R v Smith - [2013] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2013] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Blue and The Honourable Justice Nicholson)
22 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CREDIBILITY - OTHER MATTERS
This is an application for permission to appeal against conviction. The defendant and applicant was convicted following a trial before a jury of the offence of persistent sexual exploitation of a child. The defendant was the brother of the complainant’s step-father. The defendant and the complainant both gave evidence. The prosecutor made statements during his closing address which, according to defence counsel, suggested that the defendant bore an onus to satisfy the jury that the complainant had a motive to lie or had concocted her story. The Judge directed the jury that the prosecution bore the onus of establishing that the complainant gave truthful and reliable evidence, and that the defendant was not required to give any explanation for why the complainant might lie.
Whether the Judge erred in failing to discharge the jury and order a retrial. Whether the directions of the Judge regarding credibility and reliability would have led to a risk that the jury would conflate the two concepts.
Held per the Court (dismissing the application for permission to appeal):
(1) The submissions of the prosecutor would not have had such a prejudicial effect as to give rise to a miscarriage of justice (at [12]). Any possibility of prejudice was overcome by the directions of the Judge (at [11]-[12]).
(2) The Judge’s directions regarding credibility and reliability were clear and unambiguous (at [16]).

R v SMITH
[2013] SASCFC 128
Court of Criminal Appeal: Gray, Blue and Nicholson JJ
THE COURT.

This is an application for permission to appeal against conviction.
On 5 August 2013, the defendant and applicant, Matthew Raymond Smith, following a trial in the District Court, was convicted by unanimous jury verdict of the offence of persistent sexual exploitation of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). The amended particulars of the offence provided as part of the Information were as follows:
Matthew Raymond Smith between the 13th day of August 2002 and the 31st day of December 2007 at Holden Hill and Elizabeth South, over a period of not less than three days, committed more than one act of sexual exploitation of [the complainant], a person under the age of 17 years, by touching her vagina and breasts, hugging and kissing her, inserting his penis into her vagina, attempting to insert his penis into her vagina, touching his penis whilst in her presence, causing her to touch and…

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 [2013] SASCFC 128
Case: [2013] SASCFC 128
Decision Date: 22 November 2013

CaseChat Overview and Summary

The case of *R v Smith* concerned an appeal against conviction for the offence of maintaining an unlawful relationship with a child. The appellant, Mr Smith, had been found guilty by a jury of this offence.

The central legal issues before the appellate court were whether the trial judge had misdirected the jury regarding the elements of the offence, particularly concerning the requirement of "unlawful relationship," and whether the judge had failed to adequately direct the jury on the issue of the complainant's credibility. The appeal also raised questions about the admissibility and use of certain evidence relating to the complainant's prior sexual history.

The court considered the definition of "unlawful relationship" in the context of the relevant legislation, determining that it required proof of a relationship that was not merely sexual but also involved a degree of ongoing association or connection beyond a single sexual act. The judges analysed the trial judge's directions to the jury, finding that they had not sufficiently clarified this distinction, potentially leading to a misunderstanding of the elements the prosecution was required to prove. Furthermore, the court examined the principles governing directions on credibility, particularly where a complainant's evidence is central to the prosecution's case, and concluded that the trial judge's directions had been inadequate in this regard.

The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders