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Smith (a pseudonym) v The Queen

Smith (a pseudonym) v The Queen

Case [2021] ACTCA 16 2 July 2021

Statutory Construction

Criminal Law

Evidence

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Smith (a pseudonym) v The Queen
Citation:	[2021] ACTCA 16
Hearing Date:	18 February 2021
DecisionDate:	2 July 2021
Before:	Murrell CJ, Loukas-Karlsson and Charlesworth JJ
Decision:	The appeal is allowed. Pursuant to section 37O(1)(d) of the Supreme Court Act 1933 (ACT), the verdicts of guilty in respect of counts 1, 2, and 3 are set aside and in lieu thereof, a verdict of not guilty is entered on each count
Catchwords:	CRIMINAL LAW – APPEAL – Whether verdicts unreasonable having regard to the evidence – Whether trial judge failed to adhere to Liberato direction – Whether trial judge made impermissible consideration of “common knowledge” – Application of s 144 of the Evidence Act
Legislation Cited:	Crimes Act 1900 (ACT) ss 54, 60 Criminal Code 1924 (Tas) sch 1 ss 2A, 14A Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 80C Evidence Act 2011 (ACT) ss 66 144 Supreme Court Act 1933 (ACT) ss 37O, 68C
Cases Cited:	Coughlan v The Queen [2020] HCA 15; 267 CLR 654 De Silva v The Queen [2019] HCA 48; 268 CLR 57 DL v The Queen [2018] HCA 26; 266 CLR 1 Doney v the Queen (1990) 171 CLR 207 Elzahed v State of New South Wales [2018] NSWCA 103; 97 NSWLR 898 Esposito (a pseudonym) v The Queen [2020] VSCA 245 Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Fox v Percy [2003] HCA 22; 214 CLR 118 Hall v The Queen [2021] SASCFC 16 Higgins v The Queen [2020] NSWCCA 149 Liberato v The Queen (1985) 159 CLR 507 Libke v The Queen [2007] HCA 30; 230 CLR 599 M v The Queen (1994) 181 CLR 487 Pell v The Queen [2020] HCA 12; 268 CLR 123 R v Smith (a pseudonym) [2020] ACTSC 142 R v Sutton [2021] ACTSC 37 Victorian Women Lawyers v FCT [2008] FCA 983; 170 FCR 318 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460
Texts Cited:	Australian Law Reform Commission, Uniform Evidence Law (Report No 102, February 2006) Richard Eggleston, Evidence, Proof and Probability (Weidenfeld & Nicolson, 2^nd ed, 1983)
Parties:	John Smith (a pseudonym) (Appellant) The Queen (Respondent)
Representation:	Counsel B Walker SC with M Jones (Appellant) S Drumgold SC with K McCann (Respondent)
Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 22 of 2020
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 4 June 2020 Case Title: R v Smith (a pseudonym) Citation: [2020] ACTSC 142

MURRELL CJ:

Introduction

The appellant was tried by Mossop J (the trial judge), sitting as a judge alone, on charges that, on 28 April 2018, he committed three sexual offences against the complainant: one act of indecency without consent, contrary to s 60 of the Crimes…

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 Smith (a pseudonym) v The Queen

Details

AGLC: Smith (a pseudonym) v The Queen [2021] ACTCA 16
Case: [2021] ACTCA 16
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Murrell CJ, Loukas-Karlsson and Charlesworth JJ, allowed an appeal by the appellant, identified pseudonymously as Smith, against his convictions for three sexual offences. The charges, heard by Mossop J as a judge alone in the ACT Supreme Court, involved one act of indecency without consent and two offences of sexual intercourse without consent, all alleged to have occurred on 28 April 2018. The complainant, also 17 years old at the time, alleged that the appellant had engaged in these acts without her consent, despite prior consensual sexual activity between them. The appellant maintained that the intercourse was consensual.

The appeal raised two primary grounds: first, that the verdicts of guilty were unreasonable having regard to the evidence and the trial judge's alleged failure to adhere to the "Liberato direction"; and second, that a miscarriage of justice had occurred due to the trial judge's impermissible consideration of "common knowledge" material, contrary to section 144 of the *Evidence Act 2011* (ACT), without affording the appellant an opportunity to address such material. The appellant did not challenge the trial judge's directions to himself, noting that a "Liberato direction" and other relevant directions had been given, alongside an observation that he was entitled to use his common sense and individual experience in assessing the evidence.

The Court found that the verdicts were unreasonable, particularly in light of the evidence presented and the application of the "Liberato direction". The reasoning focused on the assessment of the complainant's evidence, which contained inconsistencies and concessions regarding the nature and extent of consent, particularly in the context of the appellant's repeated assertions of not hearing the complainant's refusals and his subsequent confusion and self-harm. The Court concluded that the trial judge's reliance on "common knowledge" in assessing the credibility and voluntariness of the complainant's actions, without proper evidentiary foundation or opportunity for submissions, constituted an error.

Consequently, the appeal was allowed. Pursuant to section 37O(1)(d) of the *Supreme Court Act 1933* (ACT), the verdicts of guilty in respect of counts 1, 2, and 3 were set aside, and in lieu thereof, a verdict of not guilty was entered on each count.

Orders