Bruce Reginald Bresnehan v R [1992] TASSC 55;

Bruce Reginald Bresnehan v R [1992] TASSC 55; - TASSC 1992 case summary — Zoe

[102]

9. I agree with the views of Underwood J concerning the factual basis for sentence in this case, subject to one reservation. The learned trial judge was not in my view obliged to conclude that because the appellant had been found not guilty of ill-treating the other three children he could only sentence the appellant upon the basis of the "gun powder incident", such assaults as were found to be corroborated by the evidence of the teachers and the photographs and perhaps, an assault by seizing Matthew around the throat during the "cigar incident". I consider that in addition the learned trial judge was entitled to take into account the evidence concerning the common allegations of assault at Mt Vernon and Broadwater although I agree with Underwood J that it was not reasonably open to find ill-treatment of Matthew on the basis of that evidence alone. The verdicts that the appellant was not guilty of ill-treating the other three children does not necessarily mean, by the application of logic, that the jury rejected all of the factual allegations asserted by the Crown in relation thereto. The crime of ill-treating a child may be committed by a course of wilful ill-treatment involving a number of acts committed over a period of time. The jury may well have concluded that when they gave evidence the children, including Matthew, exaggerated what was done to them by the appellant and, taking into account that some corporal punishment of the children may have been justified, that guilt had not been established on the basis of the common allegations. In the case of Matthew however the jury may have been satisfied that some of the common allegations had been made out and when viewed in combination with the evidence relating to mis-treatment of Matthew alone, guilt of ill-treatment of him had been established. With respect it is not in my view valid to divide the evidence of the course of conduct said to constitute ill- treatment of Matthew into two parts and because of the verdict relating to the other children to totally ignore one part and sentence only on the basis of the other.

[105]

11. It is conceivably possible, as the learned trial judge said, that the jury may have convicted the appellant of ill-treatment of Matthew but acquitted him with regard to the other children because matters taken into account were their ages, the absence of or paucity of direct corroborative evidence from a truly independent source, the period of time over which the offence was said to have occurred and the several concessions made by Christopher. As I said, that is conceivably possible. But in my opinion it is more likely that the jury acquitted the appellant with regard to the other children because the common allegations, that is to say allegations which were largely common in their relevance to all the children, were not so established by the evidence as to be sufficient for conviction of ill-treatment with regard to the other children. It follows that it is unlikely that the jury would have convicted with regard to Matthew on those common allegations alone and with respect I think the learned trial judge was in error in finding that Matthew's evidence was substantially correct, insofar as that finding extended to the common allegations, and in finding that there was substantial violence towards Matthew in excess of lawful correction over an extended period of time, for within those findings I think it would have to be inferred that ill-treatment of Matthew on the basis of the common allegations had been made out. Based on a review of all the evidence my conclusion is that the verdicts of the jury should be interpreted as likely to have been reached on the basis that the evidence concerning the common allegations did not establish guilt with regard to any of the children, including Matthew, but in conjunction with the evidence of the "gun powder incident", such assaults as were found to be corroborated by the evidence of teachers and the photographs and the assault by seizing Matthew around the throat during the "cigar incident", such guilt was proved with regard to Matthew.

At a glance

Court

Decision date

Before

Source

Judgment (108 paragraphs)

Bruce Reginald Bresnehan v R [1992] TASSC 55; (1992) 1 Tas R 234 (26 October 1992)

Parties

Legislation Cited (1)

Cases Cited (9)