Smith v The State of Western Australia
[2005] WASCA 26
•8 FEBRUARY 2005
SMITH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 26
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 26 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:100/2004 | 8 FEBRUARY 2005 | |
| Coram: | MALCOLM CJ ROBERTS-SMITH JA PULLIN JA | 8/02/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RONALD VICTOR SMITH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Conviction Verdict of jury unsafe or unsatisfactory |
Legislation: | Nil |
Case References: | Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Osland v The Queen (1998) 197 CLR 316 Chidiac & Asfour v The Queen (1991) 171 CLR 432 Jarvis v The Queen (1993) 20 WAR 201 Kennedy v The Queen, unreported; SCt of WA; Library No 6116, 2 December 1985 Perkovic v The Queen, unreported; SCt of WA; Library No 5814, 22 May 1985 R v B (1996) 88 A Crim R 91 R v White [2002] WASCA 112 Salihos v The Queen (1987) 27 A Crim R 319 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 26 CORAM : MALCOLM CJ
- ROBERTS-SMITH JA
PULLIN JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MACKNAY DCJ
File No : IND 294 of 2003
Catchwords:
Criminal law - Conviction - Verdict of jury unsafe or unsatisfactory
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R I M Bannerman
Respondent : Mr D Dempster
Solicitors:
Appellant : Sicard Crisp & Bannerman
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Osland v The Queen (1998) 197 CLR 316
Case(s) also cited:
Chidiac & Asfour v The Queen (1991) 171 CLR 432
Jarvis v The Queen (1993) 20 WAR 201
Kennedy v The Queen, unreported; SCt of WA; Library No 6116, 2 December 1985
Perkovic v The Queen, unreported; SCt of WA; Library No 5814, 22 May 1985
R v B (1996) 88 A Crim R 91
R v White [2002] WASCA 112
Salihos v The Queen (1987) 27 A Crim R 319
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1 MALCOLM CJ: In my opinion this appeal against conviction should be dismissed. I reach this conclusion for the reasons stated by Pullin JA. There is nothing which I could usefully add.
2 ROBERTS-SMITH JA: I agree.
3 The gravamen of the submission put to us on this appeal was articulated by counsel for the appellant at trial at AB 269 when he said to the learned trial Judge:
"It is the defence case that if they -that is the jury - accept what we say is the logical conclusion from the DNA evidence or accept Mr Smith's version then they cannot rely upon [the complainant's] version as far as the remaining counts because she would have lied on two very material matters."
4 The substance of the grounds of appeal is that first the jury acquitted the appellant of the counts of penile sexual penetration, second they must therefore have found the complainant lied about those, and accordingly therefore they could not properly have accepted her evidence in respect of the other counts.
5 In my view the second premise is false. It ought more accurately have been expressed as that in the absence of DNA evidence of probative genetic material on the appellant's penis and clothing and the complainant's vagina in circumstances in which she had commenced menstruating, the jury were not satisfied beyond reasonable doubt there had been penile penetration. This was the way, indeed, it was suggested by the learned trial Judge the jury ought to have approached it. At AB 266 his Honour expressed it this way:
"Obviously there is a conflict between various witnesses as to what happened at the relevant time. It's for you to decide who you believe. If you do not believe the accused that doesn't mean that the prosecution has proven its case beyond reasonable doubt. You have to also consider whether you believe the prosecution witnesses and in particular [the complainant]. Even if you prefer her evidence you should not find the accused guilty unless you are satisfied beyond reasonable doubt that her evidence is true and correct when she says that each of the alleged offences happened."
6 At the bottom of that page his Honour referred to the third possibility, namely that they might not know who to believe. In that
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- situation they would be left in a reasonable doubt and would return a verdict of not guilty. All of that was in accordance with the law as explained by Gleeson CJ and Hayne and Callinan JJ in MFA v The Queen (2002) 213 CLR 606 at 617, and particularly in the middle of [34].
7 The jury, even if they were not satisfied beyond reasonable doubt there had been penile penetration, may nonetheless have been satisfied beyond reasonable doubt that whatever sexual activity did occur was not consensual. In relation to the other counts, first of all the appellant admitted the factual circumstances. He admitted, for example, the kissing of the breasts and the digital penetration of the complainant's vagina. In relation to those matters the DNA evidence supported the complainant's account of the particular acts alleged.
8 This view of the case therefore was reasonably open to the jury on the evidence and the verdicts in my view are explicable in this way.
9 At the conclusion of his Honour's summing up defence counsel specifically requested a redirection on the complainant's credibility generally if the jury were left in some doubt as to the penile penetration counts. At 270 his Honour gave a careful direction in those terms. His Honour said:
"If you consider that there is a reasonable doubt as to her credibility because of the lack of DNA evidence in respect of penile penetration as we call it then it's for you to decide whether that affects her credibility generally in terms of you have got a reasonable doubt as to the truth of her story to each and every one of the counts or whether you think it just relates to those particular allegations which are being counts 4 and 5. You need to carefully consider whether the lack of DNA is significant and whether it gives rise to a reasonable doubt as to credibility whether generally or otherwise, so don't think that the evidence of lack of DNA on those swabs and smears was relevant only to those counts, it's relevant to the whole case generally."
10 The verdicts which the jury returned must be considered in light specifically of that direction. The situation in relation to the scientific evidence was articulated clearly at the conclusion of the cross examination of Ms Furmage, the senior forensic scientist who conducted the DNA tests. At AB 166 she said that the blood on the top of the pockets one would easily expect to have come from the appellant's hands if he were putting his hands into his pockets. Blood staining on the
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- trousers was referred to. Really what all the reports told the jury was that the appellant's fingers had the complainant's blood on them, her cellular material with her DNA profile, and his DNA profile was found from the left and right breast swabs.
11 She was asked at the bottom of that page whether if Mr Smith had digitally penetrated the complainant during her menstrual cycle and had kissed her and licked her breasts but had been unable to obtain an erection to have sex with her, penile penetration, the results which were found were those results which were to be expected and, she said, they would be consistent with that.
12 There was evidence bearing on the question of consent, which was really the only issue at trial in relation to the non-penile penetration counts, because the appellant himself admitted the factual circumstances of those matters.
13 As to the issue of consent, there was in particular the video record of interview in which the appellant denied that he had the knife when he went out with the complainant. He said that he had kissed her - or rather that she had kissed him and he had tried to kiss her but that was all the sexual activity there was and that he did not touch the complainant otherwise.
14 He denied digitally penetrating her and maintained that the red substance found on his fingers was not blood and suggested it might perhaps be raspberry ice-cream topping from when he was making a milkshake at home. The learned trial Judge gave a "lies direction" at AB 262 in relation to that. It is not necessary for me to rehearse that now. Suffice to say these are some indications at least that there was other material upon which the jury could have relied in relation to the question of consent.
15 In my view the verdicts were not inconsistent and nor were they unsafe or unsatisfactory. As to that I agree with the reasons and conclusions expressed by Pullin JA.
16 PULLIN JA: The accused in this case is charged on indictment with the following offences:
"(1) On 5 April 2002 at Westfield RONALD VICTOR SMITH unlawfully and indecently assaulted [the complainant] by sucking her breasts
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- AND THAT RONALD VICTOR SMITH was armed with an offensive weapon, namely a knife.
- (2) AND FURTHER THAT on the same date and at the same place RONALD VICTOR SMITH sexually penetrated [the complainant] without her consent, by penetrating her vagina with his fingers
AND THAT RONALD VICTOR SMITH was armed with an offensive weapon, namely a knife
(3) AND FURTHER THAT on the same date and at the same place RONALD VICTOR SMITH again sexually penetrated [the complainant] without her consent, by penetrating her vagina with his fingers
AND THAT RONALD VICTOR SMITH was armed with an offensive weapon, namely a knife.
(4) AND FURTHER THAT on the same date and at the same place RONALD VICTOR SMITH again sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis
AND THAT RONALD VICTOR SMITH was armed with an offensive weapon, namely a knife.
(5) AND FURTHER THAT on the same date and at the same place RONALD VICTOR SMITH again sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis
AND THAT RONALD VICTOR SMITH was armed with an offensive weapon, namely a knife.
(6) AND FURTHER THAT on the same date and at the same place RONALD VICTOR SMITH again sexually penetrated [the complainant] without her consent, by engaging in cunnilingus
AND THAT RONALD VICTOR SMITH was armed with an offensive weapon, namely a knife.
(7) AND FURTHER THAT on the same date and at the same place RONALD VICTOR SMITH again sexually
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- penetrated [the complainant] without her consent, by penetrating her vagina with his fingers
- AND THAT RONALD VICTOR SMITH was armed with an offensive weapon, namely a knife."
17 The jury found the appellant guilty of counts 1, 2, 3 and 7 and not guilty on counts 4, 5 and 6. The appellant appeals against the convictions on the ground that the jury's verdicts were unsafe and unsatisfactory and the particulars in support of that ground are that:
"1.2.1 The DNA evidence was that there was a lack of any genetic material on the Applicant's penis and the Complainant's vagina.
1.2.2 The Complainant's evidence was that penile penetration occurred twice for a substantial period of time.
1.2.3 The jury did not accept the Complainant's evidence as to the penile penetration.
1.2.4 The jury accepted the Complainant's evidence as to digital penetration."
18 At the trial counsel for the prosecution opened the case as follows:
"… the complainant in these proceedings, was aged 16 years at the time of the offences when she was viciously assaulted sexually at knife point in the middle of the night at a deserted location by the accused Ronald Victor Smith, the man in the dock. [The complainant] was acquainted with the accused, indeed, she lived only a couple of streets away from him, and he had been at her house before they set off on this fateful night.
She was accompanying the accused to buy drugs and on the route he attacked her and sexually assaulted her and subjected her to a terrifying and frightening ordeal. …
… Now, if I could give you a synopsis of the facts? On 4 April 2002 the complainant … was at her home with her brother … and a group of acquaintances, including the accused. Her mother and some younger siblings had already gone to bed. The accused, as I said, had been in and out of the … residence
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- throughout the day and had arrived back into the house again before midnight.
Some of the people in the group were indulging in drug taking of varying degrees and different kinds of drugs. [The complainant] says she had one cone of cannabis at approximately 11.20 to 11.45 pm. The accused also smoked some cones with them. She saw the accused and her brother Alan injecting amphetamines. The accused said he had got the amphetamines from two lesbians. After she had her cone, [the complainant] says she went to bed at approximately midnight to 1 am, 5 April 2002. She was drifting off to sleep when her brother asked her to go for a walk with the accused to get some more amphetamines from the accused's two lesbian suppliers who would only sell to females.
As the accused was considered a family friend and she had been with him on previous occasions alone, [the complainant] agreed to go with the accused. She left the house of the accused on foot and en route the accused talked and spoke briefly to someone he knew. They then made their way through a dark carpark at the child care centre and were walking on grass near some Cyclone fencing behind the centre when suddenly the accused pushed her with his left arm up against the Cyclone fencing. The accused then pushed a knife up against the left side of her neck just under her jawbone, saying words along the lines, "I'm a crazy mother-fucker."
[The complainant] says she started to scream but the accused pushed the blade further into her neck, telling her to shut up and that he was not scared to stab her. He then undid the buttons on her jacket. She started to cry. He moved the knife from her neck and pushed it into her stomach and told her to shut again or he would stab her. The accused then lifted the complainant's shirt and bra up so that her breasts were exposed. He began to suck her nipples on both breasts. This is count 1 on the indictment. While he was sucking the complainant's breasts the accused undid his jeans and pulled them down with his underwear and began to masturbate.
After masturbating for a short time the accused then undid the complainant's belt and jeans and pulled them down with her underwear. He was still holding the knife against the
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- complainant's left side. He then grabbed the complainant, forced her down on all fours and inserted two fingers on his right hand into her vagina, moving them in and out. The act of the accused digitally penetrating the complainant's vagina is count 2 on the indictment. The accused was still holding the knife in the other hand. He swapped hands and inserted fingers from the other hand into the complainant's vagina. This is count 3 on the indictment.
After a while, the accused rolled the complainant onto her back and then played with his penis before penetrating her vagina with his penis. This act is count 4 on the indictment. The complainant tried to sit up but the accused pushed her back down again and again penetrated her vagina with his penis. This is count 5 on the indictment. Throughout the ordeal, the complainant says she was terrified and paralysed with fear. She began to talk to the accused in attempt to cajole and pacify him by saying that she would have sex with him if he took her home. The accused withdrew his penis from her vagina and stayed between her legs and began to masturbate himself.
Whilst the complainant was on her back the accused licked her vagina but the complainant pushed his head away. This is count 6 on the indictment, which is pleaded in technical language being one of cunnilingus. He then inserted his fingers again, this is count 7 on the indictment. The accused by this stage put the knife down on the ground. The complainant was still trying to convince him to take her home. He continued to penetrate her vagina with his fingers for about five to 10 minutes. He then stood up, threw the knife over near to the fence and tried to kiss the complainant, who had also stood up and pulled her clothes up.
The complainant says that she was scared throughout. There was no-one else in the area and she did not give consent to the accused to sexually penetrate her and deal with her in the manner that he did. The complainant says she started to walk home followed by the accused. He repeatedly told her that if she told anyone he would kill her family, that if she kept her mouth shut he would give her $20,000. He told her he had an ounce of amphetamines and $45,000. The complainant told him she did not want his money and the accused went on to make some further threats against her brother …
(Page 10)
- The complainant says they got home at about 2 am. She went into the lounge where other people were still congregated. She sat on one couch and the accused sat opposite her.
She then noticed that the accused had blood on both hands on his fingers. She realised then that she had started her period. She had some cannabis to calm herself down and then said to the others that she was going to shops to get some cigarette paper. She left with two men, Damian Merriman and Roberto and whilst in the car she told them what the accused had done to her. After fuelling the car up with petrol she drove to the Armadale police station and made a complaint. She was only 16 at the time but she drove without a licence.
[The complainant] accompanied police back to the crime scene where a knife was found amongst the debris of leaves. She was then taken to the Sexual Resource Centre where she was examined by a doctor. On genital examination the doctor noted a small abrasion in the area just behind the opening of the vagina which, in the doctor's opinion, is significant and is the result of blunt trauma to this area. Various forensic swabs were taken for examination.
The accused was still at the complainant's house when contacted by a police officer and told to wait outside the house where he should expect to be met by police. The accused did as he was told and was conveyed to the Armadale police station where he was interviewed. That interview was recorded on videotape which will be played at some stage of this trial. He was also photographed and you will see his hands which appeared to have some red markings on them.
Swabs were taken from the accused's penis and hands. Nail scrapings from the accused, his clothes and a recovered knife were all forensically tested. Swabs taken from the complainant's left and right breasts matched the accused's DNA profile. The probability of finding this DNA profile, according to the scientist, if the cellular material on the breast swabs had come from someone other than and unrelated to the accused is less that one in ten billion.
Swabs taken from the accused left and right hands indicated the presence of a mixture consistent with having come from two
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- people. If it is assumed that there are two people contributing to the mixed DNA profiles then it is at least 10 billion times more likely to find this mixed DNA profile if it came from the accused and the complainant [the complainant] than if it came from the accused and an unknown person. The DNA profile recovered from the nail scrapings indicate that the presence of a mixture consistent with having come from two people.
If it is assumed that there are two people contributing to the mixed DNA profile then it is approximately 230 million times more likely to find this mixed DNA profile if it came from the accused and the complainant … than if it came from the accused and an unknown person. Swabs taken from the accused's penis however matched only his DNA profile."
19 It is not in dispute that the complainant gave evidence that the events occurred as described by counsel for the State in her opening. The forensic evidence was also led as indicated. The appellant gave evidence in his own defence. He admitted that he penetrated the complainant's vagina with his fingers. He admitted sucking the complainant's breasts. He admitted that at the commencement of the sexual encounter he had a knife in his hand. He denied, however, that he threatened the complainant. He denied that there was any act of penile penetration and he said that all of the acts that he admitted were with the complainant's consent.
20 Two significant aspects of the evidence which strike me are the fact that the accused was armed with a knife and that he told lies about the blood on his hands when he was first interviewed by the police.
21 The appellant's grounds for submitting that the verdicts were unsafe and unsatisfactory, are those set out in the grounds of appeal. The appellant submits that the jury "did not accept the Complainant's evidence as to penile penetration or oral penetration" and that this affected the complainant's credibility to such an extent that the jury should have rejected the whole of her account about what happened and, therefore, not accepted the complainant's evidence that she did not give consent to the events that occurred and which resulted in the convictions.
22 In my opinion it cannot be concluded that the jury "did not accept the complainant's evidence" in relation to counts 4, 5 and 6. They may simply have been in doubt about whether they could convict on those counts.
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23 There were details of other alleged inconsistencies in the complainant's evidence or statements which she had made before the trial. These were relied upon by the appellant to show that the complainant was an unreliable witness. Thus, it is said that the complainant told Dr Murphy that the appellant had tried to penetrate her mouth with his penis but the complainant made no such complaint in her police statement, to any of the investigating officers, or to the jury, and the appellant was not charged with such an act.
24 A second point which is raised is that, in her evidence, the complainant said on a number of occasions that she had been awoken from her bed by her brother before going out with appellant. In the police deposition, however, no mention was ever made of having gone to bed prior to leaving the house with Mr Smith.
25 A third point is that the complainant gave evidence that her brother had said that he would stay at home rather than go with the appellant and the complainant because he was on curfew, and yet the complainant's brother denied that he said this and denied that he was on a curfew.
26 There was also a contention that forensic evidence did not support the complainant's testimony about penile penetration and supported the appellant's evidence about the events on the evening in question, but it was clear from a review of the evidence that there was little material for the forensic expert to work on. In any event, this evidence bears only indirectly on the issue of consent in relation to the counts on which the appellant was convicted.
27 On an appeal of this kind where a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: however in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for
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- reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted, or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and set aside a conviction based upon that verdict. In doing so, the Court is not substituting by a Court of Appeal a trial by jury. The ultimate question must always be whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. See M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439.
28 When there is no legal or technical inconsistency in the verdict a conviction can only be set aside where the inconsistency in the verdicts demonstrated that no reasonable jury who had applied their minds to the evidence could have arrived at two different verdicts. In such a case the Court of Criminal Appeal sets aside the conviction because it is unsafe and unsatisfactory. See Osland v The Queen (1998) 197 CLR 316.
29 In my opinion this is not a case of inconsistencies in the verdicts for the reasons which are explained in MFA v The Queen (2002) 213 CLR 606, particularly at [32] and [85].
30 In my opinion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of counts 1, 2, 3 and 7. In a violent sexual assault a victim may well have trouble accurately recalling some of the details of the attack and may be under a misapprehension about some of the events during the attack.
31 The jury hearing the complainant's evidence and the attacker's evidence was well placed to assess the evidence in order to arrive at the correct answer. It is true there were some discrepancies in the complainant's evidence and pre-trial statements but they do not lead me to the conclusion that the verdicts were convictions against the weight of evidence or that they were unsafe or unsatisfactory or that it was unreasonable or that the verdicts could not be supported having regard to the evidence or that there was any miscarriage of justice.
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32 In my opinion there is no inconsistency in the finding that the appellant was found guilty of counts 1, 2, 3 and 7 and not guilty on the other three counts. For those reasons I would dismiss the appeal.
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