R v McSmith [2002] NSWCCA 68

New South Wales Court of Criminal Appeal

CITATION : R v McSmith [2002] NSWCCA 68 FILE NUMBER(S) : CCA 60200/01 HEARING DATE(S) : 14 March 2002 JUDGMENT DATE : 14 March 2002

PARTIES : Regina (NSW) (Respondent) Steven McSmith (Appellant) JUDGMENT OF : Heydon JA at 20; Dunford J at 1; Buddin J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0220 LOWER COURT JUDICIAL Morgan DCJ OFFICER :

COUNSEL : WG Dawe QC (Crown) PR Boulten (Appellant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Appellant) CATCHWORDS : CRIMINAL LAW - sexual assault - multiple counts - amendment of particulars in relation to different counts - no amendment of indictment except as to dates - CRIMINAL LAW - evidence - admissibility of reports tendered in proceedings in Family Court Crimes Act 1900, s 61M LEGISLATION CITED : Family Law Act 1975, ss 19N, 62F, 121 Criminal Appeal Act 1912, s 5(1)(b) CASES CITED: R v Beserick (1993) 30 NSWLR 510 R v AH (1997) 98 A Crim R 71 DECISION : Appeal upheld, convictions and sentences quashed. New trial ordered on counts 1, 2 & 3.

IN THE COURT OF CRIMINAL APPEAL 60200/01

HEYDON JA DUNFORD J BUDDIN J

Thursday, 14 MARCH 2002 R v Steven McSMITH JUDGMENT 1 DUNFORD J: This is an appeal by Steven McSmith against his conviction before her Honour Judge Morgan and a jury and an application for leave to appeal against the sentences imposed on him on three counts of assault with an act of indecency in circumstances of aggravation contrary to s 61M of the Crimes Act 1900 for which he was sentenced to concurrent sentences of 18 months periodic detention with a non-parole period of 12 months. 2 He was acquitted by direction of a fourth count in similar terms. The three counts on which he was convicted concerned improper touching of the private parts of the body of the nine year old daughter of his de facto wife. The other count related to an allegation that the appellant caused her to touch his penis. For present purposes, it is not necessary to go into the facts in any further detail at this stage. 3 A number of grounds of appeal are relied upon. The first three are as follows: 1) Her Honour erred in allowing the Crown to amend counts 2 and 4. 2) Her Honour erred by directing the jury as to the evidence which constituted counts 2 and 4. 3) Her Honour erred by failing to direct the jury to acquit in relation to count 2. 4 These grounds are all related to the fact that the sequence of the complainant's evidence relating to the various counts did not come out in the order which had been particularised, and apparently not in the order contained in her statements. Accordingly, her Honour, the learned trial judge, permitted the Crown to amend the dates in three of the counts in the indictment and permitted the Crown to rely on evidence particularised as relating to count 4 as evidence relating to count 2, and vice versa. Ultimately her Honour directed a verdict of acquittal on count 4 and it is submitted that she should have directed a verdict of acquittal on count 2. In view of consideration of one of the other grounds, it is not necessary to consider these grounds any further except as to the ultimate disposal of the appeal, and I will come to this aspect later in this judgment. 5 Ground 4 was that the trial miscarried because the appellant was unable to cross-examine the complainant about the content of reports tendered in Family Court proceedings following a ruling by her Honour that s 121 of the Family Law Act 1975 operated so as to prohibit such cross-examination. I shall return to this ground later. 6 Ground 5 was as follows: Her Honour erred by admitting evidence of uncharged sexual assaults committed upon the complainant as evidence of the relationship between the complainant and the appellant. 7 After giving evidence of three indecent assaults, the complainant gave evidence about a number of other incidents which did not relate to any of the counts in the indictment. She talked of "a fourth occasion" and said that there were other occasions when similar acts occurred. There were no further details given about these other uncharged acts. There was no evidence about how many times they occurred or about where or when they occurred. There was no evidence about whether or not anyone else was present on such occasions, and no surrounding details or descriptions were given, although it did appear from the brief details that she gave that they were concurrent with, or closely concurrent to, the occasions of which she had given evidence and which ultimately became the subject of the first three counts in the indictment. 8 The evidence apparently took the parties by surprise and arose because the Crown was attempting to lead the complainant to a further incident which had been particularised where the complainant claimed the appellant caused her to touch his penis, and the Crown was endeavouring to do this without asking leading questions. 9 The appellant's counsel objected immediately following the receipt of the evidence. An extensive argument was had in the absence of the jury about the relevance of the evidence and the consequences of it having been admitted. The Crown was then allowed to continue its examination-in-chief of the complainant and evidence of the penis-touching incident was received. 10 At the conclusion of evidence-in-chief, counsel for the appellant sought an adjournment to the following day and on resumption that day, counsel for the appellant sought a discharge of the jury which was refused, and the evidence was admitted as relationship evidence: see R v Beserick (1993) 30 NSWLR 510 at 515, R v AH (1997) 98 A Crim R 71 at 77-8. Appropriate directions in relation to that evidence were given in the summing-up where her Honour said that it was admitted solely for placing the evidence of the facts in context; that the jury must not use it as showing tendency for committing such offences, and must not substitute evidence of those other acts for the evidence of the specific acts charged. Whether the evidence was appropriate to be admitted as relationship evidence, has not been debated before us. The evidence may or may not have been admissible in that regard, but in so far as it was admissible for that purpose, the directions in the summing-up were appropriate and unobjectionable. 11 However, the Crown has conceded that once this evidence had been unexpectedly introduced by the complainant, the application for the discharge of the jury should have been granted. I am by no means satisfied that this concession was properly made. Young witnesses in sexual assault cases will from time to time unexpectedly give evidence of other instances of sexual misconduct and not every such occasion will justify the discharge of the jury. Moreover, such evidence may, though unexpected - and it may from time to time arise in cross-examination - be admissible as relationship evidence, although I prefer to describe it as "background" evidence, or as her Honour did in the summing-up, as "context" evidence so as to clearly distinguish it from tendency evidence. 12 Were it not for the Crown's concession, I would need to hear further submissions before upholding this ground of appeal, but in view of such concession, I consider it appropriate to uphold the appeal on this ground, and there it becomes necessary to order a new trial. 13 Harking back to grounds 1, 2 and 3, Mr Boulten, on behalf of the appellant, has submitted that the new trial should be limited to grounds 1 and 3 and a verdict of acquittal should be entered on ground 4. What happened at the trial was that that there were four counts in identical terms. Particulars had been given of the allegations to be made in respect of each count. When the complainant gave her evidence she placed the events in a different time sequence to that which had been particularised, and in particular gave evidence of the penis-touching incident as being the last of the matters. Accordingly her Honour allowed the date in three of the counts to be amended and directed that the penis-touching incident allegation related to the fourth count and the further touching incident be related to the second count. 14 Ultimately because the facts relating to the penis-touching incident did not satisfy the essential ingredients of a charge under s 61M, her Honour directed a verdict of acquittal on the fourth count. Mr Boulten has submitted that permitting the Crown to substitute the particulars for a different count was an error of law and that the verdict of acquittal should have been on the second count, and that therefore the accused should have the benefit of the verdict of not guilty which he already has on the fourth count, and that this Court should direct a verdict of acquittal on the second count. 15 There was no error of law on her Honour's part in permitting the Crown to treat the matter the way it did. Apart from the change in date - and the dates were not material to the ingredients of any of the offences - the counts were all in the same form, and after her Honour permitted the switching of the particulars, the counts still remained in the same form as before. What occurred, in my view, amounted to no more than an amendment of the particulars. There was no amendment to any count and the appellant was not prejudiced in any way. The ruling was given quite early in the trial and the appellant knew which counts he was answering in relation to which set of particulars. For these reasons, I am satisfied that there should be a new trial on counts 1, 2 and 3. 16 I return now to ground 4 relating to whether defence counsel should have been permitted to cross-examine the complainant about the content of reports tendered in the Family Court proceedings, and in respect of this I note that her Honour, the trial judge, gave a certificate pursuant to s 5(1)(b) of the Criminal Appeal Act 1912. With an order for a new trial, the issue, in one sense, becomes academic but is likely to arise again in the new trial, and it therefore appears desirable to say something about it. 17 We were referred to the provisions of s 121(9) of the Family Law Act 1975 and cases decided under that subsection. However, it appears from the limited material available to us that the material on which defence counsel sought to cross-examine may have been notes of conferences held pursuant to s 62F of that Act, in which case the provisions of ss (8) of that section would need to be considered, or alternatively s 19N may be relevant. Having drawn the parties' attention to these provisions, I consider this Court should not give a final ruling on the issue which is now immaterial to the disposal of this appeal. 18 There was another ground of appeal relating to the failure of appellant's counsel to lead evidence relating to proof that the appellant was a person of good character in a particular respect, namely that he did not engage in inappropriate sexual activity with children, but in view of what I have said, it is not necessary to consider this ground further. 19 I accordingly propose that the appeal be upheld, the convictions and sentences quashed, and I would order a new trial on each of counts 1, 2 and 3. 20 HEYDON JA: I agree 21 BUDDIN J: I also agree. 22 HEYDON JA: The order is as proposed by Dunford J. The Court continues bail on the current conditions.