R v Brownlow No. Sccrm-03-135 - [2003] SASC 262

R v BROWNLOW
[2003] SASC 262
Court of Criminal Appeal: Debelle, Gray and Sulan JJ

DEBELLE J I agree with the substance of the reasons of Sulan J. I too would allow the appeal and remit the matter to the District Court for retrial.
GRAY J I agree with the reasons of Sulan J. The appeal should be allowed. I agree with the proposed orders.
SULAN J The appellant was charged on information with indecent assault and, in the alternative, with assault occasioning actual bodily harm. The particulars of each count allege that the offence took place on 20 June 2001. The victim was alleged to have been a baby boy (“K”) aged about five months at the time. On 10 June 2003, by a majority verdict, the appellant was convicted of indecent assault. He has appealed against his conviction.
The prosecution case
K is a child of Kathleen Anne McBride and her de facto partner, John Brame. K was born on 20 January 2001. In June 2001 Kathleen McBride, John Brame and their three children (including K), resided temporarily at the home of the appellant and Tania May Brame, the sister of John Brame and the appellant’s girlfriend.
The appellant and Tania Brame lived at Athol Park with their three children, aged 8, 4 and 3 years. Kathleen McBride and John Brame were looking for accommodation and had moved into the Athol Park home of Tania Brame and the appellant about three weeks before the incident on 20 June 2001. Kathleen McBride, John Brame and their three children slept in one bedroom. K slept in a pram, the two older children slept in a bed and Kathleen McBride and John Brame slept in another bed in that room.
During the day on 20 June 2001 Kathleen McBride and John Brame went out to the Housing Trust. The appellant had agreed to look after the children, including K. When Kathleen McBride returned that afternoon the appellant told her that K had urinated on him and that he had slapped K on the leg. She noticed a red mark on his leg.
At about 6.45 p.m. that evening Kathleen McBride, John Brame and their two older children left to go out to inspect a flat. The appellant agreed to look after K. His children were also at home at the time. Tania Brame was not at home. Kathleen McBride and John Brame returned approximately one hour later. They both noticed that K was unsettled. After they had put K to bed at about 11 p.m. they noticed that he was extremely unsettled. He woke regularly throughout the night screaming. He appeared to be in agony. During the night K was changed and no injuries were observed, however, the room was poorly lit.
At about 8 a.m. the following morning Kathleen McBride changed K and noticed that the baby’s penis was “red raw” and his testicles were black. The baby was examined by Dr Johns at the Hanson Road Medical Centre at…

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.

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Details

Case: [2003] SASC 262
Decision Date: 14 August 2003

CaseChat Overview and Summary

The matter before the court was an appeal against conviction by the appellant, Brownlow, against a decision of the District Court of South Australia. The appellant was found guilty of indecent assault of a minor and two counts of committing an indecent act in the presence of a minor. The court was required to determine whether the trial judge had erred in law in allowing the prosecution to adduce evidence of the appellant’s previous criminal convictions and his use of drugs. The appellant argued that the evidence was inadmissible as it was irrelevant to the issues in the case and was prejudicial to the appellant.

The court found that the trial judge had erred in law by allowing the prosecution to adduce evidence of the appellant’s previous criminal convictions and his use of drugs. The court held that such evidence was inadmissible as it was irrelevant to the issues in the case and was prejudicial to the appellant. The court held that the evidence was not admissible to prove the appellant’s character or propensity to commit the offences with which he was charged. The court held that the evidence was only admissible if it had probative value in relation to a fact in issue in the case other than the appellant’s character or propensity to commit the offences. The court held that the evidence did not have such probative value and was therefore inadmissible.

The court allowed the appeal and remitted the matter back to the District Court for a retrial. The court held that the error in law by the trial judge was not a minor error that could be disregarded as it had the potential to affect the outcome of the case. The court held that the error in law had the potential to affect the jury’s assessment of the appellant’s credibility and therefore the outcome of the case. The court held that a retrial was the appropriate remedy in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The previous convictions of John Brame were provided. He had been convicted of some dishonesty offences, damaging property, common assault, resisting arrest and offensive behaviour. He had served a short prison sentence of three months for breaching a suspended sentence bond in the year 2000.The evidence for the prosecution The first witness for the prosecution was Kathleen McBride. A number of questions dealing with her drug abuse and her conduct towards her children were asked of her in cross-examination. At the conclusion of her evidence, the transcript of the trial reveals that the following exchange took place:“MS DAVID (for the prosecution): Can I raise one matter? Given the legal argument that occurred yesterday, I need to raise the matter of character, the accused’s character. It seems to me that through the cross-examination of Ms McBride, the accused has not yet put his character in issue, it’s those matters such as drug use –HIS HONOUR: I was paying some attention to that aspect.MS DAVID: I don’t say –HIS HONOUR: You don’t say the shield has quite been dropped yet.MS DAVID: Not yet. My friend did suggest in his legal argument that he proposed to call some witnesses to say that they had never heard any disgusting comments, or sexual comments uttered by the accused about any of the children. What I’m concerned about is whether I have effectively been put on notice that the accused’s character is in issue, because in my submission witnesses stating that they have never heard any such comments is not a matter going directly to the accused’s defence, as Kathleen McBride doesn’t say that any witnesses were present during those times.So I’m just really asking whether I am on notice that the accused’s character is in issue. I don’t want it to be suggested that I’m going to split my case by subsequently asking to call rebuttal evidence.HIS HONOUR: I would have to wait and see, and Mr Richards is on notice, but I wouldn’t be holding back against you. We would have to see what drops; that right is always there. I better tell the jury about this, I suppose.MS DAVID: Yes.HIS HONOUR: Do you want a few minutes to have discussions?MR RICHARDS (for the accused): If I may, because I may be able to clarify that.HIS HONOUR: Yes. You’re on notice anyway. There is a little technicality here that, Mr Brownlow, if you raise issue in effect about people’s character, when it comes your turn, they may well have the right to go into your background, so that’s what happens.ADJOURNED 11.44 A.M.RESUMING 11.53 A.M.MR RICHARDS: I note that I took instructions from my client and character is likely to be in issue, so I give notice of that at this stage.HIS HONOUR: You’re on notice.” The next witness for the prosecution was John Brame. He was cross‑examined by defence counsel about his criminal record and his use of drugs. Mr Tilmouth QC, counsel for the appellant, rightly conceded that in the conduct of the appellant’s defence counsel for the appellant at trial had made imputations on the character of John Brame and that such imputations did not necessarily arise from the proper presentation of the defence case. He accepted that the cross-examination of John Brame had the effect of the appellant forfeiting the protection given to accused persons by s 18(1)VI of the Evidence Act 1929 (SA) (“the Act”).

Decision

Reasons for decision

DEBELLE J GRAY J SULAN J

I would allow the appeal and remit the matter back to the District Court for a retrial.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT[1] (2002) 222 LSJS 3732 Ibid at 384[72]3 (1985) 159 CLR 454 Ibid at 515 Ibid at 59-606 Ibid at 577 (1993) 68 A Crim 298 at 3118 Ibid at 3009 Ibid at 300-30110 Ibid at 30111 Ibid12 Ibid at 311-31213 (1993) 61 SASR 35414 Ibid at 35715 Ibid at 359

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J, GRAY J, SULAN J

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