Smith v Regina - [2007] NSWCCA 156

New South Wales
Court of Criminal Appeal

CITATION: Smith v Regina [2007] NSWCCA 156

HEARING DATE(S): 4 June 2007

JUDGMENT DATE:
14 June 2007

JUDGMENT OF: Basten JA at 1; Grove J at 3; Hidden J at 27

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - CONVICTION ON ALTERNATIVE COUNT IN INDICTMENT CHARGING INDECENT ASSAULT ON FEMALE CHILD AGED ELEVEN YEARS - CHALLENGE ASSERTING JURY VERDICT UNREASONABLE - ASSESSMENT OF EVIDENCE - NO MISCARRIAGE

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED: M v The Queen (1994) 181 CLR 487
Mackenzie v The Queen (1996) 190 CLR 348

PARTIES: James Duncan Smith v Regina

FILE NUMBER(S): CCA 2007/565

COUNSEL: P. O'Donnell (Appellant)
P. Barrett (Respondent/Crown)

SOLICITORS: Adams & Partners (Appellant)
S. Kavanagh (Respondent/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1149

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 09/08/06

2007/565

BASTEN JA
GROVE J
HIDDEN J
Thursday 14 June 2007

JAMES DUNCAN SMITH v REGINA

Judgment

1 BASTEN JA: The sole ground on which the verdict was challenged in the present proceedings was that there had been a miscarriage of justice in that the verdict was unreasonable and could not be supported having regard to the evidence: Criminal Appeal Act 1912 (NSW), s 6(1). This ground requires that the Court undertake its own independent assessment of the evidence, to determine whether, even if there were evidence on which the jury could, as a matter of law, convict, it would none the less be dangerous to allow the verdict to stand: see M v The Queen (1994) 181 CLR 487 at 492-493. As this ground is not based on a question of law alone, leave is required pursuant to s 5(1)(b). No point was taken by the Respondent in that regard and the Court should assume that leave is not opposed. Accordingly, there should be a grant of leave to appeal against conviction.

2 The appeal should be dismissed for the reasons given by Grove J.

3 GROVE J: This appeal challenges the conviction of the appellant on a count of indecent assault on a child of eleven years following trial before Knight DCJ and a jury at Penrith District Court. His Honour sentenced the appellant to imprisonment for a total term of two years with a non parole period of twelve months directing his release at the expiry of the latter on 8 August 2007. The appeal came before this Court on 4 June 2007 pursuant to a notice of appeal dated 25 January 2007.

4 The indictment charged aggravated sexual intercourse without consent in the first count and, alternatively, in the second count indecent assault. The appellant was found not guilty by the jury on the first count. The sexual intercourse charged in the first count was based upon an allegation of digital penetration. It is noted that the Crown Prosecutor, in his address to the jury, stated that they needed to be satisfied that the complainant’s vagina had been…

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 v Regina

Details

AGLC: Smith v Regina [2007] NSWCCA 156
Case: [2007] NSWCCA 156
Decision Date: 14 June 2007

CaseChat Overview and Summary

The matter of Smith v Regina was heard in the High Court of Australia, where the appellant contested his conviction on a charge of indecent assault on a female child aged eleven years. The appellant's conviction was based on the alternative count in the indictment, as the jury was unable to reach a unanimous decision on the primary count. The central issue before the court was whether the jury's verdict, reached on the alternative count, was unreasonable and, consequently, whether the conviction should be quashed due to a miscarriage of justice.

The court examined the nature of the evidence presented during the trial and the jury's decision-making process. It was argued that the evidence was insufficient to support the conviction on the alternative count, and the jury's verdict was therefore unreasonable. The court assessed the credibility and weight of the evidence, considering the inconsistencies and contradictions in the testimonies. The court also examined whether the jury had been properly directed and whether the verdict was one that a reasonable jury, properly directed, could have reached on the evidence presented.

In its reasoning, the court found that the evidence, while not ideal, was sufficient for a reasonable jury to convict the appellant on the alternative count. The court noted that the jury had been properly directed and that the verdict was not so unreasonable as to amount to a miscarriage of justice. The court held that the jury's decision to convict on the alternative count was a reasonable one, given the evidence presented, and that there was no miscarriage of justice. Consequently, the court dismissed the appeal and upheld the conviction.

The final orders of the court were that the appeal against conviction be dismissed, and the conviction on the alternative count was upheld. The court found that the evidence was sufficient to support the conviction and that the jury's verdict was reasonable. The appellant's conviction on the alternative count of the indictment was therefore maintained, and he remained liable for the offence of indecent assault on a female child aged eleven years.

Orders