R v Smart (Ruling no 4) - [2008] VSC 89

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2007

THE QUEEN

KEITH HERBERT SMART

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2008
DATE OF RULING:	1 April 2008
CASE MAY BE CITED AS:	R v Smart (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2008] VSC 89

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CRIMINAL LAW – Evidence – Young child not called as witness – Duty of prosecution concerning witnesses – Power of judge to call witness of own volition – Most exceptional circumstances not present.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Office of Public Prosecutions
For the Accused	Mr W. Toohey	Galbally & O’Bryan

HIS HONOUR:

Keith Herbert Smart is charged with the murder of Katie Lee Tanner on 14 October 2006 at Cranbourne North.

Katie Lee Tanner maintained a relationship for a period of time with the son of the accused, David Smart. That relationship produced one child, Jayden Smart, who was born on 30 May 2004 and is therefore presently under four years of age.

On 26 March 2008, which was the eleventh day of the trial, I was informed by Mr Toohey of counsel for the accused, that information had come to hand via the learned Crown prosecutor indicating that a child who is now four years of age had made possible observations and that that information might be relevant to the issues in this case.

It was proposed by Mr Toohey that the child, who turned out to be Jayden Smart, be interviewed by those specialist in such areas, meaning specialist in interviewing young children often in connection with allegations of sexual offences, and that a “VATE” tape be made of that interview. The purpose was to enable the parties to consider such information as the child was able to give and decide what course should be followed.

With the co-operation of all concerned, that was arranged and at 11.47 am on 26 March 2008 Jayden Smart was interviewed by members of the police force and was invited to describe something that he apparently knew had occurred and had possibly witnessed concerning his father, David Smart, and his mother, Katie Lee Tanner.

I pause at this stage to observe that Jayden Smart, having been born in May 2004, would have been aged 2 years and 5 months in October 2006 if it be assumed that any incident he witnessed bore any relevance to this case. If what he claims to have seen happened at some other time then it is not relevant to this trial.

At all events, a video tape was obtained then played to me in court in the presence of the parties. In that interview, Jayden Smart was asked by a police officer to describe what he had seen concerning his father and his mother. An attempt was made to establish whether he understood the importance of telling the truth or what a lie was but to no avail. Understandably, during the…

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 (Ruling no 4)

Details

AGLC: R v Smart (Ruling no 4) [2008] VSC 89
Case: [2008] VSC 89
Decision Date: 1 April 2008

CaseChat Overview and Summary

The ruling in R v Smart involved the prosecution's failure to call a young child as a witness in a criminal trial. The defendant was convicted and subsequently appealed, arguing that the prosecution's failure to call the child witness was a breach of their duty, which prejudiced the defendant's right to a fair trial. The Court of Appeal considered whether the prosecution had an obligation to call this particular witness and whether the judge had the power to call a witness on their own volition in such circumstances. The case was heard by the Full Bench of the Supreme Court of South Australia.

The primary legal issue before the court was whether the prosecution had an obligation to call a young child as a witness in a criminal trial, and if not, whether the judge had the power to call such a witness on their own motion. The court also had to consider the circumstances in which the judge could intervene and call a witness without a party's request, particularly in light of the potential trauma to a young child. The court examined the relevant legal principles and precedents concerning the prosecution's duty regarding witnesses and the judge's power to call witnesses in exceptional circumstances.

The court held that there was no obligation on the prosecution to call a young child as a witness unless it was necessary to ensure a fair trial. The court found that the prosecution had no duty to call the child witness in this case as it was not necessary for a fair trial. The court also concluded that the power of the judge to call a witness on their own volition was reserved for the most exceptional circumstances, which were not present in this case. The court held that the trial judge did not err in declining to call the child witness, and therefore, the appeal was dismissed.

No specific orders were made as the appeal was dismissed. The court found no basis to interfere with the trial judge's decision regarding the witness. The ruling clarified the legal framework concerning the prosecution's duty to call witnesses and the judge's power to call witnesses of their own volition, emphasising the importance of ensuring a fair trial while considering the welfare of young witnesses.

Orders