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William Albert Smith v The Queen

William Albert Smith v The Queen

Case [2015] VSCA 256 17 September 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0003

WILLIAM ALBERT SMITH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, PRIEST and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 August 2015
DATE OF JUDGMENT:	17 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 256
JUDGMENT APPEALED FROM:	DPP v Smith (Unreported, County Court of Victoria, Judge Montgomery, 21 July 2014 (date of conviction), 24 July 2014 (date of sentence))

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Sexual offending against two children – Whether a substantial miscarriage of justice occurred as a result of the way the accused’s character developed at trial – Reference in opening address to irrelevant facts – Defence counsel inadvertently adduced potentially prejudicial evidence – Failure of defence counsel to object to potentially objectionable opinion evidence – Failure of defence counsel to call good character evidence – Whether defence counsel’s conduct was explicable as a rational forensic decision – TKWJ v The Queen (2002) 212 CLR 124 considered – All complaints explicable forensic decisions in the context of the trial – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann	Melinda Walker
For the Respondent	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA:

Introduction

The applicant stood trial in the County Court at Ballarat on 25 charges of sexual offending. He was convicted of 12 offences of indecent assault (charges 5, 7, 9, 10, 12, 15, 17, 19, 20, 21, 22 and 23)[1] and four offences of gross indecency in the presence of a child under 16 (charges 11, 14, 16 and 18).[2]
[1]Contrary to s 44(1) of the Crimes Act 1958.
[2]Contrary to s 50(1) of the Crimes Act 1958.

During the course of the trial, the judge directed that not guilty verdicts be entered on charges 1, 2, 3, 4, 6, 8, 13 and 24 and ordered a permanent stay on charge 25.

After a plea hearing, the applicant was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years.

The applicant now seeks leave to appeal against conviction only. He relies on a single ground which asserts that a substantial miscarriage of justice has occurred as a result of the way in which the issue of the applicant’s character developed in the trial.

It is submitted that a series of matters arose in the trial which unfairly raised issues of the applicant’s bad character and that, in turn, the applicant’s counsel failed to call good character evidence at the trial when he could and should have.

Ultimately, it is submitted that this resulted in a miscarriage of justice because ‘too many things went wrong’. It is not submitted that any of the matters raised individually warrant the success of the appeal. Rather it is submitted that the cumulative effect of the matters relied on gave rise to a substantial miscarriage of justice.

In putting the case this…

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 William Albert Smith v The Queen

Details

AGLC: William Albert Smith v The Queen [2015] VSCA 256
Case: [2015] VSCA 256
Decision Date: 17 September 2015

CaseChat Overview and Summary

William Albert Smith, the appellant, sought leave to appeal against his conviction for sexually offending against two children. The appeal was heard by the High Court of Australia. The central issue before the court was whether a substantial miscarriage of justice occurred due to the manner in which the appellant's character was developed during the trial. Several factors were considered, including references in the opening address to irrelevant facts, the inadvertent presentation of potentially prejudicial evidence by the defence counsel, the failure to object to objectionable opinion evidence, and the absence of good character evidence from the defence.

The court examined whether the conduct of the defence counsel could be considered explicable as a rational forensic decision, considering the circumstances of the trial. The court referenced TKWJ v The Queen, a significant decision on the standard of competence required of defence counsel. After thorough consideration, the court found that all the complaints regarding the defence counsel's conduct were explicable as rational decisions within the context of the trial. Consequently, the court concluded that no substantial miscarriage of justice had occurred, and the application for leave to appeal was refused.

Orders