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 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.
After analysing the appellant’s evidence the Magistrate concluded that his memory was selective. He found the appellant had engaged in conscious and deliberate conduct which was only frustrated by the fact that in the course of the assault the complainant awoke and left the bed.
The Magistrate analysed the evidence of the complainant and the prosecution witness and concluded that the complainant was a witness of truth. He accepted the accuracy of his evidence about the assault and concluded that the appellant had engaged in a deliberate rubbing of the complainant’s penis in the bed.
Discussion
On the appeal counsel for the appellant submitted that there was no proper factual foundation for the Magistrate to have concluded, beyond reasonable doubt, that the appellant’s touching of the complainant was a conscious and deliberate act. He pointed to the examination in chief of the complainant who, at least initially when giving evidence, described the touching in the most general of terms. Counsel also pointed to the evidence which was uncontested concerning the appellant’s behaviour on other occasions when his housemate Mr Aspinall had conversations with him in the night which later the next day he could not remember. Counsel also made reference to the contents of the report, tendered and received by the Magistrate over objection, from Dr Antic relating to the phenomenon known as sleep sex.
I deal first with the complaint that the evidence of the complainant, although accepted to be truthful and honest, was simply far too general for any conclusion to be drawn that the appellant’s actions were in fact purposeful and deliberate. The appellant’s submissions about the complainant’s evidence do not take into account the whole of his evidence including the passage of evidence where the complainant answered questions put to him by the Magistrate. The effect of the complainant’s evidence as a whole described acts by the appellant which involved rubbing up and down of the complainant’s penis on the inside of his underpants. The complainant also gave a description of the position of the appellant’s hand at the time of those actions as “like a circle shape”.
That evidence in itself was sufficient, in my view, for the Magistrate to have concluded beyond reasonable doubt that the actions of the appellant involved deliberate and a purposeful touching of the complainant. In short, it permitted a conclusion beyond reasonable doubt that the appellant was masturbating the complainant.
There was however more. The evidence of the complainant was that after the appellant gave him a glass of water he returned to the bedroom and made the comment that he (the appellant) would stay on his side of the bed.
The appellant had no recollection of making that comment but did not deny the truthfulness of the complainant’s evidence that the comment was made.
The evidence from Mr Aspinall about the appellant’s earlier episodes of having conversations with him which he could not remember the next day was of limited weight. At best all which that evidence established was that the appellant on previous occasions had episodes of apparent sleep walking and sleep talking that he could not later recall.
The evidence of Dr Antic, the sleep physician, was also of very limited weight in light of the fact that Dr Antic was not called to give evidence and was not subjected to cross‑examination. This failure to call Dr Antic is particularly important because it appears from the contents of his report that the complainant’s version of what happened in the bedroom immediately after the alleged indecent assault was never put to Dr Antic. The comment made by the appellant after the incident to the effect that he would stay on his side of the bed from now on, was one very important matter for the expert to consider in relation to the appellant’s claim to have been entirely unconscious throughout the episode. In any event Dr Antic’s conclusion as to the likelihood of the appellant experiencing the sleep sex phenomenon during the episode of touching is at best equivocal.
The appellant placed some reliance on Dall v Police [2008] SASC 85. In that case Debelle J allowed an appeal against conviction in circumstances where the appellant had been convicted of indecently assaulting a woman on Rundle Street, Adelaide one evening at a time when the street was crowded with people. The Judge on appeal took the view in Dall that the evidence in that case did not exclude the reasonable possibility of accidental contact. In the course of his reasons Debelle J said at [15]:
The only issue on this appeal is what was the state of mind of the appellant when he touched the victim. His state of mind is necessarily a matter to be inferred from other facts that have been found. The magistrate directed himself that the prosecution had to prove that the circumstances were inconsistent with no other rational conclusion than that the contact was deliberate. He was correct to direct himself to that effect. A direction in those terms is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: Knight v The Queen at 502 per Mason CJ, Dawson and Toohey JJ.
As noted the Judge on that appeal ultimately concluded that in the particular circumstances of that case on the whole of the evidence, a reasonable possibility that the contact with the victim was accidental had not been excluded. I do not consider the facts of that case or the decision in that case to be of any particular relevance to the circumstances here.
It is evident from the Magistrate’s reasons that he properly directed himself to the essential matters about which he had to be satisfied beyond reasonable doubt before he could convict the appellant. The reasons make it plain that the Magistrate understood that the onus of proof was upon the prosecution to prove the elements of the charge and in particular, the critical issue in this case, which was whether the appellant was conscious and awake during the relevant period and whether he performed the acts on the complainant which were admitted, both voluntarily and intentionally.
The Magistrate carefully analysed the appellant’s evidence. He considered Dr Antic’s report along with the other evidence he had heard and concluded that the defence of sleep sex phenomenon had been excluded as a reasonable possibility.
Having reviewed the whole of the evidence I consider it was open to the Magistrate to conclude that any reasonable possibility that the touching of the complainant by the appellant was innocent, had been excluded. On the whole of the evidence the inference that the appellant’s touching of the complainant was conscious and intentional was overwhelming. For these reasons I am satisfied that there is no risk that a miscarriage of justice has occurred. The appeal is dismissed.