Sims v Drewson

Case [2008] ACTSC 91

SIMS v DREWSON
[2008] ACTSC 91 (25 September 2008)

CRIMINAL LAW – indecent assault – number of acts occurring simultaneously or within seconds of each other – acts considered as a whole at trial – whether elements of offence could be made out with respect to first act only

Held: circumstances indicated elements of offence may have been made out with respect to first act only – matter remitted.

CRIMINAL LAW – whether recklessness within s 60(1) of the Crimes Act 1900 (ACT) includes non-advertent recklessness

Held: non-advertent recklessness included in recklessness in s 60(1).

APPEALS – order to review – whether terms of order nisi restricted review to a case of non-advertent recklessness

Held: terms of order nisi did not restrict review to a case of non-advertent recklessness.

APPEALS – order to review – whether substantial miscarriage of justice – interpretation in context of Crown appeal – whether Crown seeking to put case on new basis – whether leads to substantial miscarriage – whether leads to exercise of general discretion to refuse relief

Held: Crown not putting case on new basis – no sufficient reason to withhold relief.

Crimes Act 1900 (ACT) s 60(1)
Crimes Act 1900 (NSW) ss 61D(2), 61L, 61R
Criminal Code 2002 (ACT) s 20
Magistrates Court Act 1930 (ACT) s 219C, s 219F

Banditt v The Queen (2005) 224 CLR 262
Fitzgerald v Kennard (1995) 38 NSWLR 184
Gardner v Caporn [2005] WASCA 153
Haskett v Police [2005] SASC 174
He Kaw Teh v The Queen (1985) 157 CLR 523
Johnson v Miller (1937) 59 CLR 467
Knight v Birch (1992) 106 ACTR 27
McNeill v The Queen (2008) 168 FCR 198
R v Chen (unreported, Supreme Court of Queensland Court of Appeal, Davies JA, Shepherdson and White JJ, 21 October 1997)
R v Kitchener (1993) 29 NSWLR 695
R v O’Connor (1980) 146 CLR 64
R v Tait (1979) 46 FLR 386; (1979) 24 ALR 473
R v Tolmie (1995) 37 NSWLR 660
S v The Queen (1989) 168 CLR 266
Weiss v The Queen (2005) 224 CLR 300
Willcoxson v Legal & General Insurance of Australia Ltd (1990) 101 FLR 1

ON APPEAL FROM THE MAGISTRATES COURT

No. SC 251 of 2008

Judge:             Besanko J
Supreme Court of the ACT

Date:              25 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 251 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEENCOLIN ALEXANDER SIMS

Appellant

ANDDARREN DREWSON

Respondent

ORDER

Judge:  Besanko J
Date:  25 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be allowed.

  2. The order made by the Magistrates Court of the Australian Capital Territory on 28 February 2008 dismissing the information against the respondent be set aside.

  3. The parties have leave to address the terms of the remitter to the Magistrates Court of the Australian Capital Territory and the question of costs.    

  1. In May 2007 the respondent to this appeal was charged with an offence under s 60(1) of the

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AGLC
Sims v Drewson [2008] ACTSC 91
Case
[2008] ACTSC 91
Decision Date

CaseChat Overview and Summary

In Sims v Drewson, the appellant sought to appeal against the dismissal of an information charging the respondent with indecent assault. The case was heard in the Court of Appeal of the Supreme Court of the Australian Capital Territory. The central issue was whether the acts constituting the alleged indecent assault were so closely related that they could be considered as a single act for the purpose of establishing the elements of the offence. The court had to determine whether the elements of the offence could be made out with respect to the first act only, or if the subsequent acts needed to be considered as part of the same offence.

The court considered the legal principles surrounding the elements of indecent assault and the interpretation of recklessness within the context of the Crimes Act 1900 (ACT). It was necessary to determine whether the term "recklessness" in s 60(1) of the Act included non-advertent recklessness. The court found that non-advertent recklessness was indeed encompassed within the definition of recklessness in the statute. Furthermore, the court examined whether the terms of the order nisi restricted the review to a case of non-advertent recklessness, concluding that it did not.

The court also considered whether the Crown was seeking to put the case on a new basis and if this would result in a substantial miscarriage of justice, which would warrant the exercise of the court's general discretion to refuse relief. The court found that the Crown was not introducing a new basis for the appeal, and there was no sufficient reason to withhold relief. The appeal was allowed, the order made by the Magistrates Court dismissing the information against the respondent was set aside, and the parties were granted leave to address the terms of the remitter to the Magistrates Court and the question of costs.

In summary, the appeal was successful as the court found that the elements of the offence could be made out with respect to the first act only and that non-advertent recklessness was included in the definition of recklessness within the statute. The court did not find that the Crown was introducing a new basis for the appeal, and it exercised its discretion to remit the matter to the Magistrates Court for further consideration.

Orders

Orders of the court

1. The appeal be allowed.

2. The order made by the Magistrates Court of the Australian Capital Territory on 28 February 2008 dismissing the information against the respondent be set aside.

3. The parties have leave to address the terms of the remitter to the Magistrates Court of the Australian Capital Territory and the question of costs.

Background

Background to the litigation

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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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