Phillips (a pseudonym) v Burton

[2024] ACTSC 127

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Phillips (a pseudonym) v Burton

Citation: 

[2024] ACTSC 127

Hearing Date: 

26 March 2024

Decision Date: 

30 April 2024

Before:

Berman AJ

Decision: 

See [89]

Catchwords: 

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court –appeal against conviction – whether finding that the offence was proved was unreasonable – whether Chief Magistrate erred in failing to properly apply Liberato direction – consideration of whether onus of proof was reversed – whether Chief Magistrate engaged in inappropriate tendency reasoning – each ground not established – appeal dismissed

Legislation Cited: 

Crimes Act 1900 (ACT) s 61
Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111
Magistrates Court Act 1930 (ACT) s 214

Cases Cited: 

Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27
AS v R [2022] NSWCCA 291

Inglis v Adamson [2024] ACTSC 4
Liberato v The Queen (1985) 159 CLR 507
Maughan v R [2020] NSWCCA 51
Tiriaki v R [2023] NSWCCA 73

Parties: 

Zachary Phillips (a pseudonym) ( Appellant)

Leigh Michelle Burton ( Respondent)

Representation: 

Counsel

J White SC ( Appellant)

K L McCann ( Respondent)

Solicitors

Kamy Saeedi Law ( Appellant)

Director of Public Prosecutions (Respondent)

File Number:

SCA 50 of 2023

Decision Under Appeal:

BERMAN AJ:

Court/Tribunal:           ACT Magistrates Court

Before:   Chief Magistrate Walker

Date of Decision:       15 August 2023

Case Title:                 The Police v Zachary Phillips

Court File Number:     CAN 8933 of 2022

Introduction

1. On 15 August 2023, the appellant, who I will refer to by the pseudonym “Zachary Phillips”, was found guilty by the Chief Magistrate of an offence of committing an act of indecency on a person under 16 years of age, contrary to s 61(3) of the Crimes Act 1900 (ACT). He appeals against that conviction.

2. The evidence before the Chief Magistrate was summarised by the respondent to the appeal in an annexure to their Summary of Argument, filed 25 March 2024. This was based on the summary of the evidence to be found in the Chief Magistrate’s judgment. There was no criticism of that summary by the appellant. Accordingly, that summary is relied on in this judgment.

Background

1. Briefly, the complainant, who I will refer to as “Alisha Edwards”, was a friend of one of the appellant’s daughters. The friend’s parents had separated, and she spent 50 percent of the time living with her mother and 50 percent of the time living with her father. On the evening of 27 November 2021, Miss Edwards went to a sleepover at the appellant’s home. The appellant went out to a party, leaving the children in the care of a babysitter. With the agreement of the appellant, the babysitter left before the appellant returned home. None of this evidence was disputed.

2. However, what occurred after the appellant arrived home was disputed.

3. Miss Edwards gave evidence that she and the appellant’s daughter went to bed on a double mattress on the lounge room floor. The appellant’s daughter was asleep when the appellant returned. Miss Edwards gave evidence…