Dennis v Davis [2010] NTSC 35

Dennis v Davis [2010] NTSC 35 - NTSC 2010 case summary — Zoe

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[1] The appellant appeals against his convictions, and a sentence of seven days actual imprisonment imposed on him by the Court of Summary Jurisdiction.

[2] On 17 December 2009, following a trial in the Court of Summary Jurisdiction, the trial magistrate found the appellant guilty of three counts of assault, each with circumstances of aggravation, contrary to s 188(1) and s 188(2) of the Criminal Code. The assaults were found to have been committed in the wave pool in Darwin on 17 May 2009. The victims of the assaults were respectively Miss TE, Miss RH and Miss AH. The circumstances of aggravation of the assault involving Miss TE were that Miss TE was a female and the appellant was a male; and Miss TE was under 16 years of age[1]. The circumstances of aggravation of both the assault involving Miss RH and the assault involving Miss AH were that: the appellant was a male and each of the complainants was a female; each of the complainants was under the age of 16 years of age; and each of the complainants was indecently assaulted[2].

[3] The prosecution case was that on 17 May 2009 the appellant, who is an adult male, attended at the wave pool in Darwin with his step-son. While he was in the wave pool he assaulted Miss TE, Miss RH and Miss AH all of whom were young females then 14 years of age. The appellant assaulted Miss TE by placing his hands on her hips. He assaulted Miss RH by grabbing her bottom with one hand; and he assaulted Miss AH by grabbing her hip, her bottom and one of her breasts. The appellant was unknown to the complainants and an important issue in the case was the sufficiency and reliability of the identification evidence of the complainants.

[4] For the assault against Miss TE the appellant was convicted and fined $1000. He was ordered to pay a victim's levy of $40. For each of the assaults against Miss RH and Miss AH, the appellant was convicted and sentenced to three months imprisonment. The sentences of imprisonment were ordered to be served concurrently and the aggregate sentence of three months imprisonment was to be suspended after the offender had served seven days in prison. Under s 40(6) of the Sentencing Act (NT), the trial magistrate specified an operational period of three years during which the offender was to be of good behaviour.

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[5] The appellant relies on the following grounds of appeal[3]:

The trial magistrate erred in law by failing to warn or adequately warn himself of the dangers associated with relying upon the identification evidence lead at the hearing.

The learned magistrate erred in law by failing to give adequate reasons or any reasons at all for relying on the evidence of identification lead at the hearing in circumstances where he should have warned himself of the danger of relying on such evidence and given reasons that included the identification of the particular dangers inherent in relying on the evidence and reasons why those dangers did not preclude him from relying on the evidence in this particular case.

The learned magistrate erred in law in that he failed to give reasons as to why the circumstances alleged supported a conclusion that the two girls had been indecently assaulted.

The learned magistrate erred in law in that he failed to give reasons as to why the charge of aggravated assault of Miss TE was made out in circumstances where a reasonable hypothesis consistent with innocence was open.

The learned magistrate erred in law in failing to give himself an appropriate direction about the use of circumstantial evidence in the case of each of the three complainants

The learned magistrate erred in law in failing to direct himself that each of the complainants respective cases needed to be dealt with separately and in failing to identify the evidence relevant to the determination of each case

The learned magistrate erred in law in failing to provide any, or any proper reasons for rejecting the evidence of the appellant.

The learned magistrate erred in law in failing to direct himself about the use that could be made of the applicant's established good character.

The sentence of seven days actual imprisonment was manifestly excessive.

[6] At the heart of this appeal lies the adequacy of the reasons given by the trial magistrate for finding the appellant guilty; and his obligation to take into account certain relevant directions and warnings about the evidence. Apart from the appeal against the appellant's conviction for the aggravated assault of Miss TE which is based on ground 4 above, the substance of the appeal is a submission that the trial magistrate failed to give adequate reasons for finding the appellant guilty on the basis of the evidence before the Court of Summary Jurisdiction. The appellant also complains that the trial magistrate failed to direct and warn himself about certain matters of law and fact which fell for decision in the course of reaching his verdicts.

[7] The appellant submits that to find him guilty, the trial magistrate had to make decisions in light of certain principles affecting his assessment and use of the evidence and he had to explain how he dealt with these principles and the evidence. The complaint is that the trial magistrate failed to do so and in the circumstances of this case there has been a miscarriage of justice.

[8] The appellant's complaint about his conviction for the aggravated assault of Miss TE is that the conviction was unreasonable and could not be supported by the evidence. Save for the appellant's conviction of the aggravated assault of Miss TE, it was not pressed that, as a matter of law, the appellant could not be convicted of the other two charges against him. The essence of the appellant's complaint was that the trial in the Court of Summary Jurisdiction miscarried.

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[20] The only evidence against the appellant was the identification evidence of each of the complainants. The prosecution case against the appellant was a circumstantial case. None of the complainants actually saw the appellant touch them in any manner. Nor did any of the complainants see the accused touch any of the other complainants. The appellant defended the case on the basis that he denied assaulting the complainants and the evidence as to identification was not sufficiently reliable to place him in the vicinity of any of the complainants at the time the assaults were said to have occurred. While he denied touching the complainants in the manner they described his evidence did not exclude the possibility that he may have come into contact with them at some stage. He acknowledged that from time to time he had bumped into people while he was in the wave pool and on one occasion his glasses fell off and he fumbled around in the water to try to find his glasses. Evidence was also led from the appellant and from the complainants that in the ordinary course of using the wave pool people came into contact with each other because of the different activities people were engaged in, the force of the waves and the large number of people using the wave pool.

[21] Prior to the summary trial commencing, the appellant made an application for separate trials of the counts with which he had been charged. It was submitted that the court should order separate trials where there are multiple alleged victims, the evidence in respect of one alleged victim was not relevant to the charges involving the other victims and where the joinder of the charges created a risk of prejudice.

[22] The application for separate trials was refused by the trial magistrate. In the course of his reasons, but without considering any of the actual evidence, the trial magistrate considered if the evidence could be used as similar fact evidence to establish propensity or inclination or coincidence, or to rebut innocence. Ultimately, his Honour determined that he would like to have the evidence of all of the complainants before him in order to be in a position to fairly assess the evidence. His Honour held that such a use of the evidence would not be as prejudicial as using the evidence to establish propensity. I take the trial magistrate to have meant that he considered the evidence may be used to rebut accident. His Honour went on to state that, if counsel for the defence perceives or suspects that the evidence may be incorrectly used, then counsel could address him at length as to the proper use of the evidence.

[23] In the circumstances the following issues were the principal issues at the trial of the appellant: (1) Was there a reasonable possibility that the appellant was not the person who touched the complainants? (2) Was there a reasonable possibility that the appellants wrongly identified the appellant? (3) Was the evidence of identification so unreliable that it lacked probative value? (4) Was the circumstantial evidence in respect of each complainant sufficiently probative to exclude all reasonable hypotheses consistent with the innocence of the appellant? (5) Was there a reasonable possibility that the contact with each of the complainants was reasonably needed for the common intercourse of life? (6) Was there a reasonable possibility that the contact with the complainants was accidental?

[24] At the summary trial of the appellant the defence argued that the following factors were relevant factors to be taken into account when assessing the reliability of the evidence of identification given by the complainants: the complainants did not see the man touch them; the complainants' observations of the man they believed touched them were fleeting and it is unknown how much time elapsed between each of the observations each of the complainants made of the man; the complainants were traumatised by what occurred; the man was unknown to the complainants and all they essentially saw of the man was his head above the water; at the time that each incident occurred the wave pool was crowded; the man was not kept under constant observation and the evidence of the complainants did not establish the time when each incident occurred or how much time elapsed between each incident; for Miss TE and Miss RH a number of hours may have elapsed between the first and second sighting of the man; the evidence of each of the complainants was contaminated as a result of the conversations they had with each other and with other people about who was the man who touched them and the original image that the complainants had of the man may have been displaced by these later conversations and observations; and the complainants were young and immature women.

[25] In order to resolve the fourth principal issue at the trial of the appellant it was necessary to identify and analyse the precise evidence that was relevant to each charge of assault.

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[27] Miss TE gave the following evidence.

[28] On Sunday 17 May 2009, Miss TE went to the wave pool near the Darwin Convention Centre with Miss Jessica Agung and Jessica's mother, stepfather, stepbrother and little brother. They arrived at the wave pool at 9.50 am. The wave pool opened at 10.00 am.

[29] After they went into the wave pool enclosure, Miss TE and Jessica picked up a tube and got into the water. During the first set of waves, they caught waves on the right hand side of the wave pool which is the side of the wave pool near the Convention Centre. When the second set of waves started Miss TE caught a wave which took her down to the bottom end of the wave pool. She then felt two hands grab her around her waist for a couple of seconds. It was a very quick grab. It lasted until she turned around to see who grabbed her. When she turned around the person said sorry and let her go. She looked around and there was this guy kneeling down and he said, sorry, and then he went away.

[30] Miss TE could not say if the man, who said sorry, was the same person who grabbed her on the waist. She did not see who grabbed her. The man was simply there when she turned around. She could see his head and shoulders. She did not know the man. She looked at him for a couple of seconds at the most. After he said sorry, she turned and swam away and she told Jessica what occurred. She was not under the water when the incident occurred. The height of the water was somewhere between her waist and her chest.

[31] Although there were plenty of other children and adults using the wave pool at the same time, the man was by himself. There was no young boy with him when he grabbed Miss TE.

[32] Miss TE gave the following description of the man. He had greyish short spiky hair and he was of a medium build. She estimated he was 46 years of age. The man was a white fellow. He had pale white skin with freckles. He was a white guy, pasty white, pale white. He had freckles on his arms. She cannot remember if he was hairy or not. The man was wearing light grey board shorts with a pattern. He was not wearing a shirt or a hat and he did not have any glasses on. There was nothing else peculiar about him.

[33] The wave pool was crowded and sometimes people had to duck under each other in order to avoid being hit while surfing. There were plenty of people there enjoying a Sunday in Darwin on the Wharf. There were young people, old people and lots of kids. There were lots of kids screaming and laughing and engaging in all the usual activities that occur in a wave pool. There was lots of noise and people screaming. The waves were loud as well. There was a bit of an echo. Sometimes boogie boards or tubes collided with people while some people were surfing and other people were doing other things in the wave pool.

[34] About 20 minutes after the incident involving her occurred she met up with Miss AH. They swam to the wall on the left side of the wave pool near the lane ropes and the Vibe Hotel. They were in the deep part at the end of the wave pool. The waves were going. They were treading water near the wall when the man who grabbed her on the waist appeared again. He was right next to them. She looked at him long enough to know that he was the person who grabbed her. She was 100 per cent sure he was the same man who grabbed her. This was the second time she had seen him. He was right next to them against the wall. He was within arms reach. He was the only person next to them. The man was not standing up. It was too deep to stand. There were some other people around but they were not that close to them. There was just Miss TE, Miss AH and the man in close proximity to each other. The man kept smiling and looking at them really weirdly.

[35] Miss AH's head was bobbing up and down in the water. Miss TE pushed Miss AH away a bit. She pointed out the man and she told Miss AH to stay away from him. She had to tell Miss AH three times before Miss AH started to follow her. They swam a little bit away from him and that is when Miss AH told Miss TE that she had also been grabbed by the man. Miss TE told Miss AH that the man had grabbed her before and she thought he was following her. Miss AH replied that while they were swimming the man had grabbed her on her bottom and on one of her breasts.

[36] It was a bit quieter at that location where Miss TE saw the man on the second occasion than elsewhere in the wave pool, but an occasional person still went past them. The closest people to them were about five metres away. There may have been one or two people swim past them.

[37] Later on, Jessica pointed to a man who was sitting in the Vibe Hotel café with a boy who appeared to be about 13 years of age. The man was wearing a pink shirt. Miss TE was not that close to him when he was pointed out. She was not 100 per cent sure he was the man who grabbed her. He vaguely looked like him but she was not 100 per cent sure.

[38] Miss TE did not see the man again at any other stage during the day. She left the wave pool with Jessica's family and went home before the police arrived. At no stage was she asked by the police to identify the accused from a board of photographs or at an identification parade or at all.

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[41] Miss RH gave the following evidence.

[42] On 17 May 2009, Miss RH went to the wave pool with her father, sister and brother and her brother's friend and her friend. She arrived at the wave pool at 10.30 am and she met Miss TE and Miss Jessica Agung. When she arrived at the wave pool Miss AH was not there. She arrived later on. Miss RH and Miss TE went for a swim. They were swimming on the left side of the wave pool which is the side near the Vibe Hotel. She and Miss TE swam together.

[43] Miss RH got dunked under the water and as she came back to the surface she got touched on her bottom. The man who touched her said, "Are you alright, chick?" She did not reply. When she was touched she was half way down the left side of the wave pool. She was touched on the side of her bottom. She cannot remember if it was the right side or the left side of her bottom. It was like a grab, like all hands on my bum. It was only one hand that grabbed her bottom. It did not hurt. It was a light grab. The grab did not even last for two seconds.

[44] She turned around as soon as it happened. She saw a man's head. He was about one metre away from her and he was smiling at her. The man was within touching distance of her. There were other people in the wave pool but no-one else was close by. There was just her and Miss TE. Miss TE was further away than touching distance. She looked at the man and then she swam away. She swam back to her friends and she told them she had been touched.

[45] The man was the man who she described before[23] as the man who Miss TE pointed out to her. He had grey hair and white sideburns with a bit of a belly and he was about 36 years of age. The man had white skin. He was pale. He was of stocky build.

[46] After the incident involving Miss RH occurred, she and Miss TE went and spoke to her sister who was near the shallow end of the wave pool. She told her sister that both she and Miss TE had been touched. Miss TE did not speak to her sister. After they spoke to her sister they kept swimming at the back of the lane rope.

[47] Eventually, she got out of the pool and she had some lunch. When she went back into the wave pool after lunch she was with Miss AH. She and Miss AH went swimming on the left side of the wave pool. That is, the Vibe Hotel side of the wave pool. They were at the back of the wave pool near the lane rope.

[48] After they had been swimming for a while, Miss AH told Miss RH that she had been touched by a man and Miss RH went and spoke to her sister again. Her sister and her father then went and spoke to the lifeguard. Miss RH was asked by the lifeguard to point out the man if she could. She could not see the man in the wave pool. However, she and the lifeguard walked closer to the gate in the enclosure surrounding the wave pool and she noticed the man was sitting eating lunch in the Vibe Hotel café and she pointed him out to the lifeguard. When she noticed the man she was inside the wave pool area near a blue umbrella under a palm tree. She saw a man sitting down eating his lunch. She could see the whole man. She knew it was the same man because she had previously pointed the man out to her sister. Her sister had identified him as someone who was wearing a pink shirt and the man in the Vibe Hotel café was wearing a pink shirt. Her sister was with her and the lifeguard when the man was identified. She was also able to identify the man because he was wearing the exact same board shorts he had been wearing when she saw him in the wave pool. They were blue with white stripes. She also observed his sideburns and the colour of his hair. She was 100 per cent certain that it was the same man. The lifeguard said he could not do anything because the man was no longer in the wave pool complex.

[49] Miss RH said when she saw the man seated in the Vibe Hotel café she was about eight to ten metres away. The man looked like the person who she saw in the pool. She did not think she had made a mistake in identifying him.

[50] After Miss RH saw the man in the Vibe Hotel café, she and Miss AH went for a swim in the wave pool again and they noticed that the man was back in the wave pool. Miss AH said, "There he is". The man was in the middle of the wave pool. He was wearing blue board shorts. She was 100 per cent certain that it was the same man. Miss AH got very anxious when she saw the man back in the wave pool and the waves swept her closer to him. Miss AH yelled out to Miss RH's sister and Miss AH's cousins then swarmed him.

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[51] Miss AH gave the following evidence.

[52] On Sunday 17 May 2009, she went to the Darwin wave pool with her grandfather and her three cousins. They arrived at the wave pool at about lunch time. After she arrived she met Miss RH and later on Miss TE. They are friends of hers from school. She put her bags down and she went into the water for a swim with Miss RH. After they had a swim they met Miss TE. Initially, they were swimming on the side of the wave pool closest to the Convention Centre.

[53] After she had been in the wave pool for about 15 to 20 minutes, she went for a swim near the wall of the wave pool which is closest to Vibe Hotel. She was about a metre to a metre and a half away from the wall of the wave pool. It was during a wave session. There were lots of people in the water on that side of the wave pool. She was standing up in the water. There was a little bit of water over her head. She was swimming with her back to towards the wall. She was looking at Miss TE who was about one metre away from her.

[54] Miss AH felt a hand grab her left hip and then grab the right hand side of her bottom. It was just a touch, a grab, and then the person let go. Next, she felt a hand go up onto her right breast. She was grabbed on her breast straight after she was grabbed on her bottom. It occurred within a second of her bottom being grabbed. She was grabbed by one hand. She described the grab in the following way: "Even as long as just enough to grab and let go but to get a feel, that's it. It wasn't very hard but it wasn't like a brush. Like - they were like to have a feel, like a grab but not hard." The grab came from behind the left hand side of her body.

[55] Miss AH did not see the hand that grabbed her because she was under water. She turned around straight after she was grabbed and she saw the man who she thinks grabbed her. He was about a metre to a metre and a half away. There was no-one else that close to her at the time. She looked at Miss TE and then looked straight back at the man. The man asked, "Are you alright, Babe?" She did not respond to his question. She swam away. She had never seen the man before.

[56] The incident happened very quickly. There were three very quick grabs. She was standing up when she was grabbed. She had just ducked under the water and she was coming back up. No-one went over her as she was coming to the surface of the water. When she surfaced she looked at Miss RH and Miss TE to see if they had been mucking about and had grabbed her. She thought they may have grabbed her. However, she did not talk to them. She turned around and there were some other people behind her who were not far away. One of them was a man. She only paid attention to the man. All she could see of the man was his head. She looked at him for a very short period of time. She had a quick look at the man and then she turned away and swam over to her friends. They were about another metre away from her. She did not pay attention to the other people. There were other children around but she wasn't really paying attention to them. All around her there were people screaming and giggling. She took her eyes off the man at least for the period of time she spoke to her girlfriends.

[57] Miss AH told Miss TE that the man had touched her. Miss TE told her that, earlier on, he also touched her. They were in the middle of the shallower part of the wave pool when they had this conversation. She spoke to Miss TE straight after the incident occurred. She knew the man who touched her was the same man who touched Miss TE because when they were swimming together they both looked at him. She knew who Miss TE was talking about. She observed the man before the incident with her occurred. Miss TE looked at the man and said, "That guy over there, the one that's grinning, that's the one who touched me." He was in the water at the time. Miss RH was not present when Miss AH spoke to Miss TE about this. Miss RH was not near Miss AH when the man grabbed her.

[58] The man had short greyish coloured hair. He had a beard but it wasn't long and it wasn't really short. It was neat and tidy. He had no moustache. He was not a big man but he wasn't scrawny. He was 'skinnyish'. She does not recall the colour of the man's eyes. His skin was a light colour but not really white. It was like a light brown colour. The man was a bit tanned. His skin was a little bit lighter than olive skin. He was not someone who she would describe as a coloured person. The man had light olive looking complexion and grey hair. She did not see what he was wearing. He did not have a shirt on when he grabbed her. He was not wearing spectacles or swimming goggles or any earrings.

[59] After she was grabbed, Miss AH hopped out of the water and she and Miss TE went and spoke to Jessica Agung and her mother. They told Mrs Agung what had occurred. Towards the end of this conversation Miss RH said that she was also touched by the same man. Miss RH and her sister then went and made a complaint to one of the lifeguards.

[60] Miss AH also reported the incident to her grandfather. She told her grandfather and Nick about it. Her grandfather asked her if she could point out the man but she could not because he had left the wave pool area. She did not see the man step out of the wave pool. Later on, she was told that the man had been spotted in the Vibe Hotel café. Miss RH told her the man was in the café. She went around and looked at the café to see if she could observe the man.

[61] Miss AH saw the man in the Hotel Vibe Café. He was wearing a pink shirt. She saw the colour of his pants. However, at the time she observed him in the café, she was not 100 per cent sure he was the man who touched her in the wave pool. With hindsight she is pretty sure that it was him because she saw him come back into the wave pool in the same shirt he was wearing in the café. After the man went back into the wave pool she recognised him as the man who had touched her. She remembered his face. She recognised his board shorts and his shirt. His board shorts were white and blue on the side and his shirt was pink.

[62] Later on, the man was confronted by her grandfather and, ultimately, he was arrested by the police. Miss AH observed the confrontation with her grandfather and also the man being arrested by the police. When her grandfather confronted the man she was about two metres away. She looked at the man when he was being confronted. It was the same man with the same coloured board shorts and shirt. She recognised the man who was taken away by the police as the same man who had touched her. She could see his face when he was with the police and she remembered what he looked like. He was also wearing the pink shirt and the board shorts.

[63] There were about 100 people in the wave pool. It was a busy morning and people were having fun in the wave pool. On some occasions she hit other people while she was on a boogie board. On some occasions she bumped into people when she did not mean to. Sometimes she accidentally kicked someone with her foot. She was asked if she got accidentally kicked and she answered, "I'd been kicked once, but that's about it." She tried to stay away from everybody else. She agreed that it was inevitable that she was going to have some sort of contact with other people who were out having a good time.

[64] She was not asked to identify the man either from a photo board or in a line up. She said she was 150 per cent sure that they got the right person. The man her grandfather confronted was the same man who touched her in the pool.

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[76] In Tatam v Svikart the Northern Territory Court of Appeal expressly did not decide if it was always necessary for a trial magistrate to enunciate the fact that he or she had provided themselves with an appropriate warning about matters of identification evidence. In Fleming v The Queen[37], in the context of a discussion about whether the trial judge should have given himself a warning of the kind discussed Longman v The Queen[38], the High Court stated that there may be cases where an examination of the reasons given, although they do not contain express reference to a warning, sufficiently discloses that the judge has had regard to the warning. However, an animating principle which lies behind the requirement of s 33[39] is that criminal justice not only be done but also be seen to be done. The judgment must show expressly or by necessary implication that the warning was taken into account. It is no answer that the trial judge is an experienced judge who was well aware of the requirement of the warning and that he or she must have taken the warning into account.

[77] Having reviewed the authorities it seems that, in relation to a warning about identification evidence, the law has progressed to a stage where, if identification evidence is the only evidence which implicates an accused, it is necessary for a magistrate to warn himself about the special nature of identification evidence and those matters which might weaken the identification evidence. There should be a reference to the possibility that an honestly mistaken witness can be a convincing witness and that two or more honest witnesses can be just as mistaken as one. The magistrate should then act on the warnings and explain why, after taking account of the warnings, the evidence nonetheless satisfies the magistrate. In this regard I agree with the remarks made by McKechnie J in Moores v Renting[40]. His Honour's remarks are applicable even though in the Northern Territory there is no equivalent statutory provision to s 31 of the Magistrates Court Act 2004 (WA).

[78] As to the identification evidence of Miss AH, the trial magistrate made the following remarks:

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[82] It is apparent from the remarks of the trial magistrate which I have set out above, that although his Honour discussed aspects of the identification evidence of the complainants, his Honour only warned himself about the possibility of contamination of the identification evidence of each of the complainants. Neither expressly nor by necessary implication did his Honour give himself a warning such as the one referred to in par [77] above. While his Honour acknowledged that contamination was occurring he did not give reasons which coherently, intelligibly and comprehensively explain why the contamination, which he identified, had not caused any displacement and had not resulted in the evidence of identification of the complainants being undermined. For example, his Honour asserts that there is a chain of recognition between the girls yet he does not identify the evidence which is said to establish the chain. His Honour does not do so in circumstances where he acknowledges that the evidence about times is such that it is very hard to relate the evidence of some witnesses to the evidence of others, the man identified by Miss TE did not have a beard or sideburns, and Miss TE gave evidence that she was not 100 per cent sure the man in the Hotel Vibe Café was the man who grabbed her. She said he vaguely looked like him but she was not 100 per cent sure.

[83] The trial magistrate did not identify which of the factors raised by the defence he considered to be matters of significance that may undermine the reliability of the identification evidence. Nor did he warn himself about any such factors and then proceed to evaluate the adequacy of the evidence of each of the complainants by reference to their identification evidence. Nor did he explain why, after taking account of the warning, the evidence satisfied him that the appellant had been correctly identified as the person who committed the offences against the complainants. The trial magistrate appears to have had regard to a lot of hearsay evidence and irrelevant evidence about the state of mind of the complainants. His Honour wrongly took account of the evidence, that there was more than one complaint, as evidence which confirmed the identification evidence of each of the complainants. He did so in circumstances where he stated he was not using the evidence of the complainants as similar fact or coincidence evidence.

[84] Further still, the trial magistrate did not warn himself that an honest witness may be mistaken or that two or more honest witnesses can be just as mistaken as one. In my opinion he should have done so. It was particularly important that the latter warning be given in circumstances where the trial magistrate had refused an application for separate trials of the charges against the appellant and the evidence of the complainants was not being used as similar fact evidence.

[85] In my opinion, there has been a miscarriage of justice. The proviso does not apply and the appeal should be allowed on these grounds. The appellant's convictions for each of the counts of assault and the circumstances of aggravation should be set aside. It is appropriate that there should be a retrial in relation to each of the counts of assault involving Miss RH and Miss AH.

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[88] In my opinion the learned magistrate erred in making the statement referred to in par [86] above. As none of the complainants saw the appellant assault them the case was very much a case which depended on the drawing of inferences about who assaulted them. Not only was the trial magistrate required to draw inferences about who assaulted each of the complainants but he was required to warn himself that he must be satisfied there were no other co-existing circumstances that could weaken or destroy the necessary inference; and that the proven facts were such that the only rational inference was that the appellant assaulted each of the complainants[41]. Before he could convict the appellant, the magistrate was required to be satisfied that evidence was such as to exclude any reasonable hypothesis consistent with innocence[42].

[89] Further, the evidence about Miss AH's state of mind is irrelevant and inadmissible[43]. Likewise, any conclusion that the trial magistrate drew about Miss AH's state of mind is irrelevant. The evidence about Miss AH's state of mind does not logically assist in identifying the accused nor does it logically assist in determining who assaulted Miss AH. It is simply not a relevant circumstance. It is not a circumstance which could be relied on by the trial magistrate to make an inference beyond reasonable doubt that it was the appellant who assaulted Miss AH. That inference can only be drawn if the evidence establishes that the appellant was the only person who was sufficiently proximate to each of the complainants to have assaulted them or, if there were other people in the vicinity, that it was nonetheless the appellant who assaulted each of the complainants.

[90] The trial magistrate should have identified the intermediate facts which led to his conclusions that the appellant had assaulted each of the complainants and the evidence which established those intermediate facts. He should also have explained why the evidence established the necessary intermediate facts and led to the ultimate conclusions that the appellant assaulted the complainants. In the circumstances the magistrate has failed to give adequate reasons for coming to the conclusion that it was the appellant who assaulted each of the complainants.

[91] In my opinion, there has been a further miscarriage of justice[44]. The appeal should also be allowed on this ground.

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[95] The evidence of the appellant was that he did not touch Miss TE in the manner that she claimed she had been touched and he did not speak to her. If the evidence of the appellant is accepted that is the end of the matter. If the evidence of the accused is rejected it is still necessary to consider what inferences can be drawn beyond reasonable doubt from the evidence of Miss TE. Further, it is not possible to reject the appellant's evidence that he touched Miss TE but accept his evidence that he did not come into accidental contact with Miss TE.

[96] In my opinion the evidence of Miss TE is not sufficient to exclude the reasonable possibility that Miss TE was grabbed by accident or that it was reasonably necessary for the person who grabbed her to grab her on the waist as part of the common intercourse of life. The wave pool was in motion, it was crowded, the surface of the water was between Miss TE's waist and shoulder height, the grab was momentary and it occurred after she had been swept along by a wave, Miss TE did not see the person grab her, the person who may have grabbed her was on his knees and he said sorry as soon as she turned around. There is a reasonable possibility that the wave may have swept Miss TE into the path of the other person or that he may have lost his balance in the waves and grabbed her as a result or both.

[97] Further, Miss TE description of the person who grabbed her was not of a person who had a beard and she was not certain that the man in the Hotel Vibe Café was the person who grabbed her.

[98] Having reviewed the evidence and given due regard to the advantage enjoyed by the trial magistrate, I am of the opinion that the inadequacies of Miss TE's evidence are such that there is a significant possibility an innocent person has been convicted of the crime of aggravated assault upon her. The verdict of the magistrate cannot be supported by the evidence. I entertain a reasonable doubt as to the appellant's guilt of the charge of assault against Miss TE.

[99] The appeal against the appellant's conviction for the charge of assault against Miss TE should also be allowed on this ground. The conviction should be set aside and the appellant should be acquitted of the charge of assault against Miss TE and of each of the circumstances of aggravation.

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Judgment (192 paragraphs)

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Cases Cited (23)