Regina v Smith - [1999] NSWCCA 28

CITATION: Regina -v- Smith [1999] NSWCCA 28

FILE NUMBER(S): CCA 60419 of 1998

HEARING DATE(S): 7 December; 1998

JUDGMENT DATE:
10 March 1999

PARTIES :

Samuel John Darrell Smith - App
Regina - Resp

JUDGMENT OF: Ireland J at 1; Hulme J at 69; Barr J at 82

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/31/0445

LOWER COURT JUDICIAL OFFICER: Viney DCJ

COUNSEL: Paul Byrne, SC/K O Earl - App
GIO Rowling - Resp

SOLICITORS: Messrs Collins & Thompson - App
S E O'Connor - Resp

CATCHWORDS: Indecent assault of a female and act of indecency - under 16 years and under authority; sexual intercourse with a person of 10 yrs of age and under 16 yrs under authority - whether unsafe and unsatisfactory - whether medical evidence called on the voir dire but not called before the jury is "fresh" or "new" evidence on appeal (held not to be so). Appellant bound by decision of his trial counsel - Ignjatic (1993) 68 A Crim R 333 @ 336 applied.

ACTS CITED: Crimes Act 1900. Ss 61E
61E(1A)
66C(2)

CASES CITED:
Ignjatic (1993) 68 A Crim R 333 @ 336

DECISION: Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL
60419 of 1998
IRELAND J
HULME J
BARR J
Wednesday, 10 March, 1999

REGINA -v- Samuel John Darrell SMITH

JUDGMENT

1 IRELAND J: This is an appeal against conviction by Samuel John Darrell Smith, who pleaded not guilty to each of four charges contained in an indictment which alleged in count 1 that between 1 January, 1987 and 31 December of that year at Wagga Wagga he did assault a female, ACS, and at the time of that assault did commit an act of indecency upon her contrary to the provisions of S 61E of the Crimes Act, 1900.
2 Counts 2 and 3 allege that between 1 September, 1989 and 31 October of that year at Newcastle he did assault ACS and at the time of that assault, did commit an act of indecency upon her, she then being under the age of 16 years and under the authority of the appellant in contravention of S 61E(1A) of the Crimes Act, 1900.
3 Count 4 alleged that between those same dates, that is to say 1 September, 1989 and 31 October 1989 at Newcastle did have sexual intercourse with ACS, a person then of the age of 10 years and under the age of 16 years and under the authority of the appellant, in contravention of S 66C(2) of the Crimes Act, 1900.
4 On 21 May, 1998, the jury returned a verdict of guilty on each count in the indictment. On 13 July, 1998 the appellant was sentenced by Judge Viney of Queen’s Counsel at the District Court at Port Macquarie. Leave is not sought to appeal against the severity of the sentences imposed.
5 The facts relating to the offences may be briefly summarised as follows. The complainant, who was born on 31 October, 1978,…

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 Regina v Smith

Details

AGLC: Regina v Smith [1999] NSWCCA 28
Case: [1999] NSWCCA 28
Decision Date: 10 March 1999

CaseChat Overview and Summary

In Regina v Smith, the defendant was convicted of indecent assault and an act of indecency against a female under 16 years of age, while under her authority. The court was also required to determine whether the sexual intercourse with a person under 16 years of age and under authority was unsafe and unsatisfactory. The appeal raised questions about the admissibility of medical evidence that was called on the voir dire but not presented before the jury, and whether this constituted "fresh" or "new" evidence on appeal.

The court examined whether the medical evidence was indeed new and if the appellant's counsel's decision to not call the evidence before the jury was binding on the appellant. The court referenced Ignjatic (1993) 68 A Crim R 333 @ 336 to clarify that the appellant is bound by the decisions made by their trial counsel, even if those decisions result in an unfavorable outcome. The court concluded that the medical evidence was not new and therefore did not constitute grounds for appeal.

The court upheld the appellant's conviction, finding that the evidence presented at trial was sufficient to support the jury's verdict. The court further found that the appellant was bound by the decision of his trial counsel not to call the medical evidence before the jury, and therefore could not rely on it as grounds for appeal. The appeal was dismissed, and the convictions were upheld.

The court did not make any further orders, as the appeal was dismissed and the convictions were upheld. The appellant's argument that the medical evidence should be considered as new evidence was rejected, and the decision of the trial court was affirmed.

Orders