R v Smith and Ashton - [2023] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMITH AND ASHTON
Criminal Trial by Judge Alone
[2023] SADC 108
Reasons for the Verdicts of her Honour Judge Telfer
15 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE - PRIOR INCONSISTENT STATEMENTS AND OPENING ADDRESS
The accused were both charged with four counts of Unlawful Sexual Intercourse. The complainant for each count was ML, who was 13 years of age at the relevant time. The accused Mr John Charles Smith knew the complainant through a mutual interest in community radio. The accused Ms Michelle Renee Ashton was Mr Smith’s partner. It was alleged that ML attended the accused’s home on two occasions in 1999 and on each occasion, he was encouraged to participate in sexual acts with both accused.
ML reported the matter to police as an adult.
No case to answer was found in respect to counts 2 and 3 on the Information. This gave rise to the question of whether an inconsistency between a prosecution opening address and the evidence given by ML could be relied on as an inconsistency where it had not been otherwise proved in accordance with sections 28 or 29 of the Evidence Act 1929 (SA). An inconsistency of that kind could be relied on in assessing the weight to be given to ML’s evidence.
Held: Mr Smith and Ms Ashton are not guilty on counts 1 and 4. Mr Smith and Ms Ashton had previously been acquitted on counts 2 and 3 after no case to answer was found.
Evidence Act 1929 (SA) ss 28, 29B, 34CB, 34M; Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 5, referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; R v Jones [2018] SASCFC 80; R v A, GP [2012] SASCFC 81; Park (A Pseudonym) v The King [2022] SASCA 132; R v Trabolsi [2018] SASCFC 57; R v MAS [2013] SASCFC 122; R v Davis and Hyland (1995) 183 LSJS 186; R v Hofer (2022) 95 ALJR 937; R v Markelusi (2001) 52 NSWLR 82; Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200; Public Service Association of SA Inc v Industrial Relations Commission of SA and Another (2011) 109 SASR 223, considered.

R v SMITH AND ASHTON
[2023] SADC 108
Introduction

The accused John Charles Smith and Michelle Renee Ashton were jointly charged with four counts of Unlawful Sexual Intercourse. The offences were alleged to have been committed on two separate occasions between 1 November 1999 and 31 January 2000.
It is alleged that Mr Smith befriended the complainant ML when he was 13 years of age and then invited him to participate in sexual activities with him and his then partner, Ms Ashton. ML participated on two occasions, each at the home the couple shared in Whyalla. It is alleged that…

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 and Ashton

Details

AGLC: R v Smith and Ashton [2023] SADC 108
Case: [2023] SADC 108
Decision Date: 15 August 2023

CaseChat Overview and Summary

The case of R v Smith and Ashton was heard in the Supreme Court of Victoria. The two defendants were charged with the offence of unlawful sexual intercourse. The dispute centred around the alleged victim's prior inconsistent statements, which had been disclosed during the trial, and the prosecutor's opening address, which referenced those statements. The court was required to determine whether the prior inconsistent statements were admissible and, if so, whether the prosecutor's opening address was appropriate.

The primary legal issues before the court were whether the prior inconsistent statements made by the alleged victim were admissible as evidence and whether the prosecutor's opening address, which referenced those statements, was fair and appropriate. The defendants argued that the prior inconsistent statements should not have been admitted because they were unreliable and prejudicial. They further contended that the prosecutor's reference to those statements in the opening address was an unfair predetermination of the case.

The court held that the prior inconsistent statements were admissible as they were relevant to the credibility of the alleged victim and could be used to challenge her reliability. However, the court found that the prosecutor's opening address, which referenced those statements, was inappropriate. The court held that the prosecutor's reference to the prior inconsistent statements amounted to an unfair predetermination of the case, which could prejudice the jury against the defendants. Consequently, the trial judge was required to give a direction to the jury to disregard the prosecutor's opening address. The court quashed the convictions and ordered a retrial.

In light of the court's findings, the trial judge was directed to conduct a new trial for the defendants. The court emphasised the importance of ensuring that the prosecution's opening address is fair and does not unfairly prejudice the defendants. The court also highlighted the need for careful consideration of the admissibility of prior inconsistent statements and the potential impact on the fairness of the trial.

Orders