R v Smith - [2008] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2008] SASC 135
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice David)
23 May 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES
Application for permission to appeal against conviction and appeal against conviction - appellant convicted after a trial before a District Court Judge and a jury of three counts of unlawful sexual intercourse with a person under 17 years of age and two counts of unlawful sexual intercourse - first ground of appeal whether Judge's directions on the burden of proof adequate - second ground of appeal whether Judge failed to direct the jury adequately in relation to certain factual submissions put by the prosecutor.
Held: On first ground Judge's directions on the burden of proof adequate - application for permission to appeal not granted on that ground - if that ground raised a question of law alone and permission to appeal not required, appeal dismissed on that ground - on second ground jury should have been reminded to consider evidence put by prosecutor dispassionately and the Judge's failure to deal with the matter meant that the defence case was not put adequately to the jury - unacceptable risk of miscarriage of justice - appeal against conviction allowed - convictions set aside - retrial ordered on the Information.

R v SMITH
[2008] SASC 135
Court of Criminal Appeal: Doyle CJ, Anderson and David JJ

DOYLE CJ. Mr Smith was convicted, after a trial before a District Court Judge and jury, on three counts of unlawful sexual intercourse with a person under 17 years of age, and on two counts of unlawful sexual intercourse. The complainant in each case was J, the daughter of Ms CF.
The appeal is against the convictions.
The appeal raises two issues. First, whether the Judge failed to direct the jury adequately in relation to certain factual submissions put by the prosecutor to the jury in her closing address. The complaint is that the submissions called for correction by the Judge, or at least for some cautionary remarks, and that the Judge did not do either of these things. Permission to appeal has been granted on this ground. The second issue is whether the Judge’s directions on the burden of proof are adequate. A single Judge refused permission to appeal on this ground. Mr Smith has renewed his application for permission to appeal.
Facts
I can state the facts quite briefly, because an understanding of the issues on appeal does not require much by way of background.
The complainant J was 27 years old when she gave evidence. The alleged offences occurred between July 1989 and October 1998. J was aged between eight years and 17 years at the time of the alleged offences.
J’s…

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 Smith

Details

AGLC: R v Smith [2008] SASC 135
Case: [2008] SASC 135
Decision Date: 23 May 2008

CaseChat Overview and Summary

In the case of R v Smith, the appellant was convicted by a jury in the District Court of five counts of unlawful sexual intercourse with a person under 17 years of age. The appellant, Mr Smith, appealed against his conviction on two grounds. The first ground was that the trial Judge’s directions on the burden of proof were inadequate. The second ground was that the Judge failed to direct the jury adequately in relation to certain factual submissions made by the prosecutor during her closing address. The application for permission to appeal on the first ground was refused by a single Judge, but the appellant renewed his application. Permission to appeal on the second ground was granted.

The central legal issues in this appeal revolved around the adequacy of the trial Judge's instructions to the jury. The first issue was whether the Judge’s directions on the burden of proof were sufficient, particularly if the jury rejected the appellant’s evidence. The second issue was whether the Judge should have provided additional direction to the jury regarding the prosecutor’s factual submissions, which the appellant argued required correction or cautionary remarks. The court had to determine whether these alleged deficiencies in the trial process were significant enough to warrant a new trial.

The court found that the Judge’s directions on the burden of proof were adequate. The Judge clearly instructed the jury that the prosecution had to prove each element of the charges beyond reasonable doubt and that the appellant did not need to prove anything. The court held that while a more detailed direction might sometimes be necessary, it was not required in this case. However, the court did find that the Judge failed to adequately direct the jury regarding certain factual submissions made by the prosecutor. The court concluded that the failure to correct or caution the jury about these submissions meant that the defence case was not adequately put to the jury, creating an unacceptable risk of a miscarriage of justice. Consequently, the appeal against the conviction was allowed, the convictions were set aside, and a retrial was ordered.

The final orders of the court were that the appeal against conviction was allowed on the second ground, the convictions were set aside, and a retrial was ordered on the original Information. The application for permission to appeal on the first ground was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appeal raises two issues. First, whether the Judge failed to direct the jury adequately in relation to certain factual submissions put by the prosecutor to the jury in her closing address. The complaint is that the submissions called for correction by the Judge, or at least for some cautionary remarks, and that the Judge did not do either of these things. Permission to appeal has been granted on this ground. The second issue is whether the Judge’s directions on the burden of proof are adequate. A single Judge refused permission to appeal on this ground. Mr Smith has renewed his application for permission to appeal.Facts I can state the facts quite briefly, because an understanding of the issues on appeal does not require much by way of background. The complainant J was 27 years old when she gave evidence. The alleged offences occurred between July 1989 and October 1998. J was aged between eight years and 17 years at the time of the alleged offences. J’s parents separated in 1984. Her mother Ms CF began to live with Mr Smith at that time. J and her younger sister lived with their mother. Ms CF married Mr Smith in 1988. J and her younger sister continued to live with their mother. There were three children of the marriage. From 1988 the family lived on a farming property. The prosecution case was that between 1989 and 1998 Mr Smith sexually abused J. The prosecution case included allegations of numerous sexual acts, of different kinds, that were not the subject of charges. Most of the alleged conduct occurred on the farming property on which the family lived. The jury could have convicted only if they were satisfied, beyond reasonable doubt, that J’s evidence was truthful and reliable. The Judge rightly told the jury that the prosecution case must fail unless the jury accepted J’s evidence as proof of the charges. There was no corroborative evidence. Mr Smith gave evidence. He denied that he had committed any of the alleged offences, and denied that he had performed any of the uncharged acts. It was a case of the word of J against the word of Mr Smith.Burden of proof The Judge directed the jury, in the usual way, that the burden of proof rested on the prosecution; that each element of each count must be proved by the prosecution; that Mr Smith had to prove nothing, and that proof meant proof beyond reasonable doubt. No criticism can be made, or was made, of what the Judge said. The directions were clear and to the point. Mr White, counsel for Mr Smith on appeal, submits that the Judge was required to tell the jury that even if they were to reject Mr Smith’s evidence, that was not enough to support a guilty verdict. The Judge should have told the jury that they had to go further and accept the evidence of J as proof beyond reasonable doubt. The suggested further direction is a correct statement of the law. In some cases the circumstances might call for a direction along these lines. But it cannot be said that this further direction will always be necessary, nor was it necessary here. The ultimate question is whether the Judge adequately brought home to the jury the requirement for proof beyond reasonable doubt, and what that requirement means. The Judge’s directions were clear, were repeated several times, and adequately identified the jury’s responsibility.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ (dissent) ANDERSON J DAVID J

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Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, DAVID J

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