R v Smith No. Sccrm-98-277 Judgment No. S109

[1999] SASC 109

R  v  SMITH
[1999] SASC 109

COURT OF CRIMINAL APPEAL:   Millhouse, Prior and Duggan JJ

1. MILLHOUSE J.       I agree that the appeal should be dismissed for the reasons of Duggan J.

2. PRIOR J.          I agree with what Duggan J has written.  None of the grounds of appeal have been made out.  The verdict of the jury was not unreasonable.  It was supported by the evidence.  There was no miscarriage of justice.

3. DUGGAN J.              The appellant was convicted of the offence of unlawful sexual intercourse with a person under the age of 12 years.   The complainant was  eight years of age at the time of the alleged offence.   She was holidaying with her family at Cactus Beach on the West Coast of South Australia and it was alleged that the offence took place while the appellant, who was 20 years of age at the time, was playing in the sandhills with a group of children including the complainant.   The appellant denied meeting the complainant or being in her company at any time.   There was no identification of the appellant by the complainant and the case against the appellant was predominantly circumstantial in nature.

4. The grounds of appeal allege that the trial judge misdirected the jury in relation to the aspects of complaint and circumstantial evidence.   It was argued that the defence was not canvassed adequately in the summing-up and that the jury were misdirected in relation to evidence said to be supportive of the complainant’s version.   It was also claimed that the verdict was unsafe and unsatisfactory.

5. According to the evidence, a number of people, including the complainant’s family, were camped along a section of the beach during the school holidays.   The complainant said that on the day of the alleged offence she and her younger brother met up with a man on the beach and went crabbing with him.   She said his name started with “J”.   (The appellant’s first name is Jason).   She said he had “creamish” hair which was done up in a ponytail.   According to her evidence it was still daylight when she went back to the family tent after the crabbing activity.

6. The complainant said that after tea the same man came over to her family tent and asked if she and her brother would like to play a game of hide and seek.   She said her mother agreed to them playing the game.   She and her brother went off with the man.   Other children joined in the game.   By now it was dark and they used torches.   They split up into groups and at one stage the man was alone with the complainant.   She said he asked her to pull her pants down and claimed that he touched her with his fingers “inside my front bottom”.   He then undid his fly.   She said he was wearing black jeans and he asked her touch his penis.   She did so and he asked if she would like to put her mouth on it.   She said “No”.   It was…