R v Smiles - [2018] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMILES
[2018] SASCFC 98
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hughes)
20 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
Appeal against conviction.
After a trial by jury the appellant was convicted of one count of indecent assault and three counts of unlawful sexual intercourse. The offences were alleged to have occurred one night in 1984. The complainant was a 15 year old high school student and the appellant was her music teacher.
The complainant gave evidence that on the night in question and after the appellant kissed her she said “Not you too?” which prompted a discussion about other teachers the complainant alleged to have sexually abused her. The appellant’s remarks included “I heard about this in the staff room and I wanted to know if it was true”. Counsel for the appellant sought leave pursuant to s34L Evidence Act 1929 to cross-examine the appellant on the conversation. The prosecution opposed the application. The learned trial Judge refused the appellant permission to cross-examine on the topic.
The appellant appealed the conviction on a number of grounds, including that the learned trial Judge erred in restricting cross-examination by the appellant regarding the conversation she had with the appellant that she had been the victim of multiple other sexual offending.
Held per Kelly J (Kourakis CJ and Hughes J agreeing), allowing the appeal against conviction:
1. That the learned trial Judge erred in not permitting counsel for the appellant to cross-examine the complainant on whether other teachers had sexually assaulted her or not.
2. The proviso cannot be applied.
3. Appeal allowed. Convictions quashed. Matter remitted to the District Court for new trial.
Criminal Law Consolidation Act 1935 Section 56; Evidence Act 1929 Sections 25 and 34L, referred to.
SKA v The Queen (2011) 243 CLR 400; Palmer v The Queen (1998) 193 CLR 1; Wakely v The Queen (1990) 93 ALR 79; Douglass v The Queen (2012) 86 ALJR 1086.; R v Liberato (1985) 159 CLR 507, considered.

R v SMILES
[2018] SASCFC 98
Court of Criminal Appeal: Kourakis CJ, Kelly J and Hughes J
KOURAKIS CJ:

I would allow the appeal for the reasons given by Kelly J.
KELLY J:
Introduction
After a trial by jury the appellant Andrew Barry Smiles was convicted of one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) and three counts of unlawful sexual intercourse contrary to s 49(3) CLCA. He now appeals the convictions on five grounds (ground…

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 Smiles

Details

AGLC: R v Smiles [2018] SASCFC 98
Case: [2018] SASCFC 98
Decision Date: 20 September 2018

CaseChat Overview and Summary

In the case of R v Smiles, the appellant, Smiles, was convicted of sexual offences against a minor. The complainant, who was 15 years old at the time of the incident in 1984, was a student of Smiles, who was her music teacher. Smiles was convicted of various acts of sexual intercourse and oral sex with the complainant. The appeal was centred around the admissibility of certain evidence, specifically, the complainant’s allegations of sexual abuse by other teachers. The primary legal issue was whether the trial judge erred in restricting the defence’s ability to cross-examine the complainant on these allegations. This involved an interpretation of section 34L of the Evidence Act 1929 (SA) and whether it permitted such cross-examination once permission had been granted for the evidence to be led.

The court found that once permission was granted under section 34L(1)(b) for the complainant to testify about the other alleged incidents of abuse, the defence should have been allowed to cross-examine her on those matters. The court held that the restriction on cross-examination amounted to a miscarriage of justice, as it denied Smiles a fair trial. The reasoning was that cross-examination on the allegations would have necessarily elicited probative material relevant to the case. Consequently, the court quashed the convictions and ordered a retrial in the District Court.

The court’s decision underscored the importance of ensuring that both parties in a criminal trial have the opportunity to fully test the evidence before the court, particularly when such evidence has been deemed substantially probative and admitted. The error in restricting the defence’s cross-examination was considered significant enough to warrant a retrial, as it potentially impacted the fairness and integrity of the original trial.

Orders

Orders of the court

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Background

Background to the litigation

Before turning to the issues which arise on appeal, it is necessary to set out some of the factual background.Factual background The complainant was born on 2 June 1969. She was 49 at the time of giving evidence. At the time of the relevant incident giving rise to the charges in December of 1984 she was a 15-year old student at a high school. The appellant was the complainant’s music teacher. The complainant was invited to play in the senior school band when she was in Year 10 in 1984. The senior school band was run by the appellant. On the night in question, both the complainant and the appellant attended at a party held for the school band at the private residence of one of the band members. There were approximately 20 people present at the party. It was common ground that the appellant gave the complainant a ride home after the party in his Kombi van. On the prosecution case the appellant drove the complainant a distance away from her home and pulled up on the side of the road in a location where there were no houses, just open paddocks. The complainant was the sole passenger in the vehicle. The complainant gave evidence of four sexual acts the subject of the counts, namely, a kiss on her lips with the appellant’s tongue in her mouth, that occurred while they were sitting on the front seat of the vehicle (count 1) followed by acts of penile/vaginal intercourse (count 2), cunnilingus (count 3) and a further act of penile/vaginal intercourse (count 4) which occurred while the complainant was in the rear of the Kombi van. The complainant gave evidence of a conversation with the appellant after the moment he kissed her in the front seat of the Kombi van to the effect that she said “Not you too?” which prompted a discussion about other teachers the complainant alleged to have sexually abused her. The appellant’s remarks included, “I heard about this in the staff room and I wanted to know if it was true”. The abuse the complainant said she had suffered was at the hands of five other people, four of whom were teachers at the high school she attended. She gave some details of the alleged abuse by those others to the appellant in the course of the discussion. The complainant said before the commission of the first act of intercourse, the appellant apologised, saying “I’m a bit small”, which the complainant understood was a reference to the size of his penis. After the act of cunnilingus (count 3) the appellant said, “You’re not really enjoying that, are you?” to which the complainant said, “Why would I be enjoying it? I’m 15, you’re my teacher, why are you doing this?” This then prompted the appellant to say, “Oh, what have I done?”, “this could ruin my marriage”, “I can’t believe I’ve done it, I’ve ruined my life”, “If my wife finds out, that’s the end of my marriage. If people find out, that’s the end of my job”, and finally “You mustn’t tell anyone.” The complainant had a particular recollection of the time that she arrived home, being 1.45 in the morning. She said she looked at the clock and remembered that particular aspect.

Evidence

Evidence Before The Court

This ground of appeal raises an important issue as to the construction of s 34L of the Evidence Act 1929 (SA):34L—Evidence in sexual cases generally (1) In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted— (a) as to the sexual reputation of the alleged victim of the offence; or (b) except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused). (2) In deciding whether permission should be granted under subsection (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought— (a) is of substantial probative value; or (b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim, and that its admission is required in the interests of justice.(3) Permission must not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim. (4) An application for permission under subsection (1)(b) must be heard and determined in the absence of the jury (if any). (5) In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence. (6) Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated. (7) In this section— evidence includes an allegation or statement made by way of an unsworn statement; sexual activities includes sexual experience or lack of sexual experience. Although ground 4 was not formally abandoned, Mrs Shaw QC conceded during argument that the evidence of the conversation which the complainant had with the appellant during the offending was relevant and properly admitted. It was therefore common ground, upon the hearing of this appeal that the evidence of the complainant on this topic was substantially probative and that permission was properly given to the prosecution to lead it. However the appellant maintained the complaint made in ground 5 that the Judge erred in restricting the ability of defence counsel to cross-examine the complainant about the allegations that she had been a victim of sexual abuse by others.[3][3] The conversation is summarised in para [10] herein. On a proper construction of s 34L, once permission is granted to a party to lead evidence which is substantially probative then the opposing party may cross-examine on it. The cross-examination on such subject matter will necessarily also elicit evidential material which is substantially probative.

Decision

Reasons for decision

In my view, the submission did not breach the rule in Palmer v The Queen[10] and I would not have allowed the appeal on that ground.[10] (1988) 193 CLR 1.Conclusion In light of the conclusion I have reached about ground 5 that the appellant has been denied a fair trial, the proviso cannot be applied. For these reasons I would quash the convictions and remit the matter for trial in the District Court.HUGHES J: I agree that the appeal should be allowed for the reasons given by Kelly J.

Ratio Decidendi

Legal Principle Established

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