JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2020
DATE OF JUDGMENT:	21 February 2020
CASE MAY BE CITED AS:	Bookless v Smith
MEDIUM NEUTRAL CITATION:	[2020] VSC 56

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ADMINISTRATIVE LAW – Appeal on a question of law from the Magistrates’ Court – Appeal by person convicted of sexual assaults – Identification evidence – Evidence of appellant’s good character – Adequacy of magistrate’s reasons – Whether open to find charges proven – Appeal allowed – Charges remitted for rehearing before another magistrate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Lavery and Ms N Karapanagiotidis	David Gibbs & Associates
For the Respondent	Mr B Sonnett	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

On 1 August 2019, in the Magistrates’ Court at Melbourne, Magistrate Livingstone found proven against the appellant — a 69 year old retired school teacher of previously unblemished character — first, a charge of sexual assault of a child under the age of 16 years,[1] and, secondly, a charge of sexual assault.[2] The next day, 2 August 2019, the magistrate convicted the appellant, and sentenced him to a conditioned community correction order of two years’ duration. Each charge related to the appellant’s alleged sexual touching of two boys, ‘JT’ (aged 14) and ‘JG’ (aged 16), at a lookout platform at Point Leo near midnight on 31 December 2017.
[1]Crimes Act 1958, s 49D(1).
[2]Crimes Act 1958, s 40(1).

Pursuant to s 272 of the Criminal Procedure Act 2009, the appellant appealed to this Court on a question of law against the final orders of the Magistrates’ Court. The appellant’s two grounds contend that the magistrate erred in law:

1. … in finding that the Appellant had been identified as the same person who had touched the complainants near midnight on 31 December 2017/1 January 2018.
2. … in that she failed to give any reasons which would enable the Appellant to understand how it was that the Magistrate satisfied herself that he was the same person who had touched the complainants near midnight on 31 December 2107/1 January 2018.

For the reasons that follow, I consider that ground 2 has been made out. Accordingly, I will set aside the orders of the Magistrates’ Court made 2 August 2019, and remit the charges for hearing before another magistrate.

I would not, however, uphold the first ground. As will appear, the quality of the evidence available to found the prosecution case is dubious in a number of respects. I am unable to say, however, that — had she properly considered and analysed the available evidence — the magistrate could not have found the two charges against the appellant proven.

Summary of the evidence

Over four sitting days in the Magistrates’ Court, twenty witnesses gave evidence in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bookless v Smith

Details

AGLC: Bookless v Smith [2020] VSC 56
Case: [2020] VSC 56
Decision Date: 21 February 2020

CaseChat Overview and Summary

In the matter of Bookless v Smith, the appellant sought to appeal against his conviction in the Magistrates’ Court of sexual assaults against the respondent. The appeal to the higher court was on a question of law, focusing on the adequacy of the reasons provided by the magistrate for finding the charges proven. The appellant argued that the magistrate did not properly consider his evidence of good character and identification evidence, and therefore the conviction was not supported by the law.

The central legal issue for the court to decide was whether the magistrate’s reasons were sufficient and whether the court could be satisfied that the charges were proven beyond reasonable doubt. The appellant contended that the magistrate’s failure to consider certain evidence rendered the decision unreasonable. Additionally, the court had to assess whether the magistrate's approach to the evidence was flawed in a way that affected the outcome of the case.

The court held that the magistrate’s reasons did not adequately address the critical aspects of the evidence, particularly concerning the appellant's character and identification evidence. The court found that the magistrate did not sufficiently consider the implications of the appellant's good character, which was a material factor in the assessment of the case. As a result, the court concluded that the decision was not legally sound and that it was not open to the magistrate to find the charges proven based on the provided reasons. Consequently, the appeal was allowed, and the charges were remitted for rehearing before another magistrate.

Orders