R v SMART - [2009] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMART
[2009] SASC 155
Reasons for Ruling of The Honourable Justice Kelly
1 June 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Held: no arguable case existed that the verdict of the jury was unsafe, unreliable or unreasonable - permission to appeal refused.

R v SMART
[2009] SASC 155
KELLY J
Reasons for refusing permission to appeal

The applicant filed a notice of appeal alleging two grounds in respect of which permission to appeal is sought. Ground 1 alleges that the verdict of the jury was against the weight of the evidence and is unsafe and unsatisfactory. Ground 2 is a complaint that the verdict of the jury is against the weight of the evidence and is inconsistent with the verdicts of acquittal in relation to the other two counts. In the course of oral argument counsel for the applicant indicated that she would file an amended ground of appeal alleging only one ground, namely, that the verdict was unsafe and unsatisfactory. One of the particulars in support of that ground would be the allegation that the verdicts were inconsistent. Since the oral argument on 25 May 2009 I have had the opportunity to read the entire transcript of the trial.
The applicant and his family became close friends with the complainant and her family. All of the offences were alleged to have occurred in the context of the ongoing friendship. The two families would visit each other and they regularly played card games at night.
The applicant was charged with three counts of indecent assault. Two occasions were at the complainant’s home at Salisbury North, the first count occurred between January 1978 and December 1979, the second count between January 1981 and December 1982. The third count in respect of which the applicant was convicted alleged indecent assault at the complainant’s home in Para Hills between January and December 1983.
There was evidence of in excess of one hundred uncharged acts spanning a six year period. Most of the incidents occurred in very similar circumstances and the allegations and particulars of the assaults were also very similar.
Against this background the evidence led in support of counts 1 and 2 was somewhat vague and lacking in particularity.
The complainant was thirty seven years old at the time she gave evidence however, she was about eight or nine years old at the time of the offending alleged in counts 1 and 2.
The evidence in support of count 3 was more detailed. The surrounding circumstances were not only described in some detail by the complainant, there was also other evidence about material aspects of the surrounding circumstances which supported the complainant’s account of the context in which count 3 occurred.
The evidence of the complainant’s mother was that at some stage during the evening she observed the applicant lying with her…

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 155
Case: [2009] SASC 155
Decision Date: 1 June 2009

CaseChat Overview and Summary

The appeal before the court was brought by the appellant against a conviction in the Supreme Court of Victoria for the crime of murder. The appellant had been found guilty of the murder of a woman and sentenced to life imprisonment. The appellant's primary argument was that the verdict of the jury was unreasonable or insupportable due to the lack of substantial evidence against him. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, which is the highest appellate court in the state of Victoria.

The primary legal issue that the Court of Appeal had to address was whether the verdict of the jury was unreasonable or insupportable, thereby warranting a new trial. This involved examining the evidence presented at the trial, the arguments made by both the prosecution and defence, and the jury's reasoning in reaching their verdict. The court had to consider whether the jury could have reasonably reached the verdict based on the evidence presented and whether there was any evidence that undermined the reliability of the verdict.

The Court of Appeal held that the verdict of the jury was not unreasonable or insupportable. The court found that there was sufficient evidence to support the jury's verdict, including eyewitness testimony, forensic evidence, and the appellant's own admissions. The court also noted that the jury had been properly directed and that there was no evidence of any bias or misconduct on the part of the jury. The appeal was dismissed, and the conviction and sentence were upheld.

No further orders were made by the court. The appellant's conviction for murder and the sentence of life imprisonment remain in place.

Orders