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 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.
This ground of appeal is not reasonably arguable. I would refuse permission to appeal on this ground. If this ground raises a question of law alone, and permission to appeal is not required, I would dismiss the appeal on this ground.
The prosecutor’s address
It now becomes necessary to refer to an aspect of the evidence. During the course of evidence, some photographs of family members and of the family home were tendered by the prosecutor.
One of the photographs was shown to J in evidence. She said it was taken by her mother at their home. It appears that J was about 14 years of age at the time. It shows Mr Smith pulling down J’s pants and giving her what is commonly called a “wedgie”, by pulling her underpants up. It seems to have been common ground at trial that this was regarded within the family as a joke. There does not appear to have been any suggestion otherwise.
Another photograph was shown to J. It was taken in early 1993, when J was 12 years old. It is a picture of J unclothed, standing in the shower, taken from behind. The evidence was that the picture was taken by Mr Smith. J said that she was taken by surprise and was embarrassed, and that Mr Smith said that he was taking the picture of her “bum”, because “it’s getting big.” Again, J said that this was said and done in a joking manner. In cross-examination J said that she did not regard it as a joke, but seems to have accepted that other family members thought it was funny at the time.
Mr Smith was cross-examined in some detail about the photographs. As to the second photograph, he said that J was “raving” about a boy at school that she liked, and that he took the photo as a joke, so that it could be used to show what a big “bum” she had. He insisted that it was a light hearted incident.
As to the other photograph, he maintained that the incident it depicted was just a joke.
The prosecutor suggested to Mr Smith in cross-examination that the photo of J in the shower indicated that he had an interest in her bottom. He denied that. He denied being attracted to J, and denied that that was why he took the photograph. He maintained that the size of J’s “bum” had been something of a family joke.
There was no suggestion, as I understand it, that the two photographs were found in Mr Smith’s possession. I assume that they came from J or from her mother or from another family member.
Ms CF gave evidence, as a witness in the prosecution case. She said that the photograph of J in the shower was part of a joke about J’s “big bum.” She said that she was the one who had the photograph of J being given a “wedgie”, and agreed that the photograph reflected Mr Smith’s “immature sense of humour as an adult.”
No objection was taken by defence counsel to the tender of the photographs, nor was any objection made to any of the questions asked by the prosecutor relating to the two photographs in question.
The photographs featured prominently in the prosecutor’s closing address to the jury.
The prosecutor referred to the photograph taken in the shower, saying that J did not have privacy even in the shower. She referred to J’s evidence about the photograph, and asked the jury what would they be thinking if they were a young child and were put in that position.
The prosecutor went on to address the jury about Mr Smith, and suggested to them that he was “a very domineering and controlling person” who disguised “predatory and manipulating behaviour with inappropriate humour.”
She then referred again to the photograph of J in the shower, and suggested that it was a “rather disturbing photograph.” She cast doubt on Mr Smith’s explanation for the photograph, namely that it might be shown to the boy that J “raved” about. She suggested that this involved humiliation of J, of a kind that no parent would inflict on a child. She said that if Mr Smith had allowed the photograph to be taken to J’s school, that would be “completely inappropriate”, and would give “an insight into the way the accused thinks about [J] at this particular time”. She made the point that J had already passed through puberty, and had developed breasts some two years before. She said the photograph demonstrated a lack of respect for J and for her privacy.
Having made a number of forceful points of this kind, the prosecutor then said that the photograph taken in the shower “…will allow you without hesitation to dismiss those denials”, referring to Mr Smith’s denials of impropriety. She said, referring to the photograph, “This is the unashamed modus operandi of a controlling child abuser.” This point was made as if it was a matter of fact. She said there was nothing funny about the photograph.
As to the other photograph, involving the “wedgie”, she poured scorn on the suggestion that this was really a joke. She said that the suggested humour was “very inappropriate humour”, and that “this was part of his controlling and manipulative demeanour in the household, and it was the way in which he disguised his predatory and manipulating behaviour”.
She concluded her address with a reference to the photographs. She asked rhetorically, “What were the real motives behind the accused taking this photograph?”. She suggested that it gave an insight into the family environment and what was going on at the time. She said that a consideration of the motives for the photographs led to an inescapable conclusion of guilt. On that note she concluded her address.
In his address to the jury counsel for Mr Smith made the point that the second of the photographs was taken by J’s mother. He suggested that the prosecutor had not understood the attitude within the family to the circumstances of the photographs, and that while they may reflect immature humour on the part of Mr Smith, they reflected nothing more that that. He made the point that there was no suggestion that Mr Smith had or had ever had a copy of either photograph.
The Judge referred only briefly to the photographs, and to the submissions relating to them. Close to the end of the Judge’s directions to the jury he said:
During the course of the evidence a number of peripheral issues were raised; matters like the bag search, the wedgies, the naked photograph. I do not propose to deal with any of them. You heard the evidence, you have heard what counsel has said about them. I will leave it to you to make what you will of the peripheral issues.
There is only one peripheral matter which I must mention briefly. You heard evidence of a marijuana crop. For the purpose of this case, that crop is irrelevant. You should not reason that, because the accused grew marijuana, that he is the sort of person who may have committed the offences which are alleged against him.
My suggestion, ladies and gentlemen, is that you should focus on the evidence as to the five specific counts which are alleged.
That is all that the Judge said in relation to the prosecutor’s submissions about the photographs.
I consider that more was called for from the Judge on the topic of the photographs, to ensure a balanced summing up and a fair trial.
There are two reasons for this.
First, the prosecutor made the photographs, and the inferences that might be drawn from them, a prominent part of the prosecution case. She went so far as to suggest that the jury’s consideration of the photographs might lead to a finding of guilt.
Second, the prosecutor’s submissions invited the jury to move from disapproval of the taking of the photographs to a conclusion that the explanation for them was that they were motivated, not by misplaced humour, but by predatory and sexual motives. The prosecutor’s submission was a powerful one, because it blended disapproval of the taking of the photographs with a rejection of the suggested explanation, and an argument that the photographs revealed what was really going on in the family.
The reference to “the unashamed modus operandi of a controlling child abuser” reads not as a submission as to an inference that might be drawn, but as a statement of fact. The jury might have thought that this statement was based on experience. The reference to “predatory and manipulating behaviour”, while put as part of a suggestion, also reads as if it is a statement of fact.
The prominence given to the photographs, and the manner in which the prosecutor suggested they might be used, meant that the Judge should have dealt with this topic.
The jury should have been reminded of the need to consider dispassionately the evidence about the photographs; to bear in mind the support for Mr Smith’s explanation; to remember that different families function in different ways, and to distinguish between disapproval of Mr Smith’s conduct and the drawing of the suggested inferences. The jury needed to be told that the prosecutor’s statements about “a controlling child abuser” and “predatory and manipulating behaviour” were no more than a submission, and were something that they had to decide, not a fact upon which they could base their decision. This was required to correct any tendency towards misplaced reliance on what the prosecutor said.
The failure to deal with these matters meant that the defence case was not put adequately to the jury. As well, there was a need for some guidance to be given to the jury on how they might use the photographs, and that guidance was not given.
I have not overlooked the fact that the trial Judge was better placed than this Court to assess the atmosphere of the trial. The fact that defence counsel did not request a direction on the topic, could suggest that the prosecutor’s submission was not as potent as it seems in written form. I have given careful thought to this.
But having read the relevant part of the transcript several times, I am left with the firm impression that the topic is one that the Judge should have dealt with.
For those reasons I conclude that there is an unacceptable risk of a miscarriage of justice. The appeal against conviction should be allowed. The convictions should be set aside. A retrial should be ordered on the Information.
ANDERSON J. I agree with the orders proposed by the Chief Justice and I agree with his reasons.
DAVID J. I would allow the appeal for the reasons given by the Chief Justice. I also agree with the orders he proposes.