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Pellegrino v Harman

Pellegrino v Harman

Case [2016] ACTSC 366 13 December 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pellegrino v Harman
Citation:	[2016] ACTSC 366
Hearing Date:	27 July 2016
DecisionDate:	13 December 2016
Before:	Refshauge J
Decision:	1. The appeal be upheld in part. 2. The convictions entered on 29 September 2015 for the following charges be confirmed: (i) using a carriage service on 4 June 2014 in a way that reasonable people would in all the circumstances regard as being menacing (CC2014/10356); and (ii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3604); 3. The convictions entered on 29 September 2015 for the following charges be set aside: (i) between 30 April 2013 and 1 June 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3601); (ii) between 31 May 2013 and 1 July 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3602); (iii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3603); (iv) between 21 January 2014 and 4 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3605); (v) between 30 November 2013 and 13 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3606); and (vi) between 1 January 2014 and 31 January 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3607). 4. The proceedings in respect of the charges set out in order 3 be remitted to the ACT Magistrates Court for re-trial before a different Magistrate.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal against conviction entered in the Magistrates Court – findings of guilt unreasonable having regard to all of the evidence – the learned Magistrate made findings of fact not available on the evidence – using a carriage service to menace – committing an act of indecency – elements of the offence – application of the wrong test of culpability – credibility of witness – appeal upheld in part – re-trial
Legislation Cited:	Crimes Act 1900 (ACT), ss 60, 60(1) Crimes Act 1914 (Cth), s 85ZE Criminal Code Act 1995 (Cth), ss 474.17, 474.17(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 37, 43A, 43A(4), 43A(5), 43A(6), 71, 72, Pt 3 Magistrates Court Act 1930 (ACT), ss 207, 208(1)(b), 208(1)(e) Criminal Code 2002 (ACT), s 16
Cases Cited:	Anderson [2001] NSWCCA 488; 127 A Crim R 116 Barlow v Wiseman [2014] ACTSC 166 Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320 Crowther v Sala [2007] QCA 133; [2008] 1 Qd R 127 DF v The Queen [2011] ACTCA…

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 Pellegrino v Harman

Details

AGLC: Pellegrino v Harman [2016] ACTSC 366
Case: [2016] ACTSC 366
Decision Date: 13 December 2016

CaseChat Overview and Summary

Pellegrino appealed against his conviction by the Magistrates Court, challenging the findings of guilt on several counts. The nature of the dispute involved allegations of using a carriage service in a menacing manner and committing acts of indecency without consent. The appeal was heard in the ACT Supreme Court. The legal issues focused on the sufficiency of the evidence to support the findings of guilt and the application of the correct test of culpability by the Magistrate.

The court examined the evidence and the Magistrate's findings, concluding that some of the findings of guilt were unreasonable given the evidence presented. The court found that the Magistrate had applied the wrong test of culpability and had made findings of fact not supported by the evidence. The court also considered the credibility of the witness and concluded that some of the convictions were not supported by the evidence. As a result, the appeal was upheld in part.

The court confirmed the convictions for using a carriage service in a menacing manner and for committing an act of indecency without consent on one occasion, but set aside the convictions for other acts of indecency without consent. The court ordered that the proceedings for the set aside charges be remitted to the Magistrates Court for re-trial before a different Magistrate. This decision highlights the importance of correctly applying legal tests and ensuring that findings of guilt are supported by the evidence.

Orders

Orders of the court

1. The appeal be upheld in part.

2. The convictions entered on 29 September 2015 for the following charges be confirmed:

(i) using a carriage service on 4 June 2014 in a way that reasonable people would in all the circumstances regard as being menacing (CC2014/10356); and

(ii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3604);

3. The convictions entered on 29 September 2015 for the following charges be set aside:

(i) between 30 April 2013 and 1 June 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3601);

(ii) between 31 May 2013 and 1 July 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3602);

(iii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3603);

(iv) between 21 January 2014 and 4 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3605);

(v) between 30 November 2013 and 13 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3606); and

(vi) between 1 January 2014 and 31 January 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3607).

4. The proceedings in respect of the charges set out in order 3 be remitted to the ACT Magistrates Court for re-trial before a different Magistrate.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Pellegrino v Harman [2016] ACTSC 366

Most Recent Citation

Stroop v Harris [2017] ACTSC 294

Cases citing this decision · 3 of 3 shown

Tahlia Fenech v Shankar Ramalingam
[2022] ACTMC 29

…Director of Public Prosecutions v Walker [2011] ACTCA 1 Mellor v Low (2000) 48 NSWLR 51 Pellegrino v Harman [2016] ACTSC 366 R v NO [2018] ACTSC 30 Sims v Drewson [2008] ACTSC 91 (“Sims”)…
Rowe v R
[2018] NZSC 55 Para 2

…photographs, but the totality of what was done”.[76] [72] R v McDonald [2013] ACTSC 122, (2013) 233 A Crim R 185. [73] Pellegrino v Harman [2016] ACTSC 366. [74]This offence is similar to s 134(3) of the Crimes Act, though without the age qualification. [75]At [53]. [76]At [66].…
Stroop v Harris
[2017] ACTSC 294 Para 1

…e Crimes Act – committing an act of indecency without consent. That provision may cover the taking of a photograph: for example Pellegrino v Harman [2016] ACTSC 366 at [32]-[34]. Section 60 contains no requirement for an invasion of privacy. No charge under that section was brought in this case.…

View all 3 citing cases →

Cases cited in this decision · 26 of 27 shown

R v AH
[2018] NSWSC 973 Para 1

…egations of acts which were criminal but which were not subject of any counts on the indictment”. They are led, Ireland J explained in R v AH (1997) 42 NSWLR 702 at 708, for generally two purposes: to put the evidence of the offences charged into a true context as part of the background against which the complainant’s…
R v O'Rafferty
[2016] ACTSC 141 Para 1

…nts of each offence. Her Honour also accepted that the case was one which is often referred to as one of “oath on oath” (see R v O’Rafferty [2016] ACTSC 141 at [18]) and that, also, her Honour noted, correctly:…
Preston v Carnall
[2015] ACTSC 325 Para 1

…The appeal is by way of re-hearing. I described the requirements for such an appeal in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303-4; [4]-[5], as follows:…
Gillard v The Queen
[2014] HCA 16 Para 1

…ACTR 1 at 13; [53]. See Gillard v The Queen [2013] ACTCA 17; 275 FLR 416 at 443; [105], though reversed by the High Court in Gillard v The Queen [2014] HCA 16; 308 ALR 190, but on other grounds without disturbing this finding. Non-advertent recklessness is sufficient a mental element for this offence.…
Aiden Barlow v Joel Wiseman
[2014] ACTSC 166 Para 1

…Magistrate who saw and heard the complainant. See, for example, Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320 at 324; [12] and Barlow v Wiseman [2014] ACTSC 166 at [3].…
The Queen v Daniel McDonald and Dylan Deblaquiere
[2013] ACTSC 122 Para 1

…nceded that the taking of the photograph could be indecent. There can be no doubt about that: R v DM at [225]-[228]. As I pointed out in R v McDonald [2013] ACTSC 122; 233 A Crim R 185 at 196; [53], the circumstances may be relevant. Here, it seems to me that the act of taking a photograph of the complainant partia…
Gillard v The Queen
[2013] ACTCA 17 Para 1

…45 at 453-4 and approved, it appears, in Director of Public Prosecutions v Walker [2011] ACTCA 1; 176 ACTR 1 at 13; [53]. See Gillard v The Queen [2013] ACTCA 17; 275 FLR 416 at 443; [105], though reversed by the High Court in Gillard v The Queen [2014] HCA 16; 308 ALR 190, but on other grounds without disturbing…
Douglass v The Queen
[2012] HCA 34 Para 1

…Murray v The Queen [2002] HCA 26; 211 CLR 193 at 201-2; [23] (per Gaudron J), 212-3; [57] (per Gummow and Hayne JJ). Indeed, in Douglass v The Queen [2012] HCA 34; 290 ALR 699 at 702-3; [12], expressly rejected the proposition that, when a finding turns on credibility, it is enough for a judge to state that he…
Connelly v Allan
[2011] ACTSC 170 Para 1

…I must give due weight to the advantage of the learned Magistrate who saw and heard the complainant. See, for example, Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320 at 324; [12] and Barlow v Wiseman [2014] ACTSC 166 at [3].…
DF v The Queen
[2011] ACTCA 11 Para 1

…can usefully be guided by the approach to the transcript, when demeanour cannot, of course, be assessed, as explained by Teague AJ in DF v The Queen [2011] ACTCA 11 at [45]. Even then, I am not satisfied that a court applying the proper test, after hearing Mr Pellegrino give evidence, could not property convict h…
Director of Public Prosecutions v Walker
[2011] ACTCA 1 Para 1

…to be the law in Sims v Drewson [2008] ACTSC 91; 188 A Crim R 445 at 453-4 and approved, it appears, in Director of Public Prosecutions v Walker [2011] ACTCA 1; 176 ACTR 1 at 13; [53]. See Gillard v The Queen [2013] ACTCA 17; 275 FLR 416 at 443; [105], though reversed by the High Court in Gillard v The Queen [20…
The Director of Public Prosecutions v Brian Gordet Maan
[2010] ACTCA 27 Para 1

…[62]-[63]), which had been challenged as, it was suggested, improperly “compartmentalising the evidence”: Director of Public Prosecutions v Maan [2010] ACTCA 27 at [17].…
R v DM
[2010] ACTSC 137 Para 1

…The test of indecency was not in doubt; in R v DM [2010] ACTSC 137 at [219]-[221], I considered the matter and accepted that it meant overtly sexual conduct that right-minded persons would consider to be contrary to community standards of decency.…
Peverill v Crampton
[2010] ACTSC 79 Para 24

…ce that this Court permits to be adduced: Lukatela v Birch (2008) 164 ACTR 24 at 28-9; [17]-[24]. [5]I summarised the position in Peverill v Crampton [2010] ACTSC 79 at [24] where I said: Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as foll…
R v Brian Gordet Maan
[2009] ACTSC 160 Para 1

…Her Honour then referred to the test for culpability articulated by Higgins CJ (though referring to his Honour as Higgins J) in R v Maan [2009] ACTSC 160 at [100], where his Honour said:…
Lukatela v Birch
[2008] ACTSC 99

…r this provision is a rehearing on the evidence before the Magistrate with any other evidence that this Court permits to be adduced: Lukatela v Birch (2008) 164 ACTR 24 at 28-9; [17]-[24]. [5]I summarised the position in Peverill v Crampton [2010] ACTSC 79 at [24] where I said: Such an appeal is by way of rehearing.…
Sims v Drewson
[2008] ACTSC 91 Para 1

…offences against s 60(1) of the Crimes Act until 1 July 2017: s 16 of the Criminal Code 2002 (ACT). This was held to be the law in Sims v Drewson [2008] ACTSC 91; 188 A Crim R 445 at 453-4 and approved, it appears, in Director of Public Prosecutions v Walker [2011] ACTCA 1; 176 ACTR 1 at 13; [53]. See Gillard v Th…
Tully v The Queen
[2006] HCA 56 Para 1

…There was also evidence of a number of “uncharged acts”. These are, as Callinan J described them in Tully v The Queen [2006] HCA 56; 230 CLR 234 at 264; [103], “allegations of acts which were criminal but which were not subject of any counts on the indictment”. They are led, Ireland J explained in R v AH (1997)…
Murray v The Queen
[2002] HCA 26 Para 1

…t her Honour had earlier correctly described the task is not enough. The proper test has to actually be applied, as pointed out in Murray v The Queen [2002] HCA 26; 211 CLR 193 at 201-2; [23] (per Gaudron J), 212-3; [57] (per Gummow and Hayne JJ). Indeed, in Douglass v The Queen [2012] HCA 34; 290 ALR 699 at 702…
R v Anderson
[2001] NSWCCA 488 Para 1

…p in the process of reasoning that the decision-maker in a criminal trial must follow. As Kirby J, with whom Sheller AJ and Dowd J agreed in Anderson [2001] NSWCCA 488; 127 A Crim R 116 at 121; [26], after describing the standard directions to juries in Canada as to “oath on oath” cases following W(D) [1991] SCR 742…
Director of Public Prosecutions v Kuo
[1999] NSWSC 1201 Para 1

…That approach was followed by Simpson J in Director of Public Prosecutions v Kuo [1999] NSWSC 1201; 49 NSWLR 226 at 229-30; [12], who accepted that the test is not limited to a threat of physical injury to persons but includes a threat to property.…
[1937] AC 797
[1937] AC 797

…omlinson [1985] 1 QB 706 at 709, per Lord Russell CJ; R v Boyle [1914] 3 QB 339 at 343-345, per Lord Reading CJ; Thorne v Motor Trade Association [1937] AC 797 at 817, per Lord Wright. In R v Boyle , Lord Reading CJ said (at 344-345): When there is evidence of such threat as is calculated to operate upon the min…
[1968] 1 QB 670
[1968] 1 QB 670

…In R v Clear [1968] 1 QB 670, Sellers LJ explained the element of ‘menaces’ in this way (at 679): Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces ... but threats and conduct of such a nature and extent that the mind of an ordinary person of normal stabi…
[1991] SCR 742
[1991] SCR 742 Para 1

…NSWCCA 488; 127 A Crim R 116 at 121; [26], after describing the standard directions to juries in Canada as to “oath on oath” cases following W(D) [1991] SCR 742 at 757-8, explained:…
[1985] 1 QB 706
[1985] 1 QB 706

…at the word ‘menace’ means a threat and should be construed liberally so as to encompass more than the threat of physical violence: R v Tomlinson [1985] 1 QB 706 at 709, per Lord Russell CJ; R v Boyle [1914] 3 QB 339 at 343-345, per Lord Reading CJ; Thorne v Motor Trade Association [1937] AC 797 at 817, per Lord W…
[1914] 3 QB 339
[1914] 3 QB 339

…rued liberally so as to encompass more than the threat of physical violence: R v Tomlinson [1985] 1 QB 706 at 709, per Lord Russell CJ; R v Boyle [1914] 3 QB 339 at 343-345, per Lord Reading CJ; Thorne v Motor Trade Association [1937] AC 797 at 817, per Lord Wright. In R v Boyle , Lord Reading CJ said (at 344-345)…

Legislation cited in this decision · 6

Evidence (Miscellaneous Provisions) Act 1991 (ACT)
37, 43A, 43A(4), 43A(5), 43A(6), 71, 72 8 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
207, 208(1)(b), 208(1)(e) 4 mentions (from Para 1)
Crimes Act 1900 (ACT)
60, 60(1) 3 mentions (from Para 1)
Criminal Code Act 1995 (Cth)
2 mentions (from Para 1)
Crimes Act 1914 (Cth)
85ZE 1 mention
Telecommunications Act 1997 (Cth)
1 mention