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Brockie v The Queen

Brockie v The Queen

Case [2019] NSWCCA 120 17 June 2019

Appeal

Criminal Liability

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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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 refused
Legislation 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 144
Cases Cited: ARS v R [2011] NSWCCA 266
Lyndon v R [2014] NSWCCA 112
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Texts 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:
Mr N Steel (Applicant)
Mr G Newton (Crown)
Solicitors:
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…

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 Brockie v The Queen

Details

AGLC: Brockie v The Queen [2019] NSWCCA 120
Case: [2019] NSWCCA 120
Decision Date: 17 June 2019

CaseChat Overview and Summary

In the case of Brockie v The Queen, the appellant, Mr Brockie, appealed against his conviction and sentence for several criminal offences. The primary issue before the court was whether there was an error of fact in the prosecutor's handling of the complainant's evidence due to an intellectual disability, and whether the trial judge erred in accepting the complainant's lower intellectual capacity without technical medical evidence. Additionally, the court considered whether there was an error of fact or law in the trial judge's consideration of the complainant's cognitive impairment during sentencing.

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