Smith v Regina [2007] NSWCCA 156

New South Wales Court of Criminal Appeal

CITATION: Smith v Regina [2007] NSWCCA 156

HEARING DATE(S): 4 June 2007

JUDGMENT DATE: 14 June 2007

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

DECISION: Appeal dismissed

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

LEGISLATION CITED: Criminal Appeal Act 1912

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

PARTIES: James Duncan Smith v Regina

FILE NUMBER(S): CCA 2007/565

COUNSEL: P. O'Donnell (Appellant) P. Barrett (Respondent/Crown)

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1149

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 09/08/06

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."