R v Smith - [1995] QCA 501

IN THE COURT OF APPEAL

[1995] QCA 501

[1995] QCA

SUPREME COURT OF QUEENSLAND

C.A. No. 198 of 1995

Brisbane

Before Macrossan

C.J.

McPherson J.A.
Helman J.

[R. v. Smith]

T H E Q U E E N

KELVIN JOHN SMITH

(Applicant)
Macrossan C.J. McPherson J.A. Helman J.

Judgment delivered 14/11/95

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS CRIMINAL LAW - INDECENT ASSAULT - RAPE - CORROBORATION - Whether corroborative evidence confirmed the testimony of the complainant in a material particular - Whether expert evidence gave a deceptive appearance of scientific accuracy to a case that was weak, or bolstered evidence that was flawed - Whether sentence is manifestly excessive.

Counsel:	D.J. Richards for the appellant L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant

Queensland Director of Public Prosecutions for the respondent

Hearing Date:

27 July 1995

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 14th day of November 1995

The appellant was convicted of indecent assault and rape and sentenced to imprisonment for seven years. The complainant was an acquaintance of the appellant and a woman named Emily with whom he lived in a two bed-roomed house at 32 Camp Street, Aitkenvale. They all had a common interest in CB radio, and the complainant used to visit them at that address. Sometimes both of them were there. On occasions only Emily was there when the complainant visited, or only the appellant. She would sometimes stay and talk to him.

On Sunday 10 October 1993, the complainant called at the house at about 7.30 p.m. Emily was not at home, but the complainant stayed and talked to the appellant. They began drinking wine, of which the complainant consumed a considerable quantity. After she had cooked something to eat, and they had eaten it, she said she was going home. It was then about midnight or later. The appellant said "You've been drinking. I'm not going to let you go home". There was a struggle. He picked her up in a fireman's lift over his shoulder, took her into the main bedroom, and threw her on the double bed. Despite her resistance, he pulled off one leg of her slacks and of her underpants and put his finger in her vagina, while holding his hand over her mouth. Then she felt his penis penetrating her vagina.

Afterwards, the complainant cycled home, arriving at about 3.00 a.m. She had a shower, and went to bed for a few hours, before making a complaint to her mother about what had happened. They went to the rape crisis centre, and then to the police station. Later that day she was medically examined and swabs were taken.

Some of the complainant's clothing was sent to Brisbane for forensic examination. Mr Cox, who is a forensic scientist with the Department of Health, said he could detect no seminal fluid or spermatozoa on the slides prepared from the swabs…

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 [1995] QCA 501
Case: [1995] QCA 501
Decision Date: 14/11/1995

CaseChat Overview and Summary

The case of R v Smith was heard by the Supreme Court of Queensland, where the appellant, Kelvin John Smith, contested his conviction for indecent assault and rape, as well as the subsequent sentence of seven years imprisonment. The complainant, an acquaintance of the appellant, alleged that she was raped by him after a night of drinking at his residence. The appellant denied the allegations, admitting only that the complainant had been present at his house the previous night. The case hinged on the complainant's testimony and the corroborative forensic evidence provided by Mr Cox, a forensic scientist who detected seminal stains on the complainant's underpants and a bed sheet from the appellant's bedroom, though no spermatozoa were found. The appellant argued that the trial judge should not have admitted expert evidence from Dr Schaefer, a gynaecologist, who testified about the low incidence of azoospermia in the male population, a condition where semen is produced without sperm. The appellant claimed this evidence was misleading and prejudicial.

The court examined whether the expert evidence provided misleading information that could have unduly influenced the jury. The court found that while the evidence of Dr Schaefer was not perfect, as it did not account for men who were azoospermic due to vasectomies, it still demonstrated that the incidence of naturally azoospermic males is low. The trial judge's directions to the jury highlighted the limitations of this evidence, ensuring that the jury could appreciate its proper weight. The court concluded that the evidence, though not flawless, did not cause the trial to miscarry nor provide a basis for overturning the conviction. Additionally, the court found the sentence imposed was not manifestly excessive, considering the appellant's extensive criminal history and the circumstances of the offence.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also refused.

Orders