Brendon Clive Dorn v The Queen - [2011] NZSC 6

IN THE SUPREME COURT OF NEW ZEALAND

SC 109/2010
[2011] NZSC 6

BRENDON CLIVE DORN

THE QUEEN

Court: Elias CJ, Blanchard and William Young JJ

Counsel: G J King for Applicant
F Sinclair for Respondent

Judgment: 14 February 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

The applicant seeks leave to appeal a judgment of the Court of Appeal dismissing his appeal against conviction on a charge of indecent assault under s 135 of the Crimes Act 1961.[1] The charge entailed an allegation that the applicant, a masseur, had touched the complainant under her underpants about the pubic area, in the course of giving her a stomach massage. It was acknowledged by the applicant that there was no occasion to touch the complainant in that way for the purposes of the massage treatment. His explanation to the police was that any such touching could only have been accidental because the pubic area was not part of the treatment and was avoided by masseurs. Expert evidence at the trial proceeded on the basis of inadvertent touching and did not provide any basis for therapeutic purpose in intentional massage of the pubic area. The jury verdict necessarily entailed rejection of the defence of accidental touching. The applicant seeks leave to appeal on the basis that the trial Judge materially misdirected the jury on the element of belief in consent, which the Crown must exclude before a conviction can be entered for indecent assault under s 135 of the Crimes Act 1961.
[1] Dorn v The Queen [2010] NZCA 461.
It was accepted in the Court of Appeal that the Judge’s directions on belief in consent were wrong. As a result, the applicant’s conviction on a second count of indecent touching of the complainant’s breasts (where some therapeutic basis for the touching was available) was quashed. The Court of Appeal took the view in respect of that charge that the misdirection gave rise to a miscarriage of justice because it was not possible to exclude the reasonable possibility that a not guilty verdict would have been reached if a proper direction had been given. It did not order a retrial because it was thought “pointless” in respect of one count only.[2]
[2] At [33].
In relation to the charge the subject of the present application, the Court of Appeal took the view that the acknowledged misdirection in relation to belief in consent had no material bearing on the conviction. The defence run at trial had been that any touching in the pubic area could only have been non-intentional. Such defence (and the evidence at trial that there was no therapeutic purpose in intentional touching in the course of massage) was treated by the Court as inconsistent with any intentional but consensual touching, such as would have made the issue of consent a live one at trial. It therefore dismissed the appeal, in application of s 385(1)(c) of the Crimes Act, on the basis that no miscarriage…

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: [2011] NZSC 6
Decision Date: 14 February 2011

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal from Brendon Clive Dorn, who was convicted of indecent assault under section 135 of the Crimes Act 1961. The alleged indecent assault occurred during a stomach massage when Dorn, a masseur, touched the complainant's pubic area under her underpants. The applicant argued that the trial judge misdirected the jury on the element of belief in consent, which is required to be excluded by the Crown for a conviction of indecent assault. The Court of Appeal had previously acknowledged the error in the judge's direction on belief in consent but concluded that it did not occasion a miscarriage of justice in relation to the charge of indecent assault on the pubic area.

The legal issues before the Court were whether the misdirection on belief in consent was material to the conviction and whether it resulted in a miscarriage of justice. The applicant argued that the absence of belief in consent is an essential element of the offence and that the jury had to be satisfied that it had been excluded. However, the Court of Appeal had found that the misdirection was not material because the evidence and the defence case were inconsistent with intentional but apparently consensual touching, which was the only basis on which the misdirection could have been material. The Court of Appeal concluded that there was no evidential foundation for the belief in consent to intentional touching being a live issue at the trial.

The Supreme Court upheld the Court of Appeal's decision, finding that there had been no miscarriage of justice. The Court noted that the evidence, including the applicant's own acknowledgements, excluded any possibility that there was a therapeutic justification for the touching. Therefore, the misdirection on belief in consent did not affect the conviction, and the applicant's conviction on the charge of indecent assault by touching of the pubic area was upheld. The Court dismissed the application for leave to appeal.

Orders