reference to the jury’s advantage in seeing the witnesses and watching the evidence unfold.[10][10] R v Klamo (2008) 18 VR 644 at 653-654 (Maxwell P). On the hearing of the renewed application, the defendant supported this ground of appeal by what was said to be the inherent implausibility of the complainant’s account, together with material inconsistencies said to arise between the evidence of the complainant and of other witnesses. It was further contended that when properly analysed, the suggested supporting evidence from the complainant’s mother was objectively improbable.

Decision

Reasons for decision

GRAY J ANDERSON J WHITE J

In regards to the additional ground of appeal arising during submissions, counsel for the defence contended that the evidence led in respect of count three was only capable of confirming an opportunity to offend, rather than corroboration of the complainant’s account that the indecent assault occurred. Counsel submitted that the jury should have been directed accordingly. I consider there is no substance to this contention. The evidence led in respect of count three was capable of providing corroboration of the complainant’s account. In addition, the Judge appropriately directed the jury in relation to the weight of that evidence. Conclusion These reasons expand on the reasons provided by the Judge who initially refused permission to appeal. However, in essence the reasons are the same. I would refuse permission to appeal. Introduction Allan Lesley Smart was charged on information with three counts of indecent assault. Indecent assault is a crime contrary to the provisions of s 56 of the Criminal Law Consolidation Act 1935. The information alleges the following particulars:1.Between 1 January 1978 and 31 December 1979 at Salisbury North Mr Smart indecently assaulted the complainant who at that time was under the age of 10 years.2.Between 1 January 1981 and 31 December 1982 at Salisbury North Mr Smart assaulted the complainant who was then a person under the age of 13 years.3.Between 1 January 1983 and 31 December 1983 at Para Hills Mr Smart assaulted the complainant who was then a person under the age of 14 years. Each count involved the same complainant. In this appeal Mr Smart (the appellant) complains of his conviction under count 3. He was acquitted by a jury of counts 1 and 2. An earlier information alleged three counts of indecent assault by the appellant against the complainant and two counts against her younger sister. At a proposed joint hearing involving both the complainant and her sister there was an application for severance which was refused. After the commencement of the trial it became necessary for the judge to declare a mis-trial. Following the mistrial the counts were severed and the counts relating to the complainant were heard by another judge. The jury was unable to reach a verdict and the appellant was discharged. There then followed a separate trial in relation to the complainant’s sister, which again was declared a mis-trial after it had commenced. The subsequent trial of the counts relating to the complainant’s sister resulted in the appellant being acquitted on all counts. This appeal follows from a separate trial before another judge of the District Court sitting with a jury, which, by majority, acquitted the appellant of counts 1 and 2 but convicted him of count 3.Grounds of appeal This matter comes before the Court as an application for permission to appeal. It was decided that the Court would hear full argument on the merits and decide both the question of permission to appeal and, if permission were to be granted, the result of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, ANDERSON J, WHITE J

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