Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Brockie v R [2019] NSWCCA 120 Hearing dates: 17 April 2019 Decision date: 17 June 2019 Before: Johnson J at [1];
R A Hulme J at [2];
Wright J at [87]Decision: 1. Leave to appeal against conviction refused.
2. Leave to appeal against sentence refused.Catchwords: CRIME — appeals — appeal against conviction – whether prosecutor made error of fact by inviting jury to treat evidence of complainant differently due to intellectual disability – whether trial judge made error of fact in finding that the complainant and witnesses had cognitive impairment and directing jury that it could form own opinions about intellectual capacity – no technical medical evidence of intellectual disability – trial run on acceptance of complainant’s lower intellectual capacity – rule 4 Criminal Appeal Rules applies – leave refused
CRIME – appeals – appeal against sentence – whether error of fact – taking into account that complainant was cognitively impaired and vulnerable person – no technical medical evidence of intellectual disability – whether error of law – denial of procedural fairness in taking into account complainant’s cognitive impairment – open to judge to describe complainant as having an intellectual disability – applicant’s counsel agreed with proposed sentence – leave refusedLegislation Cited: Crimes Act 1900 (NSW), ss 61H(1A), 61HD, 61I, 61J,
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), Divs 3 & 4 of Ch 6, Pt 5, ss 143, 306M(1), 306M(2)
Evidence Act 1995 (NSW), s 144Cases Cited: ARS v R [2011] NSWCCA 266
Lyndon v R [2014] NSWCCA 112
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed (text rev) (2000)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013)Category: Principal judgment Parties: Glen John Brockie (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr N Steel (Applicant)
Mr G Newton (Crown)
Legal Aid NSW
Solicitor for Public Prosecutions
File Number(s): 2016/209555 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 2 March 2018
- Before:
- Ellis DCJ
- File Number(s):
- 2016/209555
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Glen John Brockie (the applicant) was found guilty of two offences of sexual intercourse without consent contrary to 61I of the Crimes Act 1900 (NSW). He was sentenced to 7 years imprisonment, with a 4 year non-parole period. The offences were committed against the complainant while she was showering at her friend’s house. The complainant had been diagnosed with congenital deafness, cerebral palsy and a cognitive impairment.
No technical medical evidence of the complainant’s cognitive impairment was led at trial, although she gave evidence remotely using procedures reserved for vulnerable witnesses (including witnesses with a disability) under Divs 3 & 4 of Ch 6, Pt 5 of the Criminal…
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- AGLC
- Brockie v The Queen [2019] NSWCCA 120
- Case
- [2019] NSWCCA 120
- Decision Date
CaseChat Overview and Summary
The court examined the trial judge's acceptance of the complainant's lower intellectual capacity and the prosecutor's invitation to the jury to treat the complainant's evidence differently due to this perceived disability. It was noted that there was no technical medical evidence to support the finding of an intellectual disability, and the trial was conducted on the basis of the complainant's self-reported intellectual capacity. The court held that the trial judge's acceptance of this evidence was not an error of fact, as it was open to the judge to consider the complainant's account in the absence of contrary evidence. Furthermore, the court found that the trial judge was not required to seek technical medical evidence to make such a finding, and the rule 4 Criminal Appeal Rules applied.
The court also considered the appellant's argument that the trial judge erred in taking into account the complainant's cognitive impairment during sentencing, leading to a denial of procedural fairness. The court held that it was open to the judge to describe the complainant as having an intellectual disability, and the appellant's counsel agreed with the proposed sentence. The court concluded that there was no error of fact or law in the trial judge's consideration of the complainant's cognitive impairment during sentencing. Consequently, leave to appeal was refused.
The final orders of the court were to refuse leave to appeal both the conviction and the sentence in this case. The court found that there was no error of fact or law in the trial judge's handling of the complainant's evidence or consideration of the complainant's cognitive impairment during sentencing.
Orders
Orders of the court
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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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