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

1. 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. 

2. 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. 

3. 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. 

4. 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. 

5. Against this background the evidence led in support of counts 1 and 2 was somewhat vague and lacking in particularity.

6. 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. 

7. 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. 

8. The evidence of the complainant’s mother was that at some stage during the evening she observed the applicant lying with her daughter and his two year old son in an adjacent room of the house.  There was also evidence from the mother and one of the complainant’s siblings about a particular movie watched on the occasion when the offending in count 3 occurred.

9. In addition to the evidence given by the complainant and her family, there was also evidence of a conversation between the complainant and the applicant at a later stage.  In that conversation the complainant alleged that she had telephoned the applicant and he had asked her whether she wanted money, in response to which she said no, she wanted his head on a silver platter.  He then asked her how much money she wanted. 

10. The appellant gave evidence denying the offending.  He did not deny that a conversation had occurred between himself and the complainant.  He said the complainant had asked him ‘Have you molested any other children yet?’  He replied ‘No’ and said ‘If you want any money I haven’t got any’ and then hung up. 

11. All of this was material which the jury were entitled to take into account when considering the veracity and reliability of the complainant. 

12. Contrary to Ms Fuller’s submissions I do not consider the evidence in support of counts 1, 2 and 3 was identical.  The trial judge quite properly directed the jury as to the availability of the limited evidence capable of supporting the complainant’s account in relation to count 3. 

13. Moreover, in the course of the summing up the trial judge directed the jury that they were to consider the evidence in relation to each count separately and were entitled to find the accused guilty of one or more counts and not guilty of others. 

14. In these circumstances, I cannot accept that there is even an arguable case that the verdict of the jury on count 3 is unsafe, unreliable or unreasonable.

15. In my view, jury verdicts, particularly in cases like this involving allegations of sexual misconduct over a long period of time, are not to be regarded as inconsistent because juries faithfully follow instructions given to them by trial judges and do in fact consider each charge separately on its own merits.  In this case there is nothing at all which causes me any concern that the jury did other than that. 

16. Permission to appeal is refused.