R v Smith - [2009] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 864 of 2007

THE QUEEN
	v
LEON GRAHAM SMITH

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JUDGES:	BUCHANAN, VINCENT and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2009
DATE OF JUDGMENT:	1 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 85

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CRIMINAL LAW – Rape – Lies by offender admitted as evidence of consciousness of guilt – Lies capable of supporting the complainant’s testimony – No evidence of alternative offence - Mens rea – Directions incorrect – No miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Lewenberg & Lewenberg

BUCHANAN JA:

The applicant seeks leave to appeal against his conviction and sentence on a single count of rape. The applicant was convicted after a trial in the County Court and sentenced to be imprisoned for a term of five years with a minimum term of three years.

The complainant, a 20 year old girl, gave evidence that she left home at 11.30 pm on 28 December 2005 after consuming a bottle of chardonnay and went to a night club in South Yarra. When the night club closed, she travelled by taxi to another night club in the city and remained there until that club closed at 7 am. The complainant consumed a considerable quantity of alcohol at each of the clubs. She left the second night club, ate at a McDonalds store and then went to Flinders Street railway station to catch a train home.

The complainant boarded the train, put her feet up on the seat in front of her and went to sleep. Surveillance cameras on the train showed that the applicant also boarded the train at Flinders Street and sat in the seat diagonally opposite the complainant. The complainant intended to alight from the train at Merlynston station. The complainant failed to wake up in time to get off the train and remained asleep when the train arrived at the end of the line at Upfield. A surveillance camera showed the train driver endeavouring, without success, to wake up the complainant. The applicant did not get off the train but remained seated opposite the complainant.

From Upfield the train travelled back towards Flinders Street. As the train approached North Melbourne station, the complainant said that she woke up ‘feeling fingers coming out of … my vagina.’ There was a man sitting diagonally opposite the complainant, who said ‘Sorry’ and the complainant said that she replied ‘That’s ok’. She said that she was feeling upset and ‘she knew it wasn’t ok.’ She began crying, alighted from the train at North Melbourne station and signalled to the driver to stop the train. She told the driver that ‘A guy had touched me’. She then waited until the police arrived. Members of the police force gave evidence that the complainant was crying and upset. She appeared to be slightly intoxicated. She told the police…

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 [2009] VSCA 85
Case: [2009] VSCA 85
Decision Date: 1 May 2009

CaseChat Overview and Summary

In the case of R v Smith, the accused was charged with the rape of a woman. The case was heard in the relevant court, which was tasked with determining the guilt or innocence of the accused based on the evidence presented. The central issue in this case was whether the lies told by the accused, which were admitted as evidence of consciousness of guilt, could support the complainant's testimony. Furthermore, the court had to consider if there was any evidence of an alternative offence and whether the directions given to the jury regarding the mens rea of the offence were correct. Ultimately, the court needed to decide if the errors in the directions led to a miscarriage of justice.

The court examined the lies told by the accused and found that they were capable of supporting the complainant's testimony, which was a crucial aspect of the case. The court also considered whether there was evidence of an alternative offence but found that there was none. The most significant issue was whether the directions given to the jury regarding the mens rea of the offence were correct. The court found that the directions were indeed incorrect, but this did not lead to a miscarriage of justice, as the jury was still able to find the accused guilty based on the other evidence presented.

In reaching its decision, the court considered the evidence presented, the credibility of the witnesses, and the impact of the incorrect directions on the overall outcome. The court found that the lies told by the accused, when considered alongside the complainant's testimony and other evidence, were sufficient to support the conviction. Despite the incorrect directions, the court determined that there was no miscarriage of justice, as the jury was still able to reach a just and fair verdict based on the evidence presented.

The final orders of the court were that the conviction of the accused would stand, and the appeal would be dismissed. The court emphasised that the errors in the directions did not lead to a miscarriage of justice and that the evidence presented was sufficient to support the guilty verdict. The court also noted that the incorrect directions did not materially affect the outcome of the case, and the conviction should remain in place.

Orders