BRODIE v Police - [2010] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRODIE v POLICE
[2010] SASC 173
Judgment of The Honourable Justice Kelly
11 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction – appellant convicted of indecent assault of a minor pursuant to s 56 of the Criminal Law Consolidation Act 1935 – whether conviction should be set aside on the ground that it was unsafe and unsatisfactory – whether Magistrate misinterpreted the evidence – whether Magistrate correctly understood the onus of proof.
Held: no error on the part of the Magistrate – evidence sufficient to infer beyond reasonable doubt that the appellant’s actions were voluntary and deliberate – appeal dismissed.
Criminal Law Consolidation Act 1935 s 56, referred to.
Dall v Police [2008] SASC 85, discussed.

BRODIE v POLICE
[2010] SASC 173
Magistrates Appeal: Criminal
KELLY J
Introduction

The appellant appeals a conviction for indecent assault in the Holden Hill Magistrates Court on 31 March 2010.
The appellant was charged with the indecent assault of a minor on 16 April 2009 at Clearview contrary to s 56 of the Criminal Law Consolidation Act 1935. The trial commenced on 30 November 2009 and the evidence was completed on 29 March 2010. The prosecution called evidence from the complainant and his friend Jason. A witness statement from the complainant’s mother was tendered without objection. That statement provided some evidence of a recent complaint from the complainant to his mother.
The appellant gave evidence and called a friend, Steven Edward Aspinall to give evidence on his behalf. A report from Dr Nick Antic dated 6 November 2009 was tendered. This report was tendered over objection from the prosecution.
On 31 March 2010 the learned Magistrate convicted the appellant and published reasons.
The notice of appeal filed on behalf of the appellant on 21 April 2010 contains seven grounds of appeal which can be distilled down to two essential complaints.
The first, that the Magistrate misinterpreted the evidence to such an extent that his conclusions amount to a miscarriage of justice. The second, that the verdict is unsafe and unsatisfactory and against the weight of the evidence.
Background
The evidence before the Magistrate disclosed that the complainant and his friend Jason stayed overnight at the house of the appellant, a family friend. After playing computer games and watching television with the appellant and a friend of the appellant’s, Mr Aspinall, the boys decided to go to bed at about 2.00 am or 3.00 am on the morning of 16 April 2009. The complainant slept in the appellant’s bed.
The complainant awoke at about 4.30 am due to what he described as a nudge to his groin area. He then described the appellant holding or rubbing his penis with his left hand. In answer to questions from the Magistrate the complainant clarified that the touching was under his…

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 BRODIE v Police

Details

AGLC: BRODIE v Police [2010] SASC 173
Case: [2010] SASC 173
Decision Date: 11 June 2010

CaseChat Overview and Summary

Brodie has appealed against his conviction by a Magistrate for indecent assault of a minor under s 56 of the Criminal Law Consolidation Act 1935, contending that the conviction was unsafe and unsatisfactory. The Court of Criminal Appeal had to determine whether the conviction should be set aside on the ground that it was unsafe and unsatisfactory, and whether the Magistrate misinterpreted the evidence or correctly understood the onus of proof. The evidence before the Magistrate was that the complainant and his friend stayed overnight at the house of the appellant. The complainant slept in the appellant’s bed and awoke at about 4.30 am due to the appellant holding or rubbing his penis with his left hand. The complainant texted and called his mother, who sent a taxi to collect him. The appellant’s defence was that the touching of the complainant was not a deliberate act but an episode of sleep sex. The Court of Criminal Appeal considered the evidence and concluded that the Magistrate correctly understood the onus of proof and the evidence presented. The Court found that the evidence was sufficient to support the conviction and that the Magistrate’s interpretation of the evidence was not a miscarriage of justice. The appeal was dismissed.

The Court of Criminal Appeal held that the Magistrate correctly understood the onus of proof and the evidence presented. The Court found that the evidence was sufficient to support the conviction and that the Magistrate’s interpretation of the evidence was not a miscarriage of justice. The Court held that the defence of sleep sex was not a valid defence to the charge of indecent assault and that the appellant’s lack of memory of the event did not negate his guilt. The Court found that the evidence of the complainant was credible and that the appellant’s defence was not supported by any medical evidence. The Court held that the verdict was not unsafe or unsatisfactory and that the conviction should be upheld.

Orders

Orders of the court

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Background

Background to the litigation

The first, that the Magistrate misinterpreted the evidence to such an extent that his conclusions amount to a miscarriage of justice. The second, that the verdict is unsafe and unsatisfactory and against the weight of the evidence.Background The evidence before the Magistrate disclosed that the complainant and his friend Jason stayed overnight at the house of the appellant, a family friend. After playing computer games and watching television with the appellant and a friend of the appellant’s, Mr Aspinall, the boys decided to go to bed at about 2.00 am or 3.00 am on the morning of 16 April 2009. The complainant slept in the appellant’s bed. The complainant awoke at about 4.30 am due to what he described as a nudge to his groin area. He then described the appellant holding or rubbing his penis with his left hand. In answer to questions from the Magistrate the complainant clarified that the touching was under his tracksuit pants and inside his jocks. The incident came to an end when the complainant got out of bed and went to the toilet. There he used his mobile phone to text message and call his mother. Having spoken to his mother he went back into the bedroom and told the appellant that he was feeling sick and had to go home. In response the appellant asked him if he needed a glass of water and eventually got him a glass of water from the kitchen. After he had the glass of water they both went back to bed and, according to the complainant, the appellant made the comment that he would stay on his side of the bed. After laying there for a short time he heard the appellant snoring, and after his mother sent him a text message, he got out of bed and left the house to catch the taxi that his mother had called for him. The defence of the appellant was that the touching of the complainant was not a deliberate act but an episode described by Dr Antic in his report, as “sleep sex”. According to the report of Dr Antic, the phenomenon known as sleep sex, is behaviour which is usually abrupt, immediate, impulsive and senseless without apparent motivation. Dr Antic was asked to express an opinion on whether the appellant may have experienced such an episode which could account for his actions in touching the complainant’s penis while sharing the same bed. The conclusion of Dr Antic was:Thus I think it is difficult to be definitive in the case. I think there are cases in Mr Brodie’s history that favour sleep sex phenomenon and factors that do not. I must say given the absence of reported previous episodes of unusual behaviour during sleep, my feeling is that alcohol intoxication with amnesia for the episode is the most likely outcome although I must say it is impossible for me to rule out such a sleep sex phenomenon… The appellant gave evidence to the effect that he simply could not recall the events in the bed alleged by the complainant and therefore he could not challenge them. The appellant did say that he recalled the complainant telling him that he was sick and wanted to be taken home, to which the appellant replied that if he needed, the complainant could wake him up and he would take him home. Later that morning when he got out of bed at about 7.30 am he realised that neither the complainant nor his friend were there and wondered what had happened. The appellant’s defence was that this was an episode of sleep sex about which he had no consciousness at the time or any memory thereafter.

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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