Regina -v- Smith [1999] NSWCCA 28

New South Wales Court of Criminal Appeal CITATION : Regina -v- Smith [1999] NSWCCA 28 FILE NUMBER(S) : CCA 60419 of 1998 HEARING DATE(S) : 7 December; 1998 JUDGMENT DATE : 10 March 1999

PARTIES : Samuel John Darrell Smith - App Regina - Resp JUDGMENT OF : Ireland J at 1; Hulme J at 69; Barr J at 82

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/31/0445 LOWER COURT JUDICIAL OFFICER : Viney DCJ

COUNSEL : Paul Byrne, SC/K O Earl - App GIO Rowling - Resp SOLICITORS : Messrs Collins & Thompson - App S E O'Connor - Resp CATCHWORDS : Indecent assault of a female and act of indecency - under 16 years and under authority; sexual intercourse with a person of 10 yrs of age and under 16 yrs under authority - whether unsafe and unsatisfactory - whether medical evidence called on the voir dire but not called before the jury is "fresh" or "new" evidence on appeal (held not to be so). Appellant bound by decision of his trial counsel - Ignjatic (1993) 68 A Crim R 333 @ 336 applied. Crimes Act 1900. Ss 61E ACTS CITED : 61E(1A) 66C(2) CASES CITED: Ignjatic (1993) 68 A Crim R 333 @ 336 DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

60419 of 1998

IRELAND J HULME J BARR J

Wednesday, 10 March, 1999 REGINA -v- Samuel John Darrell SMITH JUDGMENT

1 IRELAND J: This is an appeal against conviction by Samuel John Darrell Smith, who pleaded not guilty to each of four charges contained in an indictment which alleged in count 1 that between 1 January, 1987 and 31 December of that year at Wagga Wagga he did assault a female, ACS, and at the time of that assault did commit an act of indecency upon her contrary to the provisions of S 61E of the Crimes Act, 1900. 2 Counts 2 and 3 allege that between 1 September, 1989 and 31 October of that year at Newcastle he did assault ACS and at the time of that assault, did commit an act of indecency upon her, she then being under the age of 16 years and under the authority of the appellant in contravention of S 61E(1A) of the Crimes Act, 1900. 3 Count 4 alleged that between those same dates, that is to say 1 September, 1989 and 31 October 1989 at Newcastle did have sexual intercourse with ACS, a person then of the age of 10 years and under the age of 16 years and under the authority of the appellant, in contravention of S 66C(2) of the Crimes Act, 1900. 4 On 21 May, 1998, the jury returned a verdict of guilty on each count in the indictment. On 13 July, 1998 the appellant was sentenced by Judge Viney of Queen's Counsel at the District Court at Port Macquarie. Leave is not sought to appeal against the severity of the sentences imposed. 5 The facts relating to the offences may be briefly summarised as follows. The complainant, who was born on 31 October, 1978, was the step-daughter of the appellant's cousin and the appellant had visited the complainant's family on a number of occasions. Count 1: 6 In 1987 the complainant, who was then about 8 years of age, was living in the Wagga Wagga district with her mother and step-father. The appellant, who was visiting the parents of the complainant, took the complainant to a shop to buy some lollies. The complainant sat in the front seat and the appellant drove. After he had driven past the shops, he stopped the car, turned off the lights, took a blanket from the back seat and told the complainant that they were going to play a game. He also told her that if she saw a car or a person, she had to tell him. 7 The appellant moved partly over to the complainant's seat and with his left hand played with her hair and moved his hand down her shoulder to under her legs. He covered her with the blanket and pulled her skirt up. He then pulled her pants down and after wetting his fingers, started massaging around her vagina with his fingers. The complainant said that it was dark and this activity went on for a few hours. 8 The complainant said that a car subsequently went past and the appellant got angry because she had not alerted him. While the appellant was touching the complainant, she had asked him to stop and he said "stop what" and continued to touch her. The complainant said that she had "got really upset" and the appellant told her not to cry. The appellant then stopped and told the complainant to fix her skirt and pants and they then returned home after buying the lollies from the shop. 9 The complainant said that next morning when her parents asked her where they went for so long, she had told them that they "went visiting some relatives". She said she did not tell her parents about the incident, because the appellant had told her that if she told them, they wouldn't believe her and that "he'd come back and do it again". Count 2: 10 In September, 1989 during the school holidays, the appellant came with his family to visit the complainant's family in the Wagga Wagga district. This occurred prior to the complainant's eleventh birthday on 31 October, 1989. The complainant returned with the appellant to his home at Newcastle for holidays. The complainant said that the night she arrived at the appellant's house, she slept in his daughter Sarah's room. She had gone to bed at about 8.30 that evening. 11 At about 10.30 that night, the appellant went into the complainant's room and woke her up to ask her to watch television with him. She had gone and sat at one end of the lounge, and the appellant had sat at the other end. The appellant slowly moved towards her until he was right next to her. He was sitting on her right and with his left hand started playing with her hair. He then moved his hand down her arm and down between her legs. He put his hand on her vagina, outside her clothing. The complainant then said "stop" and ran to bed. She did not see the appellant again that night. The next day the complainant went to the beach with the appellant's family. 12 The complainant said that when she returned from the beach, the appellant took her for a drive, stopped in a carpark and told her that he was sorry for what he had done and that it would not happen again. Counts 3 and 4: 13 After returning from the drive, the complainant had a bath and went to bed around 8 o'clock that night. At about 10.30 or 11 that night, the appellant went into her room and asked her to watch TV with him. In the loungeroom the appellant had placed the cushions from the lounge on the floor, and wanted the complainant to sit down on them. The complainant said that she sat down on the cushions and every time the appellant moved closer to her, she would move away. 14 The appellant then grabbed the complainant's arm and sat her across his lap. He took her nightie off and rubbed her vagina. This activity is the basis of the third count. The appellant's wife, Mandy, walked in at that stage and saw what he was doing but didn't stop him. Mandy went back to bed. The appellant continued to take the complainant's nightie and panties off and started massaging her vagina. He then put her down on her back and the complainant said that she crossed her legs. The appellant pulled them apart and lay on top of her. The complainant said that she could hardly breathe. The appellant then used his hand to insert his penis into her vagina. The complainant said that when this occurred it hurt and she screamed "ouch" and told him to stop and leave her alone. 15 The appellant moved forwards and backwards for a while and then rolled off the complainant. When asked the length of time the appellant's penis remained inside her vagina, the complainant stated "for about half an hour, I don't know". 16 Following these events the complainant noticed blood between her legs, on her vagina and on his penis. Her stomach was also painful. She said she then grabbed her clothes and ran to the toilet. She remained in the toilet for a couple of hours and tried to wash the blood with toilet paper and water from the basin. After that she went into her bedroom and placed a chair up against the door to stop anyone from coming into her room. 17 The next morning after Mandy knocked on her door, the complainant went and had breakfast. The appellant was not in the house and the complainant went next door to avoid seeing him. She had blood on her underwear and had bad stomach pain. 18 The following day, the complainant had an accident while playing and after a short period of hospitalisation, she returned home. 19 In 1995 the complainant first complained about these incidents and made a statement to police. She said that she did not say anything to her parents about the incidents after her return from Newcastle, because she was scared of the appellant. She was scared that he would come back and do it again. 20 The complainant's mother, Mrs C, gave evidence of the occasion in 1987 when the appellant while visiting had taken the complainant for a drive in the afternoon, saying that he was going to the shops. She said that it was dark when they returned, and she had been very worried. She recalled that the appellant had told them that he had gone to visit friends. 21 Mrs C also gave evidence that the complainant had gone to stay at the appellant's house at Newcastle for two weeks during the school holidays in September, 1989. She said that she had returned home from her lunch break to discover that the complainant was going to Newcastle. She had not been consulted about this previously and she did not want her daughter to go. However, after discussion with her husband, she had consented to this course being followed. She noticed that after the complainant returned from these holidays, she had seemed "real moody, upset, she just wasn't her cheerful self". When she had asked the complainant whether anything was wrong, the complainant had replied "nothing". 22 In September, 1995 the appellant had rung and spoken to Mrs C's husband, KS. After this telephone call, they were discussing the appellant in the complainant's presence and Mrs C saw that the complainant's mood had changed completely. She became aggressive and worried and when asked what was wrong, replied "nothing". 23 The complainant's step-father also gave evidence of the occasion when the appellant had taken the complainant for a drive and returned much later than expected. He recalled the occasion that the complainant had gone to the appellant's place at Newcastle in 1989. He said that while he was at work, the appellant had come to ask him whether he could take the complainant to his place for a week. The appellant had told the step-father that the child's mother, Mrs C, had agreed to let him take the complainant. In this regard, it was open to the jury to accept the evidence of Mrs C that she had not been consulted and that in this regard, the appellant was being manipulative and disingenuous. KS gave evidence that when the complainant went away she was "much quieter"; that she "went away like a little girl as if she was smiling, happy and but for some unknown reason she wasn't - she wasn't sort of happy or chirpy, she was just sort of quiet". (T.17.20) 24 The appellant's former wife, Mandy, gave evidence of the visit by the complainant to her house in Newcastle. She said the complainant had stayed for about one and a half weeks when she was about 10 years old. During the stay she had rolled off a log and had to be taken to Wauchope Hospital. She said that the complainant had slept in her daughter, Sarah's room. Sarah had also slept in the same room. She could not recall seeing the complainant with her husband in the living room fairly late at night during that period. 25 The appellant's case may be summarised as follows. He gave evidence of visiting the complainant and her family in 1989 at Wagga, but said that he could not recall going in 1987. 26 During the 1989 visit to Wagga, he said the complainant had asked him about coming on holiday and he had said "Well, I'll see Mandy and your father." (T.38.25 - 21.5.98) 27 The appellant said that he had spoken to the step-father the night before he left to go home and had spoken to Mrs C the following day. 28 The appellant said that the complainant had stayed for about a week to ten days at his place at Newcastle and had also gone to his parents' property at Wauchope where she had an accident, which required some medical treatment. 29 He said that while the complainant had stayed with his family, she had slept in his daughter Sarah's room. Sarah had also slept in this room. He also said that there were no chairs in that room because the room was too small. 30 The appellant denied committing the offences. In cross-examination, he also denied the offences of 1987, stating that he could not remember being at the complainant's house during that period. 31 Two grounds of appeal are argued. The first is that the verdicts are unsafe and unsatisfactory and the second ground is a contention that there is evidence available to suggest there has been a miscarriage of justice. 32 In support of the unsafe and unsatisfactory ground, the following submissions are made:- 33 1. The version given by the complainant is not corroborated in any significant way. 34 2. The version given by the complainant nominates Mandy as an eye witness to an event which, if it had occurred, provided compelling support for the correctness of the complainant's version. That witness was called by the Crown. She denied, both in evidence in chief and in cross-examination, that the complainant's version was true. At the time of giving evidence, that witness had been divorced from the appellant for four years and had remarried. 35 3. There was a significant delay between the time of the events and the first complaint and there was no explanation as to why the complainant had not spoken out before, nor explanation as to why the matter was raised at the time when it was. 36 4. A number of peripheral matters relating to the complainant's version were contradicted by the evidence of the appellant and his former wife. They included (a) that both the appellant and the daughter of the appellant, Sarah, had slept in the same room which was equipped with two bunk style beds during the period the complainant stayed at Newcastle. (b) The reference by the complainant to having spent a couple of hours in the bathroom after the alleged events when she was sexually assaulted, saying that she had felt safe there because she "locked the door". The evidence given by the appellant and his former wife being that there was no lock on the bathroom where the toilet was located. (c) The complainant had given evidence of placing a chair against the door to stop anyone coming into the room after the sexual assault. She was unable to describe the chair. The appellant gave evidence that there were no chairs in the room occupied by the complainant because it was too small to have much in there and his former wife also gave evidence that there was not a chair in the room. 37 For the appellant it is also submitted that it was implausible that the complainant, without apparent reservation on her part, would accompany the appellant and his family to Newcastle if the sexual assault that had occurred in the manner in which the complainant described in 1987 had taken place. Similarly, it was submitted that it was implausible that on the night of the offences constituting counts 3 and 4, that the complainant would wish to accompany the appellant alone in a vehicle having regard to his conduct in 1987 and his conduct the night before. Thirdly, that the complainant had an opportunity to use a public phone to ring her parents after the sexual assaults were committed upon her in Newcastle. She had taken advantage of that opportunity, but did not convey to them anything untoward had occurred, or indeed that she was anxious to come home. 38 For the respondent, it is submitted that whilst the evidence of the complainant was not substantially corroborated, it was supported by the evidence of her mother Mrs C and her step-father KS, and it was open to the jury to accept that evidence. 39 The complainant explained why she did not complain about the 1987 incident saying that the appellant had told her that if she told her parents they wouldn't believe her and he would come back and do it again. (T.4.15) 40 With respect to the visit to Newcastle, the complainant, in cross-examination, explained that it was an opportunity to get to know the children of the appellant much better and that she thought she would be safe with the whole family. (T.17.50 - 20.5.98) 41 With respect to the trip in the car with the appellant, she explained that she wanted to go in the car because she wanted to see Newcastle. (T.21.22 - 20.5.98) 42 There are undoubtedly discrepancies in the evidence given by the complainant. It would be extraordinary and outside the experience of the courts if that were not so when a person the age of the complainant is called upon to recall in detail events occurring years before. The discrepancies are, however, in my view, peripheral and do not illustrate any major deficiency to which reference can be made as seriously discrediting her evidence. The explanations given by the complainant as to why she did not make complaint to her parents, and as to why she continued to associate with the appellant are, to my mind, not inappropriate for a child of 8 to 10 years of age. 43 There is support for the evidence of the complainant from her mother and her step-father as to the 1987 events and similarly, as to the complainant's manner when circumstances relating to the appellant were raised in her presence with respect to the later charges. 44 This is essentially a case of oath against oath. The jury had the benefit of hearing the witnesses and making an assessment of them and of their evidence, something which is denied to this court. 45 There was, in my view, ample evidence upon which the jury, properly directed, were able to rely in being satisfied beyond reasonable doubt of the guilt of the accused and it was open to the jury to find the appellant guilty: M -v- The Queen (1994) 181 CLR 487; and see also Jones -v- The Queen (1997) 72 ALJR 78. There is no suggestion that the directions given by the learned trial judge were in any way inadequate. 46 The unsafe and unsatisfactory ground, in my view, is not made out. 47 As to the second ground, that there was evidence available to suggest there has been a miscarriage of justice: In the course of the trial a voir dire examination was conducted of Dr Geraldine Duncan and Dr Kieran Moran. 48 Dr Duncan, a general practitioner with post graduate qualifications in obstetrics and gynaecology, gave evidence of having conducted a medical examination of the complainant on 25 October, 1995 when the complainant was aged 16 years. 49 Dr Duncan received a history of the complainant having recently reported that she had experienced digital fondling at the age of eight and penile penetration at the age of eleven years. Dr Duncan inserted a vaginal speculum to examine the internal genital area and reported on her findings. These included "fairly easy passage of the speculum". She noted that the hymen was not in tact and considered that in a 16 year old girl, the hymen was relaxed enough to allow what is normally a difficult instrument for most women, to be passed for the purposes of examination. In other words, the hymen offered no resistance to the passage of the vaginal speculum. 50 Doctor Duncan concluded "the fact that she'd told me she had had penile penetration five years earlier and the fact that the speculum was able to be passed, without any undue difficulty, meant that her previous story - it would not have contradicted her previous story". Put another way, Dr Duncan said "If the hymen had not allowed the speculum to be inserted, then that would have not been consistent with her story of penile penetration previously." 51 In cross-examination by counsel for the appellant, Dr Duncan was asked the question "Q. Yes. You said that what you saw is consistent with her story, it's consistent - what you saw is also consistent with no previous penetration isn't it? A. Yes you could make that assumption as well." (T.30.25 - 21.5.98) 52 Dr Keiran Moran gave evidence on the voir dire on behalf of the appellant. 53 Dr Moran had not examined the complainant and furnished his report based purely upon the findings reported by Dr Duncan. 54 Dr Moran expressed the view that it would still have been possible at the age of 16 to have been able to see evidence of what he described as a "complete transection". He also expressed the view that penetration of a pre-pubertal child in circumstances of non-consensual intercourse would cause not only a tear in the hymen, but a significant tear in the surrounding tissue as well. 55 A number of submissions have been made on behalf of the appellant as to the approach which this court should adopt in dealing with "fresh" or "new" evidence as established by reference to such authorities as Gallagher -v- The Queen (1985-1986) 160 CLR 392; Mickelberg -v- The Queen (1989) 167 CLR 259; Drummond and Domican (No 2) (1990) 46 A Crim R 408. 56 Dr Keiran Moran's evidence was called on the voir dire to countervail the evidence of Dr Duncan. 57 Counsel for the appellant at the trial, has set out in her affidavit of 5 November, 1998 the tactical rationale adopted by her in presenting the defence case. 58 She has deposed to having requested an opinion from Dr Moran on the finding by Dr Duncan that "the hymen was not in tact and would suggest previous penetration". Arrangements were made for Dr Moran's attendance at the courthouse on 21 May, 1998 to confer with Dr Duncan with a view to giving evidence on the voir dire for the purpose of having Dr Duncan's evidence excluded. 59 Having conferred with Dr Moran after this conference with Dr Duncan, Ms Flannery of counsel made the application to the court for the conduct of a voir dire in relation to the admissibility of Dr Duncan's evidence. 60 The submission was made that the learned trial judge should not admit Dr Duncan's evidence in the Crown case as it was not sufficiently probative and was highly prejudicial. 61 This application was successful and the evidence of Dr Duncan in the Crown case was excluded. 62 Ms Flannery then deposed to having contemplated calling Dr Moran as a witness before the jury, but realised that if this course were to be followed, his Honour would permit the Crown to call evidence from Dr Duncan in reply. Ms Flannery in paragraph 12 of her affidavit states: "I decided against calling Dr Moran as a witness before the jury because I formed the view that the appellant would be better served if there was no medical evidence in the case against him rather than there being contested evidence". 63 It follows from the foregoing, in my view, that by no stretch of the imagination could the evidence now sought to be relied upon be regarded as fresh evidence. What took place was in the clearest and most unequivocal terms a tactical decision to keep from the jury any medical evidence thereby leaving the Crown case in a situation where no reliance could be placed on medical evidence of any nature in the Crown case. I am satisfied in this regard notwithstanding the flexibility of approach Mr Byrne, senior counsel for the appellant, has submitted flows from the passage in Green -v- The King (1939) 61 CLR 167 at 175:- "… that the principles that may be extracted from the authorities should not … be regarded as absolute or hard and fast rules" cited with approval by Gibbs CJ in Gallagher at 395. 64 The evidence is neither new nor fresh, nor can its introduction be other than an endeavour to re-run the case before this court on a tactical basis different from that adopted by learned counsel at the trial. Such a course is impermissible. The appellant is bound by the decision of his trial counsel- see Ignjatic (1993) 68 A Crim R 333 at 336. 65 It is to be noted that Mr Byrne specifically eschewed any criticism of the decision taken by trial counsel for the appellant not to call the evidence of Dr Moran with the likely consequence of Dr Duncan being called in reply. 66 In support of his contention that the medical evidence should be admitted and considered in this appeal as fresh evidence, Mr Byrne submitted that for this purpose, the expression "not available at the trial" should be construed as meaning "not available to the jury at the trial". He argued that the evidence having been adduced on the voir dire, it was not available to the jury at the trial and should be now received as fresh evidence. 67 Such a construction would render otiose the requirement to exercise due diligence, to ensure all available evidence is placed before a court at trial, and would leave open the option of electing to conduct the trial on selected evidence and the appeal on previously rejected evidence. The submission is rejected. 68 I would propose that the appeal be dismissed. IN THE COURT OF CRIMINAL APPEAL 60201 of 1997