CLARK -v- NEFF [2021] WASCA 209 (3 December 2021)

4 The appellant now appeals to this court against the orders made by the primary judge, on four grounds. Those grounds, and the submissions advanced by the appellant in relation to the grounds, are essentially a reiteration of grounds and submissions advanced before the primary judge.

5 In our view, none of the grounds of appeal to this court have any merit. The primary judge correctly rejected the corresponding grounds and submissions advanced in the General Division appeal for the reasons which his Honour gave. Leave to appeal to this court should be refused on all grounds, and the appeal should be dismissed.

6 The primary judge gave a detailed summary of the evidence and proceedings at trial, which we gratefully adopt.[1] A more truncated summary will suffice for the purposes of making these reasons intelligible.

7 Ms E gave evidence that her mother had organised for her to have driving lessons with the appellant. The first lesson was on 1 February 2019. The lesson was in the appellant's automatic vehicle.

8 Ms E described the appellant repeatedly reaching over and tapping or touching the skin on the top of her thigh with his palm before and after giving an instruction.

9 Ms E said that the appellant had made some inappropriate comments to her. Ms E said that the appellant asked her if she had a boyfriend. He then placed his hand over her thigh and held it there for a few seconds before removing it. The vehicle was stationary in a car park when this occurred.

10 When Ms E arrived home from the lesson her mother was there, but left immediately for work. Ms E said she told her mother what had happened when her mother came home from work later that day. The evidence does not show when that was.

11 Ms E's mother gave evidence. She described seeing the appellant, at the end of the lesson, lean into the car and touch Ms E on her thigh.

12 Ms E's mother described her daughter's demeanour after the lesson as 'flat'. She said that Ms E did not want to sign up for another lesson when it was suggested to her. She also gave evidence of Ms E bursting into tears after she asked how the driving lesson was, and that Ms E complained to her when she came home from work.

13 The prosecution relied upon the evidence of Ms C as propensity evidence. Ms C, who was 21 years old at the time of the trial, had three driving lessons with the appellant when she was 16 years old.

14 Ms C gave evidence that, during her third lesson, the appellant patted the skin on the front of her upper thigh with a cupped hand on about three occasions when she made a mistake. Ms C said she told her parents what had occurred during the third driving lesson and told them she did not want to do any more driving lessons with the appellant.

15 The prosecution also relied on a second witness, Ms H, giving propensity evidence as to the appellant's conduct during a driving lesson when she was 20 years old. As the magistrate ultimately did not rely on her evidence, it is unnecessary to say more about it.

16 The appellant was interviewed by police on 20 February 2019, and the recorded interview was played as part of the prosecution case. The appellant admitted that he gave a lesson to Ms E, who he struggled to remember, and may have touched her on the leg. The appellant denied that he would have intentionally touched her inappropriately on the upper thigh.

17 The appellant elected to give evidence at trial. He denied having any sexual motivation for touching Ms E.

18 The appellant could recall tapping Ms E near her knee with the back of his hand and saying, 'let's go' to encourage her to push the accelerator to drive out of the driveway. The appellant said he may have touched her leg or arm with the back of his hand in the course of the lesson as an encouragement if Ms E was hesitant.

19 The appellant denied that he could have placed his hand palm down on her thigh and held it there for two or three seconds.

20 The appellant could remember the lessons with Ms C. He could not recall touching her on the leg although he agreed that it was possible 'once or twice'. The appellant said it would have been to encourage her to move on, or to admonish her to concentrate.

21 The magistrate found that the appellant repeatedly touched the bare skin of Ms E's upper thigh with his cupped palm, and rested his palm in this position for a few seconds while the vehicle was stationary and parked. The magistrate found that Ms E did not consent to this touching and that there was no basis for any suggestion that the appellant believed she was consenting to that touching. The magistrate therefore found that the touching constituted an unlawful assault on Ms E.

22 The magistrate found that the assault was indecent, both by reason of the nature of the touching and the circumstances in which it occurred, and on the basis of the magistrate's finding that the touching was sexually motivated.

23 In reaching these conclusions, the magistrate found that Ms E was a credible and reliable witness, whose credibility was reinforced by her mother's evidence as to recent complaint, and Ms C's evidence of very similar behaviour by the accused on a previous occasion.

24 The grounds of the appeal to this court are as follows:

1. The [primary judge] erred in holding that the evidence of the witness [Ms C] was admissible as propensity evidence under section 31A of the Evidence Act 1906 (WA).

(a) The [primary judge] erred in holding that the complaint by the complainant was admissible as evidence of recent complaint; and

(b) The [primary judge] erred in holding that the [m]agistrate had not improperly used the complaint evidence of the witness [Ms C].

3. The [primary judge] erred by holding that the [m]agistrate had not reversed the onus of proof.

4. The [primary judge] erred by holding that the complainant's distressed condition was admissible in support of the prosecution case.

25 Ground 1 in effect contends that the evidence adduced from Ms C was not admissible as propensity evidence under s 31A of the Evidence Act 1906 (WA). The issue raised by this ground concerns whether the evidence of Ms C had significant probative value for the purposes of s 31A(2)(a) of the Evidence Act.

26 The principles governing the admission of propensity evidence under s 31A of the Evidence Act were recently summarised by this court in NDY v The State of Western Australia.[2] It is unnecessary to repeat that summary here.

27 The appellant's submissions on ground 1 focus on the fact that the incident involving Ms C occurred in around 2015 while the offence with which the appellant was charged occurred in February 2019. The appellant points to the absence of any evidence accepted by the magistrate of any similar conduct in the intervening period. The appellant seeks to draw an analogy between the present case and McPhillamy v The Queen,[3] where a 10-year gap between the prior conduct and the charged conduct was a significant factor in the court's conclusion that the evidence of the prior conduct did not have significant probative value.

28 The appellant submits that, in the absence of evidence of an ongoing sexual interest in young female student drivers in the period of 2015 to 2019, and a tendency to act on it, the evidence of the appellant touching Ms C did not have significant probative value and was not admissible.

29 We do not accept the above submissions. The time between the previous conduct and the charged conduct, and whether there is evidence of other intervening conduct, is certainly relevant to the assessment of whether evidence of previous conduct has significant probative value. However, that is only one of the factors to be considered. While the court in McPhillamy referred to the passage of 10 years between the alleged offending, it also referred to the different circumstances in which the offending occurred as a significant factor.[4]

30 As Buss P (Mazza and Beech JJA agreeing) noted in Wark v The State of Western Australia:[5]

I accept that the length of an interval between the circumstances of propensity evidence and the circumstances of the charged offence is relevant and, in a particular case, may be decisive in determining whether the interval materially diminishes the capacity of the propensity evidence to be evidence of an inclination or predisposition at the time of the charged offence. However, the significance of the length of the interval must be evaluated in the context of all of the circumstances of the particular case. For example, if there are striking similarities between relevant circumstances of the propensity evidence and relevant circumstances of the charged offence, a long interval will generally be less significant than the long interval would have been if the connection between relevant circumstances of the propensity evidence and relevant circumstances of the charged offence lacked striking similarities. (citation omitted)

31 Ms C's evidence was that she was 21 years old when she gave her evidence on 13 August 2019, and that the appellant's conduct occurred when she was 16.5 years old.[6] The conduct she described would therefore have occurred about 4 - 5 years prior to the date of the alleged offence on 1 February 2019. However, the conduct which Ms C described was very similar to the alleged offence against Ms E. It involved the appellant touching the skin of the upper thigh of a teenage female driving student with his cupped palm during the course of a lesson. The propensity indicated by the evidence was not merely a tendency to act on a sexual interest of persons in a class of which the complainant was a member. Whether or not the conduct may be described as 'strikingly similar', the close degree of similarity in the alleged conduct and the circumstances in which it occurred adds to the probative value of the tendency evidence.

32 In our view, the evidence of Ms C was capable of proving the propensity of the appellant to indecently assault teenage female driving students in the course of a driving lesson, by placing his cupped palm on the skin of the upper thigh of the student. These very similar features of the conduct provide a connecting link between the conduct described by Ms C and that alleged by Ms E. The existence of that propensity made it significantly more likely that the appellant touched Ms E in the manner she described. The evidence had significant probative value, so as to satisfy the requirement in s 31A(2)(a) of the Evidence Act. There is no suggestion that the requirement in s 31A(2)(b) was not satisfied. The evidence of Ms C was properly admitted at trial.

33 The principles governing the admissibility of recent complaint evidence were recently summarised by Derrick J in MNA v The State of Western Australia.[7]

34 Ground 2(a) contends that Ms E's complaint was not made at the first reasonable opportunity, and so was not admissible as recent complaint evidence. The appellant contends that the point at which the complainant's mother got into her vehicle and drove off after the conclusion of the driving lesson marks the outer limit of the first reasonable opportunity for a complaint to have been made.[8]

35 There is no merit to ground 2(a). It is not reasonable to expect that Ms E would complain to her mother immediately at the end of the driving lesson, when the appellant was still present and her mother was rushing off to work. Having regard to all of the circumstances of the case, the complaint made after Ms E's mother returned home on the day of the alleged offending was made as speedily as could reasonably be expected. It was made at the first reasonable opportunity. The evidence of Ms E's complaint to her mother was admissible to buttress or bolster Ms E's credibility as a witness by demonstrating consistency of conduct.

Ground 2(b): use of complaint by propensity witness

36 Ground 2(b) contends that the magistrate improperly used the complaint evidence of Ms C. The appellant contends that the magistrate used that complaint evidence as supporting the evidence of Ms C and, in turn, as bolstering Ms E's evidence. The appellant says that the evidence of a recent complaint is only admissible if it was made by the complainant who is the subject of the charge, and is not admissible to bolster or support the evidence of a propensity witness.

37 The primary judge correctly recognised that it is not necessary in the present case to determine the legal issue of whether recent complaint evidence is admissible to bolster or support the evidence of a witness other than a complainant the subject of the relevant charge.[9] That is because the magistrate did not use the evidence of Ms C's complaint in the manner alleged by the appellant.

38 The magistrate's reference to Ms C's complaint in his Honour's reasons was contained in the following passage, which followed from his summary of Ms C's account of the offending against her:[10]

[Ms C] said that the [appellant's] behaviour made her feel clenched up and cringey. Clearly the nature of the [appellant's] physical contact made an impact on her. She said that on the evening after the third lesson she told her parents about the [appellant's] behaviour and declined to have any further driving lessons with the [appellant]. [Ms C] was, in my view, a convincing witness. I had no reason to doubt either her honesty or her reliability.

39 In our view, the primary judge was correct to conclude that the magistrate did not use Ms C's evidence of her own complaint to her parents to enhance or bolster Ms C's evidence. The magistrate was merely recounting the narrative which Ms C had given without objection. That stands in contrast to the way in which the magistrate treated the evidence of Ms E's complaint to her mother.[11]

40 Ground 3 contends that the magistrate reversed the onus of proof.

41 The magistrate began his reasons by explaining the onus was on the prosecution to prove each element of the charged offence beyond reasonable doubt.[12]

42 The magistrate recognised that the critical issue was whether he could reject the appellant's evidence, as to the nature of the physical contact which occurred, and accept the evidence of Ms C and Ms E:[13]

such that I can be satisfied beyond reasonable doubt that the touching did occur in the way described by [Ms C] and [Ms E].

43 The magistrate went on to explain why his Honour found the appellant's evidence to be unconvincing and, in a number of respects, unsatisfactory.[14] The impugned passages arise in the context of this explanation.[15]

44 The magistrate referred to the description given by the appellant, in his recorded interview with police, of situations where he considered it helpful to make physical contact with his students as part of the process of assisting them to learn to drive.[16] The magistrate noted that, in his recorded interview, the appellant did not refer to any situation that would justify any physical contact with a student driving an automatic vehicle. The magistrate expressed the view that the appellant was given ample opportunity to do so in the interview. The magistrate noted that the appellant did not, in the recorded interview, describe the contact described in his evidence. The magistrate said that:[17]

In my mind this created the distinct impression that his evidence to the effect that the only physical contact he initiated with [Ms E] was of the innocuous kind that he described was the product of recent and convenient invention.

45 The magistrate then said that there was another aspect of the appellant's evidence that added to his Honour's impression. This was the appellant's repeated assertion that Ms E appeared to be a nervous and hesitant driver.[18] By reference to the evidence of Ms E and her mother, the magistrate found that, by the standards of an unlicensed learner driver, Ms E's confidence and competence was of a high standard. His Honour found that this would have been obvious to the appellant who was an experienced driving instructor. The magistrate then said:[19]

As I've mentioned, the [appellant] described [Ms E] as a nervous and hesitant drive[r]. However, I note in cross-examination that the [appellant] was unable to point to anything in particular in [Ms E's] behaviour or manner that led him to reach this conclusion. Accordingly, I don't accept the [appellant's] evidence that [Ms E] was demonstrably nervous, or that she was an obviously hesitant driver during the driving lesson on 1 February.

In my view the [appellant] very likely depicted [Ms E] in this way in order to justify his claim that some modest innocuous physical contact with her was a necessary part of her training on that occasion. I find that this depiction was deliberately misleading.

46 In our view, the above passages do not involve any reversal of the onus of proof. In order to be satisfied, beyond reasonable doubt, that the appellant was guilty of the charged offence the magistrate needed to reject the appellant's denial of the offending. In the above passages, the magistrate was explaining why he rejected the appellant's evidence.

47 Having positively rejected the appellant's denial of the offending, his Honour went on to consider, in an orthodox fashion, whether the evidence which he did accept proved each element of the charge beyond reasonable doubt. The magistrate considered the evidence of Ms C and Ms E, finding that the alleged touching had occurred and each element of the charged offence was established beyond reasonable doubt.[20]

48 When the magistrate's reasons are considered as a whole, there is no arguable basis for the contention that his Honour reversed the onus of proof in any respect. The impugned passages concern the reasons why the magistrate rejected the appellant's evidence, before turning to consider whether the prosecution evidence established each element of the offence beyond reasonable doubt. The magistrate's observations that the appellant did not give the account proffered at trial to police when afforded the opportunity to do so, and was unable to say why he considered Ms E to be a nervous driver, explained why his Honour found the appellant's evidence to be unconvincing. That assessment of the appellant's evidence did not involve any reversal of the onus of proof.

49 Ground 4 in terms challenges the admissibility of evidence of Ms E's distress after the driving lesson in support of the prosecution case.

50 As developed in oral and written submissions, the ground seeks to attack the use which the magistrate made of the evidence of Ms E's distress rather than the admission of evidence that she was in a distressed state following the driving lesson. The alleged error lies in the failure by the magistrate to direct himself as to the extent to which evidence of Ms E's distress could support the prosecution case.[21] The direction which the appellant contends the magistrate ought to have given himself was never clearly articulated. However, it appears that the appellant submits that the magistrate should have directed himself that, before using evidence of distress as corroboration, the distress must be reasonably explicable only on the basis that the alleged indecent assault occurred.[22]

51 The law as to the use of evidence of a complainant's distress was summarised by this court in Grubisic v The State of Western Australia.[23] As this court recognised in Di Stefano v The State of Western Australia:[24]

There is a distinction between using distress as corroboration, that is as independent evidence tending to confirm that the events described by the complainant in fact occurred, and using it as supportive of the complainant's credibility.

It is well established that before a complainant's distress can constitute corroboration, the distress must be reasonably explicable only on the basis of the alleged sexual assault.

52 In the present case, the magistrate did not use evidence of Ms E's distress as independent evidence corroborating her version of events. Rather, his Honour used the evidence of Ms E's distressed condition as part of, and in the same manner as, the recent complaint evidence. The magistrate said:[25]

I find therefore that [Ms E's] complaint to her mother was made as soon as practicable following her driving lesson with the [appellant] on 1 February 2019. I further find that [Ms E] was visibly upset and crying when she told her mother about the [appellant's] behaviour during the driving lesson.

I accept [the mother's] evidence that this was unusually emotional behaviour for her daughter who was - and I quote - 'not prone to crying'. Can I just pause at this point to make this comment about the way in which I must use this recent complaint evidence. Recent complaint evidence is not admitted as evidence of the facts in issue in a trial. Its use, if accepted, is to establish consistency which in turn buttresses or supports the credit of the complainant, in this case [Ms E].

53 The only use which the magistrate made of the evidence of distress was to describe the manner in which Ms E made the complaint to her mother, which complaint was used to indicate consistency of conduct which was supportive of the complainant's credibility. Counsel for the appellant correctly accepted that this was a permissible use of the evidence of distress.[26] The evidence was admissible for this purpose, and there was no need for the magistrate to give himself any further direction before using the evidence in that manner.

54 For the above reasons, there is no merit to any of the grounds of appeal. Leave to appeal should be refused on all grounds, and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] NDY v The State of Western Australia [2020] WASCA 172 [47] - [59].

[3] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [31] - [32].

[5] Wark v The State of Western Australia [2020] WASCA 19 [326].

[6] Trial ts, 13 August 2019, 23, 25, 30 - 31.

[7] MNA v The State of Western Australia [2020] WASCA 84 [118].

[11] Trial ts, 22 August 2019, 145, quoted at [52] below.

[12] Trial ts, 22 August 2019, 129 - 130.

[14] Trial ts, 22 August 2019, 137 - 139, 140 - 141.

[15] See appellant's submissions, par 52, appeal ts 7.

[16] Trial ts, 22 August 2019, 138, 139.

[18] Trial ts, 22 August 2019, 139 - 140.

[20] See, in particular, trial ts, 22 August 2019, 142, 144, 147 - 148, 149, 150.

[21] Appellant's submissions, par 64 - 65, appeal ts 7 - 8.

[22] Appellant's submissions, par 60 - 61.

[23] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524 [70] - [72], [105] - [112].

[24] Di Stefano v The State of Western Australia [2017] WASCA 187 [20] - [21].