Citation: Regina v Smith [1999] NSWCCA 28
Court: New South Wales Court of Criminal Appeal
Date: 10 March 1999
Judge(s): Ireland J, Hulme J, Barr J
Background
The appellant was convicted by a jury of four counts involving sexual offences against a female complainant who was his step-cousin's stepdaughter. The offences spanned two periods: one incident in the Wagga Wagga district in 1987, when the complainant was approximately eight years old, and a series of incidents in Newcastle in September 1989, when she was just under eleven years old. The charges included indecent assault, acts of indecency, and sexual intercourse with a person aged ten years and under sixteen years while under the appellant's authority.
The complainant did not report the offences until 1995, when she gave a statement to police. She explained her silence by saying she feared the appellant would return and repeat the conduct. The appellant was convicted on all four counts on 21 May 1998 and sentenced by Viney DCJ in the District Court at Port Macquarie. No appeal against sentence was pursued.
On appeal, the appellant challenged the convictions as unsafe and unsatisfactory. A central issue arose from medical evidence that had been called during a voir dire (a preliminary hearing before the trial judge, outside the jury's presence) but which trial counsel had elected not to place before the jury.
Legal Issues
- Whether the verdicts were unsafe and unsatisfactory on the evidence before the jury
- Whether medical evidence tendered on the voir dire but not called before the jury could be treated as "fresh" or "new" evidence on appeal
- Whether the appellant was bound by his trial counsel's decision not to call that medical evidence at trial
Decision
The Court of Criminal Appeal addressed the question of whether the medical evidence, heard only on the voir dire, could be raised as fresh evidence on appeal. The Court held that it could not. Evidence called on a voir dire but not tendered before the jury is not "fresh" or "new" evidence for the purposes of an appeal. The appellant was bound by the strategic decision made by his trial counsel not to call that evidence before the jury, consistent with the principle in Ignjatic (1993) 68 A Crim R 333.
On the question of whether the verdicts were unsafe and unsatisfactory, the Court examined the evidence as a whole, including the complainant's account and the evidence of the appellant's then-wife, Mrs Thompson. Mrs Thompson gave evidence that she had no recollection of the incident described by the complainant, in which she was said to have walked into the lounge room and witnessed the offending. The Court noted that the jury was entitled to approach her evidence with caution, given her continuing relationship with the appellant through shared parenting arrangements and the possibility she may have preferred not to recall such events.
The Court emphasised that the assessment of the complainant's credibility against that of other witnesses involved evaluating how witnesses presented during testimony, a function the Court of Criminal Appeal cannot perform itself. Applying the principles from M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 72 ALJR 78, the Court found it was open to the jury on the whole of the evidence to return guilty verdicts on all counts.
The appeal was dismissed.
Orders Made
- Appeal dismissed
Key Takeaways
- Evidence called during a voir dire but not placed before the jury does not constitute "fresh" or "new" evidence for the purposes of a criminal appeal.
- An appellant is bound by decisions made by trial counsel during the conduct of the trial, including the decision not to call particular evidence before the jury, consistent with the principle established in Ignjatic (1993) 68 A Crim R 333.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that assessing witness credibility is a function of the jury, and appellate courts give full recognition to the jury's advantage in observing and hearing witnesses as they gave their evidence.
- Sufficient evidence existed to support the guilty verdicts even where a witness offered evidence that was arguably inconsistent with the complainant's account, as the jury was entitled to assess that witness's potential partiality.
- The Court confirmed that a jury is entitled to consider a witness's ongoing personal circumstances and relationships when weighing the reliability of their evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61E, 61E(1A), 66C(2)
Cases:
- Ignjatic (1993) 68 A Crim R 333
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 72 ALJR 78