Smith v Regina

Court of Criminal Appeal (NSW)|2007-06-04|Before: Basten JA, Grove J, Hidden J

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

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

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

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

IN THE COURT OF CRIMINAL APPEAL 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 penetrated in order to sustain the first count. His Honour's charge to the jury was to similar effect in relation to that element of proof. The offence is complete upon proof of penetration to any degree of female genitalia and the direction was erroneous but obviously operated to the advantage of the appellant. It was recognized that therein lay a plausible explanation for the verdict on the first count and it was not contended that this verdict was inconsistent with the verdict of guilty on the second count: Mackenzie v The Queen (1996) 190 CLR 348. 5 The appellant relies upon a single ground of appeal asserting that the verdict amounted to a miscarriage of justice in that it was unreasonable and could not be supported having regard to the evidence. The attention to evidence and the approach to determination which this Court must take when such a ground is advanced does not require recapitulation: see M v The Queen (1994) 181 CLR 487. 6 The Crown case was critically dependent upon the testimony of the complainant. She was aged fourteen by the time the trial took place in May 2006. Her evidence in chief was given by the playing of two video recorded interviews with police made on 29 December 2003 and 25 July 2005 respectively. 7 She had been a friend of the daughter of the appellant. On a weekend in October 2003 she slept over at his house in the lounge room. On the second night of her stay, she said that the appellant came into the room where she was sleeping, pulled down her pants and touched her. She said that she was half asleep and frightened but he just left and on the following morning said to her that she would be in trouble if she told her parents or anyone else about what had happened. 8 There were a number of matters including incidents of the weekend which were canvassed as reference occurrences. The complainant noted her own father's birthday as 12 October, which in that year was on a Sunday and she located the incident as having occurred on the night of Saturday 11 October. There were explorations of what had happened during her stay including visits for ice skating and to the Ripples swimming pool complex. 9 The appellant gave evidence that he entered the lounge room where the complainant was sleeping and observed that she appeared to be uncomfortable with her legs appearing twisted. He said that he stood next to her and bent down to straighten a sheet and also pulled her t-shirt down because it had ridden up some way on her body. The complainant was lying on a mattress on the floor. He agreed that at the time he gave her a pat on the "tummy" but said this was on top of the sheet. In the second police interview the complainant had described the appellant's left hand being placed on her "belly". The appellant denied that he had touched the complainant in any improper way. 10 The appellant's wife gave evidence that she came into the lounge room and saw him kneeling (as distinct from standing) beside the complainant and was apparently talking to her. In response to her enquiry as to whether everything was "okay", he nodded affirmatively. She saw nothing untoward. 11 Each of the appellant and his wife disagreed with the complainant's evidence that she had stayed at their home for two successive nights and they testified that she had stayed overnight for a single night on two occasions separated by about four weeks. The complainant's evidence was that there was an original intention to stay one night but she asked her mother's permission to stay another night so that she could participate in some activity with the Smith family, in particular going to the Ripples complex. 12 The complainant's mother's evidence was: "(the complainant) just asked me that if she could spend the night at (the appellant's daughter's) house, which I agreed to. She slept there the first night. That was fine and then the next day when I was supposed to come and pick her up she rang me again and asked me could she sleep a second night, which I agreed to as well because she's told me that she was going to Ripples the next day in the morning."

And in cross-examination: "Q. How many sleepovers do you say that your daughter had at (the appellant's daughter's) house? A. On one occasion, two nights. Q. Well if you were asked to estimate the number of sleepovers, what would you say - one or two? A. Two. Q. And you - I have to suggest to you that in fact there were in fact two separate sleepovers about four weeks apart, each for one night. What do you say about that? A. That's untrue." 13 The submissions of the appellant in support of the ground focussed upon three broad areas of contention. First, it was submitted that the acquittal on the first count meant that "the jury must have had a reasonable doubt as to the credit of the complainant so far as she claimed that there was digital penetration." It was open to the jury to reach its verdict on this count on the basis that, although they accepted her evidence as to the indecent assault, the trauma of such an incident may have had an effect upon the accuracy of her memory of the precise detail of what occurred. It is significant that they had been directed that proof beyond reasonable doubt was required of penetration of the vagina as distinct from what should have been directed that proof of penetration to any degree of genitalia including externals could complete the offence. 14 It is true that in the complainant's evidence both on police video interview and in cross-examination she spoke of "touching" her vagina and the appellant's fingers "inside". However in the earlier interview, more proximate to the event, she offered a description that he was touching "the sides of it like ….in it but the sides of it." 15 The complainant also said that she could "see" the appellant's fingers and making understandable allowance for the descriptive abilities of a young child it does not follow that the jury rejected her credit because they were not prepared to find beyond reasonable doubt that there had been the degree of penetration that they had wrongly been directed was necessary to support conviction on the first count. 16 The second area of contention was based upon an analysis of the complainant's evidence as to the sequence of events, in particular the trip to Ripples swimming complex. In the initial police interview the complainant was recorded as saying that the appellant warned her not to tell anyone about what happened at a time when the car was being packed for the excursion to Ripples. 17 That conversation, if the jury found that it occurred, would have provided an explanation for the two months' delay in complaining of the incident to her mother and would have constituted some evidence of consciousness of misconduct on the part of the appellant. 18 In testimony at the trial and when cross-examined she said that the assault occurred after that excursion and she was asked to confirm it in these terms: "Q. Is that your recollection now? A. Yes." 19 There could hardly have been any threat before the occurrence and by the time of cross-examination, two and half years later the complainant then aged fourteen would no doubt have appreciated this. The cross-examiner returned to the issue and this evidence then emerged: "Q. Well, what's your best recollection right now? Was the threat made to you before Ripples? A. I'm not sure." 20 The third area focussed upon the complainant telling her mother about what had happened on 12 December 2003. At the time that they spoke, the mother gave evidence in chief that her daughter was hysterical and could hardly speak but, as a result of what she did say, the mother rang the police. In cross-examination it was elicited that she later made a note of what her daughter had told her which was to this effect: "(M's dad) touched me. I'm sorry it took so long to tell you because I had to get it right in my mind first because I don't know if I was dreaming or not."

She agreed that she responded to this by saying: "You weren't dreaming." 21 I interpolate that this description "touched me" may well have contributed to the jury not being satisfied to the requisite standard that there had been digital penetration to the extent that they had been directed was necessary. 22 It was argued that the mother's response may have significantly influenced the eleven year old child. This argument was for jury assessment and it is recalled that the complainant raised the matter after, as she said, she got it "right" in her mind. It would be unsurprising if the jury assessed the mother's remark as words of comfort rather than influence. 23 The strength of these arguments needs to be weighed in the context of the undisputed circumstance that the appellant was in the lounge room and taking some action in the vicinity of the child bedded down on the mattress. The jury manifestly rejected the appellant's version that he was innocently adjusting the bedding and the complainant's clothing. His credibility was as much an issue for the jury as was the complainant's, although it was, of course, necessary to apply the onus of proof. No complaint is made of his Honour's directions in those regards. 24 I recognize that the evidence of the complainant revealed confusion as to the sequence of events. It is to be recalled that she was a fourteen year old girl giving evidence of what had occurred when she was eleven. Such confusion is no novelty. The observations of McHugh J in M v The Queen at p 534 (although his Honour was in dissent in the result of that appeal) are pertinent: "It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment." 25 As is requisite, I have, without the jury's advantages, considered the evidence and I am unpersuaded that it was such as to lead to a conclusion that the jury ought to have had a doubt about the guilt of the appellant on the count upon which he was convicted. 26 I propose that the appeal be dismissed. 27 HIDDEN J: I agree with Grove J.

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