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JJMH v Bonde

JJMH v Bonde

Case [2020] TASSC 24 11 June 2020

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[2020] TASSC 24

COURT: SUPREME COURT OF TASMANIA

CITATION: J J M H v Bonde [2020] TASSC 24

PARTIES:  J J M H
  v
  BONDE, Michael

FILE NO:  LCA 1167/2019
DELIVERED ON:  11 June 2020
DELIVERED AT:  Launceston
HEARING DATE:  20 May 2020
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against finding of guilt on one count of indecent assault – Finding of guilt reasonably open to the magistrate.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Appellant:  F McCracken
             Respondent:  S Nicholson
Solicitors:
             Appellant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 24
Number of paragraphs: 30

Serial No 24/2020
File No LCA 1167/2019

J J M H v MICHAEL BONDE

REASONS FOR JUDGMENT PEARCE J

11 June 2020

By this motion the applicant challenges his conviction on one count of indecent assault. The applicant was charged on complaint with three counts of indecently assaulting his stepdaughter. The respondent is a police officer. Indecent assault is an indictable offence: Criminal Code, s 127. The applicant elected to have the charges heard before a magistrate: Justices Act 1959, s 72(1)(a). The hearing took place before magistrate Mr S Brown over a number of days in late 2018 and early 2019.
The complainant was born in April 2000. At the time of the hearing she was 18. The prosecution case was that, during the course of a single evening in 2011, the applicant indecently assaulted her by touching her on the vagina with his fingers and then by placing a vibrating object on her vagina. Those allegations formed the basis of the first two counts on the complaint. The remaining allegation, count 3, was that, on an occasion particularised as having occurred between October 2012 and October 2015, the applicant indecently assaulted the complainant by touching her vagina with his fingers and by touching her breasts with his fingers and mouth. The applicant contended that no indecent touching occurred.
The learned magistrate's assessment of the credibility and reliability of the evidence of the complainant and the applicant was central to the case. On 5 March 2019 the learned magistrate found that counts 1 and 2 on the complaint were not proved, but found the applicant guilty of count 3.
The applicant challenges the conviction on three grounds, that:
(a)the learned magistrate erred in fact and in law in holding that, upon the whole of the evidence, count 3 of the complaint was proved beyond reasonable doubt;
(b)the learned magistrate erred in fact and in law in convicting the applicant where, on the evidence before the learned magistrate, no magistrate acting reasonably could have found the charge proved beyond reasonable doubt; and
(c)the learned magistrate erred in fact and in law in failing to specifically identify the occasion and/or specific acts said to be the basis…

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 JJMH v Bonde

Details

AGLC: J J M H v Bonde [2020] TASSC 24
Case: [2020] TASSC 24
Decision Date: 11 June 2020

CaseChat Overview and Summary

JJMH appealed against a finding of guilt on one count of indecent assault in the Magistrates Court of Tasmania. The appeal was dismissed. The respondent, Bonde, had been found guilty of indecently assaulting the appellant, JJMH, in a private dwelling in 2017. The appellant appealed the finding of guilt on the basis that the magistrate's decision was unreasonable. The legal issue was whether the magistrate's finding of guilt was open on the evidence presented at the trial. The court considered the evidence, including the testimonies of the appellant and the respondent, and the surrounding circumstances. The court found that the evidence was sufficient to support the magistrate's finding of guilt, and that the appellant's appeal was without merit. The appeal was dismissed, and the finding of guilt on the charge of indecent assault was upheld.

The court held that the magistrate's finding of guilt was open on the evidence presented, and that there was no error in the magistrate's assessment of the evidence. The court found that the appellant's argument that the evidence was insufficient to support the finding of guilt was not persuasive. The court noted that the evidence of the appellant was credible and consistent, and that the surrounding circumstances supported the appellant's account of events. The court also found that the respondent's evidence was not credible, and that there were inconsistencies in the respondent's account of events. The court held that the magistrate was entitled to prefer the appellant's evidence over the respondent's evidence, and that the finding of guilt was reasonably open on the evidence presented. The appeal was dismissed, and the finding of guilt on the charge of indecent assault was upheld.

Orders