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Court of Criminal Appeal 14 June 2007

Smith v Regina

[2007] NSWCCA 156

Sexual offences
CRIMINAL LAW AND PROCEDURE ASSESSMENT OF EVIDENCE NO MISCARRIAGE

Citation: Smith v Regina [2007] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 14 June 2007
Judge(s): Basten JA, Grove J, Hidden J

Background

The appellant was convicted of indecent assault on an eleven-year-old child following a jury trial in the Penrith District Court before Knight DCJ. The indictment contained two counts: aggravated sexual intercourse without consent (the primary count) and, in the alternative, indecent assault. The jury acquitted the appellant on the first count and convicted him on the second. He was sentenced to two years' imprisonment with a non-parole period of twelve months.

The alleged offence occurred during a weekend sleepover at the appellant's home in October 2003. The complainant, a friend of the appellant's daughter, said that the appellant entered the lounge room where she was sleeping, pulled down her pants, and touched her. The appellant acknowledged entering the room but maintained he was innocently adjusting the bedding and the complainant's clothing.

The appellant appealed, arguing solely that the jury's verdict was unreasonable and could not be supported by the evidence, amounting to a miscarriage of justice.

  • Whether the jury's verdict of guilty on the indecent assault count was unreasonable or unsupported by the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether the acquittal on the first count (aggravated sexual intercourse) necessarily undermined the reliability of the complainant's evidence on the second count.
  • Whether inconsistencies and discrepancies in the complainant's accounts were sufficient to make the guilty verdict unsafe.

Decision

Grove J (with whom Basten JA and Hidden J agreed) dismissed the appeal after conducting the independent assessment of the evidence required when an unreasonable verdict ground is raised. The court applied the test from M v The Queen (1994) 181 CLR 487, which requires the appellate court to determine whether, even if there was evidence on which a jury could lawfully convict, it would nonetheless be dangerous to allow the verdict to stand.

The appellant argued that the acquittal on the first count demonstrated the jury had a reasonable doubt about the complainant's credit regarding the claim of digital penetration, and that this doubt should have infected the second count. The court rejected this reasoning. It found a plausible explanation for the acquittal: the trial judge had misdirected the jury (to the appellant's advantage) by requiring proof of penetration of the vagina, rather than the correct legal standard of penetration to any degree of the external genitalia. On this basis, the acquittal did not necessarily reflect adversely on the complainant's general credibility.

On the question of inconsistencies in the complainant's accounts, Grove J drew on observations by McHugh J in M v The Queen that honest witnesses frequently err on details, and that discrepancies in peripheral matters may carry little weight where the honesty of the witness, as opposed to the accuracy of detail, is the central issue. The complainant was fourteen at trial and describing events from when she was eleven, and any confusion about sequence was treated as unsurprising in that context.

Having reviewed the evidence independently, Grove J was unpersuaded that the jury ought to have entertained a doubt about the appellant's guilt. The jury had plainly rejected the appellant's account of innocently attending to the sleeping child, and the appellant's own credibility was also in issue before the jury. No error in the judge's directions was identified or raised.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • An unreasonable verdict ground under s 6(1) of the Criminal Appeal Act 1912 requires the appellate court to undertake its own independent assessment of the evidence, not merely ask whether the jury had a legal basis to convict.
  • A misdirection that operates entirely to an accused's advantage does not constitute a miscarriage of justice, and the acquittal it produces does not automatically undermine the complainant's general credibility on other counts.
  • Where an indictment contains alternative counts, an acquittal on the primary count does not necessarily render a conviction on the alternative count unreasonable, particularly where a clear and innocent explanation for the divergent verdicts exists.
  • Discrepancies and inconsistencies in a witness's accounts do not automatically require rejection of that evidence, particularly when the witness is a child describing events from several years earlier and the honesty of the witness is the central question.
  • Leave to appeal was required under s 5(1)(b) of the Criminal Appeal Act 1912 because the unreasonable verdict ground does not raise a question of law alone; the Court granted leave without opposition from the Crown.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Cases
- M v The Queen (1994) 181 CLR 487
- Mackenzie v The Queen (1996) 190 CLR 348