R v Smith - [2014] QCA 315

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2014] QCA 315

PARTIES:

R
v
SMITH, Garry Calvin
(appellant)

FILE NO/S:

CA No 101 of 2014
DC No 1944 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2014

JUDGES:

Holmes, Muir and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Allow the appeal.

2.    Set aside the conviction on each of Counts 1, 2, 3, 5 and 7.

3.    Enter an acquittal on each of the said counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the complainant children were attending school swimming lessons with the appellant instructor – where the appellant allegedly indecently touched the complainants as they were swimming – where the appellant was charged with seven counts of indecent treatment of a child under 12 years of age – where the appellant was convicted of five charges and sentenced to a total of twelve months’ imprisonment, to be suspended after four months with an operational period of two years – where after the jury retired they asked to view again the complainants’ pre-recorded evidence in relation to three counts – where the learned trial judge directed the jury not to place undue weight upon that evidence because they had seen it twice – whether the direction was sufficient

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where there were inconsistencies in the complainants’ evidence – whether there was a sufficiently reliable basis for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v FAE[2014] QCA 69, cited
R v MCC[2014] QCA 253, cited
R v SCG[2014] QCA 118, cited

COUNSEL:

J R Hunter QC for the appellant
B J Power for the respondent

SOLICITORS:

McGinness & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of Gotterson JA and the orders he proposes.

MUIR JA: I agree with the reasons of Gotterson JA and with the orders he proposes.

GOTTERSON JA: At a trial in the District Court at Brisbane which concluded on 17 April 2014, the appellant, Garry Calvin Smith, was found guilty on five counts in a seven count indictment. Each of the seven counts alleged an offence against s 210(1)(a) of the Criminal Code (Qld) (“the Code”) of indecent treatment of a child under 12 years of age. For two of the counts on which the appellant was convicted, Counts 1 and 5,…

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 [2014] QCA 315
Case: [2014] QCA 315
Decision Date: 2 December 2014

CaseChat Overview and Summary

In the case of R v Smith, the appellant was convicted by a jury of five counts of indecent treatment of a child under 12 years of age and sentenced to a total of twelve months’ imprisonment, suspended after four months with an operational period of two years. The appellant appealed against his conviction, raising issues concerning the adequacy of the trial judge's direction to the jury and the sufficiency of the evidence to support the conviction.

The court examined whether the trial judge's direction to the jury not to place undue weight on the complainants’ pre-recorded evidence, which they had viewed twice, was sufficient. The court considered the nature of the direction and its effect on the jury's assessment of the evidence. Additionally, the court assessed the reliability of the complainants’ evidence, noting inconsistencies, and determined whether there was a sufficiently reliable basis for the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Upon review, the court found that the direction given by the trial judge was not sufficient to ensure a fair trial. The court also found that the inconsistencies in the complainants’ evidence undermined the reliability of their testimony, leading to doubt about the appellant's guilt. Consequently, the court allowed the appeal, set aside the convictions on five counts, and entered an acquittal on those counts.

The court's final orders were to allow the appeal, set aside the conviction on each of Counts 1, 2, 3, 5 and 7, and enter an acquittal on each of the said counts.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the conviction on each of Counts 1, 2, 3, 5 and 7.

3. Enter an acquittal on each of the said counts.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Smith [2014] QCA 315
PARTIES:	R v SMITH, Garry Calvin (appellant)
FILE NO/S:	CA No 101 of 2014 DC No 1944 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2014
JUDGES:	Holmes, Muir and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal. 2. Set aside the conviction on each of Counts 1, 2, 3, 5 and 7. 3. Enter an acquittal on each of the said counts.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the complainant children were attending school swimming lessons with the appellant instructor – where the appellant allegedly indecently touched the complainants as they were swimming – where the appellant was charged with seven counts of indecent treatment of a child under 12 years of age – where the appellant was convicted of five charges and sentenced to a total of twelve months’ imprisonment, to be suspended after four months with an operational period of two years – where after the jury retired they asked to view again the complainants’ pre-recorded evidence in relation to three counts – where the learned trial judge directed the jury not to place undue weight upon that evidence because they had seen it twice – whether the direction was sufficient CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where there were inconsistencies in the complainants’ evidence – whether there was a sufficiently reliable basis for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v FAE[2014] QCA 69, cited R v MCC[2014] QCA 253, cited R v SCG[2014] QCA 118, cited
COUNSEL:	J R Hunter QC for the appellant B J Power for the respondent
SOLICITORS:	McGinness & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent