R v Smith

[2001] QCA 289

[2001] QCA 289

COURT OF APPEAL

McMURDO P
McPHERSON JA
PHILIPPIDES J

CA No 128 of 2001
CA No 177 of 2001

THE QUEEN

v.

SIMON JOHN SMITH

BRISBANE

..DATE 23/07/2001

JUDGMENT

McPHERSON JA:  On 23 March 2001, the applicant for extension of time to appeal was convicted at a trial in the District Court at Ipswich of one count of raping a 15 year old girl on 15 August 1998 and a further count of depriving another 15 year old girl, Angela, of her liberty on the same night.  He was 20 years old at the date of the offence and 23 at trial.

The complainant and Angela met the applicant at a nightclub in Ipswich where they had been drinking.  Later that night when all three were sitting together the applicant offered the girls $110 to have sex with him, which offer they declined.  They walked around the city together and the girls followed the applicant to a block of flats where he was living and where the offences were later committed.
The applicant waved them along a path beside the flats and told them to go upstairs into what he told them was the lounge area.  The complainant and Angela when into the room and found it was not a lounge but a laundry.  The applicant followed them into the laundry and shut and bolted the door. 
He produced a knife, pushed Angela into a corner and then grabbed the complainant and tried to pull down her pants.  In resisting, she sustained a cut on her finger from the knife.  While holding the knife to the complainant's throat the applicant raped her.  He threatened to kill them if they told anyone what had happened.  Despite that they ran to the home of a Mr Collins and at their request he took them to a police station, where they laid complaints. 

The applicant was interviewed by police on the same night.  He denied knowing the girls or having been with them that night.  The complaint of rape was supported by DNA evidence and by marks on the complainant's neck, scratches on her back or buttocks and by her distressed condition.  Later, at the trial, the applicant admitted he had lied to the police, claiming that he had done so because he had not wished to get into trouble for something he said he did not do. 

At the trial a defence witness named Mueller, who is the applicant's cousin and who was staying in the flat, said he heard moaning sounds coming from the laundry, from which he inferred that sexual intercourse was taking place.

Mueller was the brother of a woman or girl named Gladys Smith, who is also a cousin of the applicant.  She says she was staying at the flat on the night in question.  She says she let the applicant and the two complainants into the flat on the night and they went into a bedroom next to the one where she was sleeping, which is close to the laundry.  She said she heard the two girls talking and heard someone say "wait for a while".  Then she heard the complainant say "just get it over with".  She looked out and saw Angela sitting at the top of the steps and then saw the complainant come from the laundry area and say to Angela "let's go" or words to that effect.  Their demeanour, she said, was normal and she heard no-one screaming. 

It is now sought to adduce the evidence of Gladys in support of the applicant's application to extend time to appeal and as fresh evidence at the new trial that would follow if the application was successful. 

However, the evidence of Gladys does not in my opinion satisfy any of the requirements expected of such evidence.

It is neither cogent nor, I would think, credible.  She says she was not aware of the applicant's predicament until after she heard of his conviction, when she first came forward with her statement.  However, she let the complainants, whom she knew, into the flat that night together with the applicant, and she was there on the following morning when the police called at the flat to search for evidence.  It defies rational belief that she was not aware, from her brother Mueller who testified at the trial, of the charge against the applicant and that she was not interested in the fate of the charge that was laid against her cousin, or that she would have made no attempt to volunteer her evidence to the police until after the trial.  Furthermore, her account of the condition of the girls when they left that night is at odds with the evidence of other and independent witnesses who saw them soon afterwards.  It is also inconsistent with the story that the applicant first told police that he had not been with the girls at all that night.  She let them into the flat, and her statement would, if recounted at the earliest time, have contradicted him straight away and before the DNA material was obtained from him.  At that time Gladys said nothing to the police.  Her account, in addition, could with reasonable diligence have been discovered well before the trial. 

Even if these difficulties are ignored, her account of events, although in some respects inconsistent with the girls' evidence, does not directly contradict the complainant's claim, supported as it was by Angela, that intercourse took place without consent.  The cut on the complainant's finger tends to corroborate her claim that the applicant used force and that he threatened them with a knife, as do the other marks that were seen on her body.

For all these reasons I consider that the evidence of Gladys Smith is not sufficient to undermine the clear impression that the jury would have formed that the applicant was rightly convicted, or to justify this Court in ordering a new trial.  It follows that there is no good reason for extending the time within which to appeal against conviction, even though the notice of appeal was, it seems, only about a month or so out of time.

I would refuse the application to extend time for appealing.

THE PRESIDENT:  I agree.  The evidence of Ms Smith sought to be adduced as fresh evidence, if the applicant was successful in this application for an extension of time, was available to the applicant to produce at his trial with reasonable diligence on his part.

There are questions as to the credibility of the new evidence of Ms Smith but in any case there is no significant or real possibility that a jury acting reasonably would have acquitted the appellant of rape if Ms Smith's evidence had been before it.

I agree the application should be refused. 

PHILIPPIDES J:  I agree. 

THE PRESIDENT:  The order is the application is refused.

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