Brockie v R [2019] NSWCCA 120

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brockie v R [2019] NSWCCA 120 Hearing dates: 17 April 2019 Decision date: 17 June 2019 Before: Johnson J at [1]; R A Hulme J at [2]; Wright J at [87] Decision: 1. Leave to appeal against conviction refused. 2. Leave to appeal against sentence refused. Catchwords: CRIME — appeals — appeal against conviction – whether prosecutor made error of fact by inviting jury to treat evidence of complainant differently due to intellectual disability – whether trial judge made error of fact in finding that the complainant and witnesses had cognitive impairment and directing jury that it could form own opinions about intellectual capacity – no technical medical evidence of intellectual disability – trial run on acceptance of complainant's lower intellectual capacity – rule 4 Criminal Appeal Rules applies – leave refused CRIME – appeals – appeal against sentence – whether error of fact – taking into account that complainant was cognitively impaired and vulnerable person – no technical medical evidence of intellectual disability – whether error of law – denial of procedural fairness in taking into account complainant's cognitive impairment – open to judge to describe complainant as having an intellectual disability – applicant's counsel agreed with proposed sentence – leave refused Legislation Cited: Crimes Act 1900 (NSW), ss 61H(1A), 61HD, 61I, 61J, Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW), s 5(1)(b) Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 (NSW), Divs 3 & 4 of Ch 6, Pt 5, ss 143, 306M(1), 306M(2) Evidence Act 1995 (NSW), s 144 Cases Cited: ARS v R [2011] NSWCCA 266 Lyndon v R [2014] NSWCCA 112 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed (text rev) (2000) American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed (2013) Category: Principal judgment Parties: Glen John Brockie (Applicant) Regina (Respondent) Representation: Counsel: Mr N Steel (Applicant) Mr G Newton (Crown)