BOURNE & ANOR -v- ELLISS [1999] WASCA 96

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 96
Case No:	SJA:1033/1999	Heard:	22 JUNE 1999
Coram:	PARKER J	Delivered:	29/07/99
No of pages:	10	Judgment Part:	1 of 1
Result:	Conviction of second appellant on Charge No 31017 quashedOtherwise appeals dismissed
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Parties:	JENNIFER COLLEEN BOURNE RAYMOND ALBERT PAUL BOURNE JACQUELINE MARIE ELLISS
Catchwords:	Criminal law Assault on children Allegations denied to police Defendants electing not to give evidence Whether Magistrate had due regard to denials No misapplication of onus of proof Criminal law Assault on children Only evidence accused's account to police recorded on video Whether this account could support conviction
Legislation:	Nil
Case References:	Barker v Charley [1961] NSWR 729 Bridge v The Queen (1964) 118 CLR 600 Jack v Smail [1905] 2 CLR 684 Smith v Blandy [1825] Ry & M 257 Weissensteiner v The Queen (1993) 178 CLR 217 Benter v Carkill [1999] WASCA 48 Greaves v Aikman (1994) 74 A Crim R 370 Harling (1997) 94 A Crim R 437 May v O'Sullivan (1955) 92 CLR 654 MH v The Queen, unreported; CCA SCt of WA; Library No 970203; 5 July 1997 Middleton (1998) 100 A Crim R 244 Wace v The Queen, unreported; CCA SCt of WA; Library No 980124; 24 March 1998 Zanetti v Hill (1962) 108 CLR 433

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BOURNE & ANOR -v- ELLISS [1999] WASCA 96 CORAM : PARKER J HEARD : 22 JUNE 1999 DELIVERED : 29 JULY 1999 FILE NO/S : SJA 1033 of 1999 BETWEEN : JENNIFER COLLEEN BOURNE

First Appellant (Defendant)

RAYMOND ALBERT PAUL BOURNE

Second Appellant (Defendant)

AND

JACQUELINE MARIE ELLISS

Respondent (Complainant)

Catchwords:

Criminal law - Assault on children - Allegations denied to police - Defendants electing not to give evidence - Whether Magistrate had due regard to denials - No misapplication of onus of proof

Criminal law - Assault on children - Only evidence accused's account to police recorded on video - Whether this account could support conviction

Legislation:

Nil

Result:

Conviction of second appellant on Charge No 31017 quashed

(Page 2)

Otherwise appeals dismissed

Representation:

Counsel:

First Appellant (Defendant) : Mr M Trowell

Second Appellant (Defendant) : Mr M Trowell

Respondent (Complainant) : Ms C Thatcher

Solicitors:

First Appellant (Defendant) : David Charles Manera

Second Appellant (Defendant) : David Charles Manera

Respondent (Complainant) : State Crown Solicitor

Case(s) referred to in judgment(s):

Barker v Charley [1961] NSWR 729
Bridge v The Queen (1964) 118 CLR 600
Jack v Smail [1905] 2 CLR 684
Smith v Blandy [1825] Ry & M 257
Weissensteiner v The Queen (1993) 178 CLR 217

Case(s) also cited:

Benter v Carkill [1999] WASCA 48
Greaves v Aikman (1994) 74 A Crim R 370
Harling (1997) 94 A Crim R 437
May v O'Sullivan (1955) 92 CLR 654
MH v The Queen, unreported; CCA SCt of WA; Library No 970203; 5 July 1997
Middleton (1998) 100 A Crim R 244

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 Bourne v Elliss

Details

AGLC: Bourne v Elliss [1999] WASCA 96
Case: [1999] WASCA 96
Decision Date: 29 JULY 1999

CaseChat Overview and Summary

In the matter of Bourne v Elliss, the appellants were found guilty of various counts of assault against children, with the first appellant being found guilty of 15 counts and the second appellant of 12 counts. The appellants were convicted by a magistrate in the Children's Court of Victoria. The nature of the dispute is that the appellants were found guilty of various counts of assault against children. The appellants appealed against their convictions and sentences on several grounds. The primary legal issue was whether the magistrate had failed to give due regard to the appellants' denials of the allegations and whether there was a misapplication of the onus of proof. Another issue was whether the appellants' account to police, which was the only evidence against them, could support a conviction.

The court found that there was no misapplication of the onus of proof and that the magistrate had given due regard to the appellants' denials. The court held that the appellants' account to police, recorded on video, could support a conviction. However, the court found that there was a significant error in the summing up of the evidence by the magistrate, which may have led to the appellants' convictions. The court found that the magistrate had failed to adequately summarise the evidence in relation to one of the charges, which led to the conviction of the second appellant on Charge No 31017 being quashed. The court dismissed the rest of the appeals.

The court ordered that the conviction of the second appellant on Charge No 31017 be quashed and that the appeals be otherwise dismissed. The court found that the error in the summing up of the evidence was significant enough to warrant a quashing of the conviction on that charge, but the other convictions and sentences were upheld. The court found that the evidence against the appellants was sufficient to support their convictions on the other charges.

Orders

Orders of the court

Conviction of second appellant on Charge No 31017 quashedOtherwise appeals dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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