Director of Public Prosecutions (NSW) v Wright and the Local Court of New South Wales

THE EVIDENCE

1. The amended summons was supported by the following primary affidavits: 1. Raymond Bender of 25 March 2021; 2. Raymond Bender of 26 April 2021; 3. Dominique Anne Kelly of 28 June 2021; and 4. Dominique Anne Kelly of 19 August 2021.
2. Those four affidavits, along with the pleadings, were contained in a Court Book which was tendered without objection and marked exhibit "A".
3. In addition, the plaintiff read three further affidavits which went specifically to the notification which was given to the first defendant of the hearing of the proceedings, and to the service of relevant material, namely: 1. Douglas Scott of 23 August 2021; and 2. Two affidavits of Dominique Kelly of 24 August 2021.

THE FIRST DEFENDANT'S FAILURE TO APPEAR

1. As I have noted, the first defendant did not appear at the hearing. The evidence relied upon by the plaintiff established the following.
2. The proceedings were commenced by the filing of a summons on 17 March 2021. The summons was personally served on the first defendant at his residential address on 20 March 2021. [1]
3. The proceedings first came before the Registrar on 30 March 2021, at which time the first defendant did not appear. The proceedings were adjourned for further directions until 27 April 2021. On 13 April 2021, and again on 22 April 2021, the first defendant was informed, by correspondence sent to him by the plaintiff via express post, of the fact that the proceedings had been adjourned. [2]
4. On 23 April 2021 Senior Constable Bender personally served the first defendant, at his residential address, with a notice of the listing of the matter on 27 April 2021. [3] At the time of being served, the first defendant confirmed his contact number and his email address with Senior Constable Bender, and also informed him that he had in fact attempted to attend Court personally on 30 March 2021 when the summons was first returnable, but had been told on arrival that he was not able to personally appear and should have telephoned instead. [4]
5. When the matter came before the Registrar on 27 April 2021, the first defendant did not appear. The Registrar indicated on that occasion that she proposed to make orders listing the matter for hearing on 25 August 2021, and for further mention on 25 May 2021. [5] The first defendant was advised of these orders, both by email and in correspondence sent by express post, on 19 May 2021. [6]
6. When the matter came before the Registrar on 25 May 2021, the first defendant appeared by telephone. He told the Registrar that the proposed hearing date of 25 August 2021 was suitable and gave him "plenty of time" to seek legal advice from the solicitor who had appeared for him in the Local Court. [7] He also confirmed the correctness of the email address which he had previously provided to Senior Constable Bender. [8]
7. On 29 June 2021 the first defendant was served, by letter sent via express post, with the amended summons along with the plaintiff's written submissions. This correspondence was subsequently returned marked "unclaimed". [9] However, on 21 July 2021 the amended summons and written submissions, along with the principal affidavits of Ms Kelly in support of the summons (which annexed, amongst other things, the transcript of the evidence in the Local Court) were sent to the first defendant by email. [10] There is no evidence to suggest that this email was not received.
8. Further, on 27 July 2021, the amended summons was sent by express post to the first defendant, and confirmation was subsequently received that it had been delivered to the first defendant's nominated address. [11] That address was later confirmed by Senior Constable Bender by reference to the COPS system and records held with the Roads and Maritime Authority. [12]
9. On 18 August 2021, the first defendant was notified that in the event that he did not appear at the hearing on 25 August 2021, the plaintiff would seek to proceed in his absence. [13] On 22 August 2021, a copy of the amended summons, the plaintiff's written submissions and the court book index was left by police on the balcony of the first defendant's premises. [14] The following day, 23 August 2021, the first defendant was advised by email that an order for substituted or alternative service may be sought in the event that he did not appear at the hearing. [15]
10. Rule 10.14 of the rules confers a discretion on the Court to make an order for substituted service. In Wardle v Criniti's Castle Hill Trading Pty Ltd [16] I observed that in order to make such an order it is necessary for the Court to be satisfied that the method of substituted service sought is one which will, in all probability if not certainty, be effective to bring the knowledge of the proceedings to the defendant. In light of the evidence I have outlined, and particularly in circumstances where the first defendant appeared before the Registrar on 25 May and was aware of the hearing date, I am satisfied that the order for substituted service sought by the plaintiff should be made.
11. Further, and on the basis of the same evidence, I am satisfied that I should exercise the discretion in r 29.7(2) of the rules and proceed with the hearing in the first defendant's absence. In making that determination, I am satisfied that the first defendant has been given more than adequate notice.

THE CHARGE AGAINST THE FIRST DEFENDANT

1. On 13 November 2019 the first defendant was charged with an offence contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (the Act) which was pleaded in the following terms: [B]etween 12:30am and 12:00pm, on 9 September 2019, at Penrith [the first defendant] did sexually touch [MJ] without consent.
2. The proceedings against the first defendant came before the Local Court Penrith for hearing on 25 November 2020. Following that hearing, the charge was dismissed by the Magistrate.

The events leading up to the alleged offending

1. MJ (the victim) spent the greater part of the evening of 8 September 2019 driving the first defendant (whom she knew as "Bones"), her friend Kristen, and Kristen's boyfriend (Brandon) to various locations in the Penrith area, including a licenced club. As a consequence, she had not consumed any alcohol. Earlier that day, the victim had ended a relationship with her partner and had contacted Kristen to assist her in retrieving her personal belongings from her partner's premises. [17]
2. The victim gave evidence that during the evening the first defendant had made what she described as "advances" towards her, which she had rejected, [18] and which she described as: [19] Flirting with me, saying that, like, he wanted to get with me. I don't particularly remember the exact - I just remember that he advanced and I just declined. It was playful. It was like he was playful towards me and I was like, no, no, not interested. But-yeah.
3. When asked whether they were the actual words that she had said to the first defendant in rejecting his advances, the victim said: [20] I was very, very clear about the fact that I was not interested at all. But it was just - it was just, like, it wasn't intimidating or anything, like, it was fine at that point. He was just being playful at that point.
4. In circumstances where the victim had only recently separated from her partner, she did not have anywhere to sleep on the night of 8 September 2019. In her evidence, she was asked: [21] Q. I take you to 1 o'clock on Monday, which is early in the morning. Where did you go? A. I asked Kristen if I could stay at her house and she said no… and all of them suggested Bones's [sic] house. And he seemed fine, he seemed nice, like, he did make advances but he had stopped, so I thought it would be okay and everyone else was suggesting that I stay at his and so, I was like - I was, like, okay, I'm just coming over for a place to sleep. I was under the impression that there was two separate beds and I was, like, I'm not interested in sleeping with you or anything, I am just looking for a place to stay. I just need somewhere to stay because I didn't have anywhere else. Q. You thought there were two beds. Why did you think there were two beds? A. Because we had talked about what was in the house and he mentioned that there were two beds. Q. This is the information he is giving you that night? A. Yeah. Q. So, you went over to his address? A. Yes.
5. The victim explained that when she arrived at the first defendant's premises she realised that there was only one bed. [22] She was asked: [23] Q. Was anything said when you realised there was one bed? A. I said to him, okay, look I guess that there is one bed but it's a big enough bed. You can stay on your side, I can stay on mine, and I made it very clear, that's your side of the bed, that's my side of the bed and I'm just here to sleep, that's all I'm here for. I'm just here to sleep.

The alleged offending

1. The victim said that she went to bed fully clothed, [24] before describing what then occurred: [25] Q. As you got into the bed can you tell the Court what happened? A. I lied down on the bed and he lied down behind me and… (not transcribable) … and put his arm over my chest and so I was facing that way, and - - PROSECUTOR: Indicating hand palm down touching her breast, just around the armpit area from the breast. WITNESS: And I said to him, that's - don't do that, like, that's not what I'm here for. I'm just here to sleep. I said go to your side of the bed, go to your side of the bed. And then he - he, like, withdraw, like for a little bit, like, maybe like five minutes and then came back again and tried touching me again and so I curled up into the foetal position to try and cover as much of my body as I could and I said to him, no, like, don't touch me, just go to your side, that's your side off [sic] the bed, just stop, and - - PROSECUTOR: Q. Did he say anything to you when that was happening? You were saying no to him but did he say anything to you? A. He said, 'Come on', like he was trying to convince me to do it and I was saying to him, no, I don't want to. I don't want you to touch me. I just want a place to sleep, that's all I wanted. I just wanted somewhere to stay. Q. He was saying words to you like, 'Come on'? A. Yeah. Q. And you were saying, 'I don't want to?' A. Yes. Q. This was the first time you say he touched you on the breast? A. Yes. Q. Was he doing anything touching your breast or what his hand just on the breast? A. It was on my, like, nipples, and like I bashed it away to cover it and that's why I curled up into the foetal position to try to cover.
2. There was evidence of other events which occurred later that evening and on the following morning to which it is not necessary to refer for present purposes.

The Facebook messages between the victim and the first defendant

1. Between 9 September 2019 and 11 September 2019 the victim and the first defendant exchanged messages on Facebook in the following terms: [26] First Defendant: Hey meanie .… Are you all got somewhere to stay Victim: Yep. First Defendant: Ok good… What's up? Victim: I'm depressed and staying with a friend But just want to clarify there will never be anything between us and I'd appreciate if you remember that when interacting with me from now on. First Defendant: Your back with your ex I heard and ok sorry I bothered with someone so beautiful I'll leave you alone. Victim: I'm not back with him… it's just the fact you continued when I clearly declined you and told you to stop you made me seriously uncomfortable. First Defendant: I'm sorry I wasn't my self that night I just got over excited like look at you your beautiful sexy you have a cute laugh and your smile is amazing.
2. When taken to these messages in her evidence in chief, the victim was asked: [27] Q. Was this the conversation you had with [the first defendant] at the time? A. Yeah. This was I think about - it would have been that night, yeah, because he says he was wondering where I was going to be that night and I had no idea what I was going to do that night but I wasn't going to tell him that. Q. After those Facebook messages it's true to say that you blocked them from contacting you on Facebook at least? A. Yeah. Yeah, yeah. Q. Why did you do that? A. Why did I block him? Q. Yes. A. I didn't want nothing to do with him. I didn't not [sic] want anything to do with him. Q. At any stage did you give him any invitational encouragement in relation to his flirtations with you? A. No. I was always very direct. Q. And it was, you say, from the very first instance? A. Yes, from the very first flirt I said no, not interested. It's like, he's three times older than me. Q. And the reason why you didn't leave in the night was because you had nowhere to go? A. I had nowhere else to stay. I'd already tried contacting other people and they didn't want to take me I and I didn't have - I wasn't even on good terms with my family at that point. I didn't have anywhere to go. My friends - there were friends that I had planned to stay with that night, abandoned me at like 9 o'clock and said I wasn't allowed to stay there anymore, so I had already exhausted all of my options before even considering. Q. How did that incident in the bedroom when you stayed there and you fell asleep, how did that make you feel at the time? There was more than once [sic] advance and more than one rebuttal on your evidence. A. I was scared, but it could be words [sic]. If - if I'd slept in my car it could have been worse, like, something else could have happened. Better the devil you know than the devil you don't. And I was afraid of sleeping in my car.

The cross-examination of the victim

1. When cross-examined, the victim was taken to that point of the evening in which she had been in the car with the first defendant, Kristen and Brandon, and specifically to the subject of the first defendant's advances towards her: [28] Q. While you are in the car, you said, 'I'm horny and I want a fuck,' you said that in the car? A. I don't recall saying that specifically. I recall saying that I wanted to get laid but I did tell [the first defendant] that it wasn't by him. Q. Can I suggest that rather than being unhappy about the advances that you mention, you were in fact happy with his advances? A. No, not at all, no. Q. And you did not complain about these advances at the time? A. I did. Q. You did not tell the accused to stop what he was doing? A. I did. Q. You did not tell Kristen at the time? A. I did. Q. You complained to Kristen that there were unwanted advances by [the first defendant]? A. I said to him, no. Q. No, Kristen. A. Kristen. I don't recall really talking to her because she was arguing with Brandon. Q. And you did not tell Brandon at the time? A. Brandon wasn't anyone I knew. Q. But you knew him to be Kristen's' - - A. I knew that he was Kristen's boyfriend but he wasn't someone I was close to or that I would have conversations with. Q. You did not complain at the time because you were very happy to be receiving this type of attention from the accused? A. That's not the case. Q. Not only that, you were very happy to receiving this type of attention from the accused so soon after breaking up with your boyfriend. A. That's not the case. Q. Could I suggest that at the time of this incident you found the accused attractive? A. No. Q. And you made that known to him on that night in no uncertain terms? A. No.
2. The cross-examination continued: [29] Q. And during this time [the first defendant], as you know as Bones, made a number of unwanted advances? A. So, the advances happened on the walk between the car and to entering the league's club. They did not continue in the leagues club. Q. That is correct. But, yes, you did not complain to anybody about those advances. A. Well, because it was playful at the time, like, he stopped in the leagues club. Q. He was being playful? A. Yeah, he was being playful and I told him to stop and he stopped. Q. As soon as you told him to stop, he stopped? A. At that point, yes. Q. So, he didn't continue being playful after that? A. After that point not that I can recall around other people, no.
3. The victim said that she could not recall saying to the first defendant 'I'm staying at yours'. [30] She was then asked questions regarding the trip to the first defendant's premises: [31] Q. You were talking about his sex life with the accused in your car. You were alone in the car with the accused and you were discussing his sex life. A. I think I recall him saying how he hadn't been with a girl in a long time. But that's all I recall. Q. And the accused was being playful with you in the car? A. No. Q. And he was flirting with you again in the car? A. No. Q. You were flirting back with him? A. No Q. And then you decide to say let's go to yours? A. No. Q. The accused told you, 'I only have one bed'. Is that correct? A. No. Q. He didn't tell you he only has one bed in his house? A. He said that there were two beds. I think it was my misunderstanding that one of those was the roommates because I didn't realise. I think that was my misunderstanding. Q. At this point the accused has made a number of unwanted advances and he was flirting with you and being playful with you and you have never met him before? A. No. I haven't met him before. Q. You haven't met him before. What I just put to you, is that correct? He made unwanted advances? A. Yes. Q. He flirted with you, he was playful with you, yet you did not find him attractive at that point? A. I never found him attractive. Q. At all? A. Still don't. Q. Did you feel uncomfortable being around him at that time? A. After he - like, I had said to him, no, I'm not interested and he stopped, I was like, okay, I forgive you. He - he was like all right and that's when we just had regular and normal conversation.
4. The victim's evidence was that she had no realistic option other than to go to the first defendant's premises to sleep. [32] She was then asked: [33] Q. But you found the only viable option is to go with the accused, you have never met him before, who has made sexual advances towards you, who has flirted with you, who was playful with you, discussed his sex life with you and on your evidence today that he has told you he hadn't had sex in a long time. That was the only alternative you had? A. Well, he had stopped after we had had that issue, at first he had stopped. We had had normal conversation from then on until we got to his house and things changed, so I felt like I'd built a decent enough rapport. The other ideas that you're suggesting were either not viable or I was too scared to try them.
5. In relation to the incident which formed the basis of the charge, the victim was asked: [34] Q. So, you both eventually slept in the bed. The accused is now sleeping close to you and he places his arm around your chest area. He puts his arm around your chest area. Do you agree with that? A. So, he came up behind him [sic] and it wasn't - it wasn't just close, it was like skin-to-skin sort of thing. Like, I was close, but like - - Q. When you say skin to skin, you were both fully clothed? A. Yeah. Q. So, it's not skin to skin. A. It was very, very close. Q. Very close. I agree with you, it was very close. He placed his arm around you, around your chest area? A. Yes. Q. He has them very close to your nipple area? A. It was on them. Q. It touched your nipples? A. Yes. Q. And that happened for what? Two to three minutes? A. No. Q. A minute? A. No. Q. 30 seconds? A. Like, a second. Q. For one second he places his arm and hands around your chest and simultaneously touches your nipples and that only took one second? A. It was not a - like, you're making like it was a really long period of time that I just let it happen. No. As long as it took for me to react is as long as it happened for. Q. I'm suggesting to you that he placed his arms around your chest for two minutes and during that two minutes he may contact with your nipples. A. He did put his arm around me and he did touch my nipples. Q. Yes, and that happened for two minutes, thereabouts. …. HIS HONOUR: Q. Do you understand the question? A. Yes, and it took as long as it took for me to react. I don't know how long that reaction would take, but I don't think it would take two minutes.
6. Later in the cross-examination the victim was asked: [35] Q. As you're leaving you said to the accused, 'if you played your cards right, I would have helped you out'. A. No. … Q. You made all this up, didn't you? A. No. Q. And you made it up because of what your friends believed you did with the accused? A. No. Q. And that you were on a rebound and that you had reconciled with your boyfriend. A. No. Q. And when you reconciled with your boyfriend you were telling him nothing happened. You told him nothing happened between you and the accused? A. I told him what happened. Q. And to show him that you were telling the truth you went to the police and made this statement. A. No.
7. Subsequently, the victim was asked: [36] Q. You said - and I'm going back to that incident - that he spooned you. That's your word. A. That's what the position is called, yes. Q. I suggest to you that you pushed your bum towards the accused. A. I disagree. Q. And he pushed back towards you. a. I disagree. Q. And you told him, not interested, stop. A. I disagree. Q. And he stopped. A. I disagree.
8. Finally, the victim was cross-examined about the Facebook messages: [37] Q. So, your concern that if you were to see the accused again in public that you don't want him to interact with you. A. Yes. Q. That's what you're concerned about? A. I wanted him to acknowledge that what he had done - - Q. You didn't ask him to acknowledge - - A. I wanted him to know what he had done was wrong. Q. But I put to you that you didn't ask him in that text message that you wanted him to acknowledge what he did was wrong. A. Yes. By acknowledging that in the future I didn't want any of that because I would inevitably have come in contact with him because of Kristen, but him acknowledging that what he had done was wrong and that I didn't want any of that and he would just be normal after that, then I would be able to tolerate being - being - being in the situations where I would unexpectedly run into him with Kristen.

The first defendant's interview with police

1. The first defendant participated in a recorded interview with police, a transcript of which was tendered before the Magistrate. [38] He made no comment about the substantive allegations were put to him, [39] and made no comment about the content of the Facebook messages. [40]

The first defendant's case

1. The first defendant gave evidence before the Magistrate. In respect of the incident giving rise to the charge, he was asked the following: [41] Q. You laid down on the bed? A. Yeah. Q. And [the victim] laid down on the bed? A. Yeah. Q. Then what did you do? A. We had the light off. We talked for about five minutes and I put my arm around her. Q. Where did you put your arm around her? What part of her body? A. Yeah, I put my arm around her stomach at first and I didn't - I didn't play with her nipples or - - Q. You put your arm around her stomach first and then where did you place your arm? A. Sorry? Q. After you had your arm around her stomach, where did you place it after that? A. Yeah, I started playing with her nipple above the clothing. Q. She had her clothes on? A. Yes. Q. How long did it happen? A. It was about a minute, 30 seconds to a minute. Q. Then what happened? A. She told me to stop. Q. What did you do then? A. Stopped and then she just - then she rolled over.
2. As to the Facebook messages, the first defendant was asked: [42] Q. You also sent her a message apologising? A. Yeah. Q. Why was that? Why? A. I just felt like she - she wasn't messaging me much so I just thought - because I didn't like have any like thoughts of her doing this, like, because she wasn't acting like other people. I just like trying to reassure that I was looking after her and asking if she had anywhere to stay.

The cross-examination of the first defendant

1. In cross-examination, the first defendant agreed that he had told the victim that she was welcome to stay at his premises. [43] He also agreed [44] that he had engaged in "joking around and flirting" with the victim, which the victim had rejected. The first defendant was then asked: [45] Q. So, at no stage up until that offer was made, did she encourage you in any sexual advancement? A. On the drive back to mine she was asking about my sex life and when was the last time I'd had sexual contact with anyone. Q. There was no stage that she encouraged you or gave any advancement towards you in relation to your flirtation. Do you agree that? A. It was joking around. I wasn't just - - Q. At its highest, would you agree that it was playful interaction? A. Yes. Q. But when you flirted with her, she said no. A. Yes. Q. She laughed it off. A. Yes. Q. Do you agree with that? A. I just thought, yeah, she was just flirting around with me.
2. The first defendant was then asked: [46] Q. So, you would agree with me that she had at all points up until that point when you have offered her a place to stay, that she rejected all your advancements and that she was just going back to your place to sleep? You would agree that? A. Yeah.
3. In terms of the actual incident giving rise to the charge, the first defendant was cross-examined as follows: [47] Q. And she made it clear that she was going to sleep on one side and you were going to sleep on the other. Do you agree with that? A. Yes. Q. And at no stage did she say I want a cuddle to you. She never asked you for a cuddle, did she? A. No. Q. In fact, you took it upon yourself to put your arm around her. Would you agree with that? A. Yes. Q. And when you put your arm around her you touched her breast? A. Yes. Q. And then she pushed your hand away. You agree with that? A. Well, I was playing with her for about a minute until she pushed me away and said, 'No'. Q. Was it 30 seconds or a minute? A. I'd say there was about 30 seconds to a minute. Q. So, you've gone to a minute now, so it was a long period of time was it? A. Well, that's not a long period of time, no. Q. Counting to 60 in your head, that would be a long period of time, would it not be? A. No, not to me, no. It wasn't a - like, it wasn't quick touch and then she pushed me away. Q. But, out of fairness, you heard her evidence and that's what I'm going to put to [sic] what happened. As soon as you touched her breast and you touched her nipple, she pushed your hand away. A. Yes, that's what she said. Q. And that's what I'm saying what happened. Do you agree or disagree? A. I disagree. I just told you. Q. You're saying that you had your hand on her breast for a minute and she swatted your hand away after a minute? A. Yes. Q. And this is after she hadn't asked you to touch her in any way? A. She had asked me, no. Q. In fact, she was lying on the bed away from you. A. And she was lying on her back. Q. Lying on her back? A. Yes. … Q. It's not the case that you approached her in the bed and put your arm around her even on your own evidence was because you were seeking some sexual conclusions - - A. I don't see anything sexual about that. I just - - Q. Nothing sexual about putting your arm around her? A. No. Q. It was just a comforting cuddle, is it? How would you describe it? What was your intention of putting your arm around her? A. That's just how I sleep. Q. That's how you sleep? A. Yeah. Q. But when you sleep alone that's how you sleep? A. I have nothing put my arm around by myself. I was not being sexual when I put my arm around her. Q. You had already touched her nipple only a short period before that? A. Yeah, and she said no and I - - Q. You're asking the Court to accept there was nothing sexual in her [sic] touching her in between thrusting your hips towards her bottom and touching her nipple? There is nothing sexual in you - - A. No, I'm talking about after that. I put my arm around her and planned on going to sleep. There was nothing sexual about that. Q. Did you say, 'Come on, please,' to her? A. At what time? Q. During this time in the bedroom still? A. After I played with her nipple, yes. Q. You said, 'Come on, please,' to her? A. Yes. … … Q. What did you mean by that when you said, 'Come on, please,' after touching her nipple? A. From the flirting back and forth - - Q. This is the flirting which you have already agreed had been rejected and that she was coming back to your place just to sleep? A. Yes. Q. What flirting are you referring to if it's not that flirting that you already agreed didn't lead to anything? A. Well, it didn't lead to anything. I tried, I got rejected and I stopped. … Q. Let me get this right. You say she was lying on her back. You play with her nipple for a minute. A. Yes. Q. She then swats your hand off. A. Yeah. Q. She rolls over away from you. You say, 'Come on, please.' A. I said, 'Come on, please,' before she rolled over and then - and then there was - - Q. And she then said, 'No means no. You go to your side of the bed.' A. Yeah, that was while she was still lying on her back. Q. While she was lying on her back she says, 'No. Go to your side of the bed.' Is that right? A. Yeah. Q. But then when she rolls over to her side you go over to her side of the bed and you put your arm around her? A. I was still lying next to her. I hadn't moved. Q. So, when she said, "Go back to your side of the bed,' you didn't move? A. I was still next to her, yeah. Q. Just so I'm clear, she said, 'No means no,' you go to your side of the bed but you didn't move? A. No. Q. No. You put your arm around her. A. She rolled over and I put my arm around her, yes. Q. And you heard what [the victim] said and you would have seen her statement, but the fact of the matter is, is it not, that you said, 'Come on, please,' and that's when you tried to dry hump her? A. I didn't try and dry hump her. I felt her push against me so I pushed back once and nothing happened so I fell asleep.
4. At the conclusion of the cross-examination, the first defendant was asked: [48] Q. So, I put it to you again, sir, that in the bedroom that night she never encouraged any of your advances but you still persisted on touching her nipple. A. Yeah. Q. She never asked you to do that, did she? A. No. Q. She never encouraged you to do that? A. Yes. Q. She never encouraged you to do that, did she? A. No. Q. And the reason why you did all that is because you are highly attracted to her. Do you agree? A. Yes, yes, I was, yes.

THE ISSUE IN THE PROCEEDINGS

1. In the course of their respective addresses, both the police prosecutor [49] and the solicitor for the defendant [50] accepted that the sole issue for determination was that of consent. Regrettably, neither made reference to any of the statutory provisions which were relevant to determining that issue.
2. In the course of the prosecutor's address, his Honour observed: [51] I don't think there is any dispute as to the prosecution case in terms of the elements of the offence and what's suggested by the prosecution that would come within the definition of sexual touching. I don't think [the solicitor for the first defendant] will disagree with that. There is only one issue here. It's a question of consent.

Ground 1 - The Magistrate failed to identify and make findings and/or give reasons in relation to the two issues as to 'consent' that arose for determination, namely: 1. whether the prosecution had established that the complainant did not 'consent' (as that term is defined in s 61HE(2) of the Crimes Act 1900) to the alleged sexual touching, and, if so, 2. whether the prosecution had established that the defendant 'knew' (as that term is defined in s 61HE(3) of the Crimes Act 1900) that the complainant did not consent to the alleged sexual touching.

Ground 2 - The Magistrate failed to apply the terms of s 61HE of the Crimes Act 1900 to the resolution of the two issues as to 'consent' identified in ground 1 above

1. These grounds overlap and may be conveniently addressed together.

The Magistrate's reasons

1. In reasons which were delivered ex-tempore immediately following the addresses of the parties, the Magistrate recited the terms of the charge [52] before saying the following: [53] There are different elements of proof. There are different issues that the prosecution needs to prove beyond reasonable doubt. There is the issue of incitement. Therefore, I am firmly of the view that the only matter that is before this Court is an allegation under s 61KC(a) of sexually touching a person without consent and the facts around that offence are the incidents that occurred in the bedroom in the bed as described.
2. His Honour then summarised those facts which were not in dispute and went on to say: [54] [The victim] has told the Court that she felt that if the [first] defendant stayed on his side of the bed, and bearing in mind that she remained fully clothed, that she felt relatively comfortable staying there. Her decision to stay and to get into that bed, should never be construed under any circumstances by the [first] defendant or by any Court, for that matter, that that is some form of implied indication or consent that there will be further activity that will be consented to. That is not the case.
3. His Honour then identified what he perceived to be the issue in the case: [55] This case really gets down to a very narrow issue and it gets down to exactly what happened when the [first] defendant placed his hand on her breast, and on his own version and the two versions are pretty well consistent, he played with the victim's nipple. The only factual dispute is whether what occurred is the victim's version, and that is it that she immediately flicked his hand away, or whether it is the defendant's version, that it was for some 30 seconds or a minute, and that she said, 'Stop', and he immediately removed his hand. It is interesting that a case like this should really be determined perhaps in favour of the prosecution or for that matter in the favour of the [first] defendant on what happens in 30 seconds or [a] minute, and that is probably unrealistic evaluation of the facts of this case overall. But in reality, that is what it boils down to.
4. His Honour then said: [56] Because as [the first defendant's solicitor] points out, when the [first] defendant was told no he removed his hand immediately. That is not to say that the actions of [the victim] earlier, getting into bed and agreeing to stay the night, should have been inferred by the [first] defendant in any way as being any form of consent and the [first] defendant in the witness box more or less accepts that. This case is one where a young man, I think [the first defendant] is 31 years of age, something like that, a younger woman, 21 years of age, both fairly young and healthy adults, sure, she may have been vulnerable at the time because her relationship had just broken down, but two fairly young and healthy adults, it is not unusual under those circumstances for there to be advances made towards each other. There was some discussion of a sexual nature earlier in the day and I suppose [the first defendant] was, to put it in a colloquial sense, or put it bluntly, was trying his luck, and when he was told no, on his version he removed his hand. … In this case [the victim] apart from the fact that she got a little bit upset a few times, she impressed as a very forthright and honest witness. She gave me the impression that she was doing her best to remember the facts of what happened. We know that she made a relatively contemporaneous statement to the police in relation to the alleged offences and it seems that she has not been broken down in cross-examination in relation to her statement and there has been no suggestion made on some very minor and perhaps irrelevant issues, that there is any great inconsistency between the versions he [sic] gave initially to the police in her statement and the evidence she gave today and it is for that reason that the prosecution tendered her statement which I have no [sic] read and I have formed the view that the two versions are generally consistent. But having said that, [the first defendant] in the witness box also impressed as being a fairly honest and forthright witness. … He was forthright in relation to his evidence in relation to what happened in the night and, as I indicated earlier, there did not appear to be any great factual dispute in this case on a lot of the matters, other than what I indicated earlier what happened in a 30 second or one minute timeframe, whether it happened and there was an immediately rejection [sic] and an immediate, 'No', or whether his hand was there for a longer period, which may have interpreted as being some sort of permission to continue until that permission was withdrawn. Either way, at the end of the day, this is a case where the prosecution has got to prove the case beyond reasonable doubt. The overall circumstances of this case leaves [sic] me with an uncomfortable feeling that I could possibly find the offences proven purely on the evidence of [the victim]. This is a case where I do have a real concern in relation to the evidence and in relation to whether the prosecution has been able to prove the element of the lack of consent beyond reasonable doubt. Accordingly, this is an appropriate matter where the Court should dismiss the charges [sic].

Submissions of the plaintiff

1. In summary, senior counsel for the plaintiff submitted that in circumstances where consent had been identified as the issue in the proceedings: 1. there had been no finding made by the Magistrate as to whether the victim had or had not consented to the touching; 2. there had been no finding made by the Magistrate as to the first defendant's knowledge of any lack of consent on the part of the victim; 3. there was a complete absence of any reference by the Magistrate to relevant statutory provisions, from which it should be concluded that the Magistrate had failed to have regard to such provisions; and 4. to the extent that the Magistrate considered the issue of recklessness in determining whether the first defendant knew that the victim was not consenting, his reasons indicated that he reached a conclusion that the first defendant was entitled to be reckless as to any lack of consent on the part of the victim, and that such conclusion was contrary to law.

CONSIDERATION

1. The primary relief sought by the plaintiff is pursuant to s 56(1)(c) of the Review Act. That provision is in the following terms: Appeals as of right (1) The prosecutor may appeal to the Supreme Court against-- … (c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court.
2. As I have discussed further below, one of the submissions advanced by the plaintiff is that the Magistrate failed to have regard to, and apply, various statutory provisions governing the issue of consent. A failure to have regard to a statutory provision which governs the determination of an issue involves a question of law alone. [57]
3. Further, and apart from a number of specific errors, the plaintiff makes a more general complaint that that the reasons of the Magistrate were inadequate. Inadequacy of reasons amounts to an error of law. [58]
4. In all of these circumstances, I am satisfied that the plaintiff has an appeal as of right under the Review Act. For the reasons set out below, I am satisfied that the various errors for which the plaintiff contends have been made out.

The failure to give adequate reasons

1. I turn firstly to address the general complaint that the Magistrate failed to give adequate reasons for his determination to dismiss the charge.
2. The giving of reasons is an incident of the judicial process. [59] In Beale, [60] Meagher JA observed that whilst a statement of reasons need not necessarily be lengthy or elaborate, it must include a number of fundamental components, namely: 1. references to relevant evidence; 2. an articulation of material findings of fact; and 3. an exposure of the reasons, expressed in a form which is both understandable and logical, and which explain firstly, the findings of fact which have been made, and secondly, the conclusions which have been reached after applying the law to such facts as have been found.
3. In emphasising that a statement of reasons must be both understandable and logical, his Honour observed [61] that at a bare minimum, a statement of reasons must be such as to place the parties in a position where they understand why the decision was made.
4. In Pollard v RRR Corporation Pty Ltd [62] McColl JA reviewed a number of the authorities dealing with the obligation to give reasons from which her Honour extracted (inter alia) the following propositions: 1. the giving of reasons is a matter which lies at the heart of the judicial process, and a failure to provide sufficient reasons promotes a sense of grievance, and denies both the fact and the appearance of justice having been done, thus giving rise to a miscarriage of justice; [63] 2. a court considering the decision of another court or tribunal should not be left to speculate, from collateral observations, as to the basis of a particular finding or findings; [64] 3. the extent and content of reasons will depend upon the nature of the case under consideration, and the facts in issue. Although a judicial officer is not obliged to articulate every detail of the process of reasoning which leads to a finding, it is essential that he or she expose the reason(s) for determining any issue which is critical to the contest between the parties; [65] 4. it is fundamentally necessary that a primary judge deal with the issues which have been canvassed, and explain why one part of the evidence has been preferred over another; [66] and 5. it is not sufficient to merely set out the evidence adduced by one side, set out the evidence adduced by the other, and then assert, in a bald conclusionary statement, that having seen and heard the witnesses he or she prefers or believes the evidence of one over the other. It is necessary to explain why the evidence of one witness is preferred to that of another. [67]
5. These principles were generally applied by Gleeson JA in Keith v Gal. [68]
6. Whilst I fully acknowledge that the Magistrate's reasons were delivered ex-tempore, immediately following the evidence and the addresses, in what was no doubt a busy Local Court, those circumstances did not relieve his Honour of the obligation to give reasons which satisfied the principles that I have identified. In my view, his Honour's reasons fell short of what was required in a number of respects.
7. There was no issue in the proceedings that the victim had been sexually touched. As I have noted, in the course of the prosecutor's final address the Magistrate identified consent as the "one issue" which he was required to determine. It is curious in these circumstances that in the course of his reasons that the Magistrate referred, at one point, to "the issue of incitement". [69] It was not part of the prosecution case that the first defendant had incited anything.
8. Having identified consent as the "one issue", the Magistrate then observed that there were "different issues" that the prosecution was required to establish beyond reasonable doubt. [70] At no point in his reasons did the Magistrate identify what those "different issues" actually were.
9. Accepting that it was not in issue that the victim had been sexually touched, proving the issue of "consent" (as the Magistrate categorised it) required the prosecution to establish, beyond reasonable doubt that: 1. the victim did not consent to the sexual touching; and 2. the first defendant knew that the victim did not consent to the sexual touching.
10. The Magistrate's reasons did not identify either of those issues. Given the ultimate determination that the charge should be dismissed, it is to be assumed that the Magistrate was not satisfied of one or the other of these elements. If his Honour he was not satisfied of the first, then the second would not arise for consideration. The final passage of his Honour's reasons, whilst not expressed as a definitive conclusion, tends to suggest that he was not satisfied of the first of those elements. That said, the very fact that I am left to speculate in that important respect serves as an indicator of the inadequacy of the reasons generally.
11. In circumstances where the victim gave unequivocal evidence that she had not consented to the sexual touching. However, it would appear from the final passage of the reasons that the Magistrate rejected that evidence. Leaving aside the fact that it is not for an appellate court to make assumptions about, or to speculate as to, what findings were made, his Honour's reasons are deficient in two fundamental respects. Firstly, bearing in mind that the issue of consent was critical to the contest between the parties, it was necessary for his Honour to expose his findings of fact in relation to all aspects of that issue, and to do so in terms which were both understandable and logical, and which explained why (if it was in fact the case) that the victim's evidence was rejected. His Honour's reasons are, with respect, bereft of a clear articulation of any factual finding(s) in respect of either aspect of the issue of consent. Further, his Honour was required to articulate his ultimate conclusions which were reached after applying the law to the facts which he had found, and to expose his reasons for those conclusions. The reasons are bereft of the exposition of any reasoning process at all.
12. On this basis alone, the plaintiff is entitled to the relief sought.

Error as to the necessity for the victim to communicate her lack of consent

1. Towards the conclusion of his reasons [71] the Magistrate queried whether the victim had immediately rejected the first defendant when he placed his hand on her breast, or whether the first defendant's hand "was there for a longer period, which he may have interpreted as being some sort of permission to continue until that permission was withdrawn". Whilst it is difficult to ascertain what was meant by that passage, his Honour's reference to "some sort of permission to continue until that permission was withdrawn" tends to suggest that he concluded that there was some necessity on the part of the victim to communicate her lack of consent, in order for the defendant to have knowledge of the fact that she was not consenting.
2. Such an approach reflects error. Section 61HE(9) of the Act, to which the Magistrate did not refer, makes it clear that a person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity. It was not necessary for the prosecution to prove that the victim communicated her lack of consent to the first defendant. [72] In apparently reaching a contrary conclusion, the Magistrate erred.

Error as to recklessness

1. The Magistrate's reasons [73] included an oblique reference to the "flirting" which had taken place between the victim and the first defendant earlier during the evening. This was followed by his Honour's observation that in touching the victim on the breast the first defendant had been "trying his luck" before (on his version) removing his hand. On the victim's account of what had happened earlier in the evening, [74] she had not encouraged the first defendant in any way at all.
2. If a defendant is aware of a real possibility that a complainant does not consent to sexual touching, he acts recklessly if, having that knowledge, he decides that he will proceed in any event. [75] On the victim's evidence, she had made it clear to the first defendant that she did not consent. It is not apparent from the Magistrate's reasons what conclusion was reached about that evidence. However, if that evidence is accepted, what the Magistrate was describing in terms of the first defendant's actions was, as senior counsel for the plaintiff put it, "quintessential recklessness".
3. In my view, this passage of the Magistrate's reasons tends to indicate that his Honour formed the view that defendant was somehow entitled to be reckless as to whether the victim was consenting. Such a conclusion is fundamentally at odds with s 61HE(3)(b) of the Act and reflects error.
4. There is one further observation which should be made about this aspect of the matter. The victim of this alleged offending was a 21 year old girl. It is evident from the transcript of her evidence, and indeed from the Magistrate's own observations, [76] that she found both the incident, and the process of giving evidence and being cross-examined about it, quite traumatic. None of that is surprising in the least. The Magistrate was under an obligation to conduct the hearing in a manner which struck an appropriate balance between preserving the right of an accused person to (inter alia) test the evidence, and exhibiting an appropriate level of appreciation and understanding of the victim's position, and exhibiting an appropriate level of respect to her. The latter aspects of that obligation extended to the terms in which any decision was expressed. Leaving aside the various errors that I have identified in the Magistrate's reasons, his categorisation of the actions of first defendant in touching the victim's breast as being tantamount to the first defendant "trying his luck" was demeaning of, as well as offensive and insensitive to, the victim. It was also an entirely inappropriate term to adopt for the purposes of describing an act which may amount to a serious criminal offence. In my view, the use of such terminology has no place whatsoever in the determination of any allegation of sexual offending, and should be avoided.

Error in failing to consider the steps taken by the defendant as to consent

1. Section 61HE(4)(a) of the Act required the Magistrate, as the trier of fact, to have regard to all the circumstances of the case, including any steps taken by the first defendant to ascertain whether the victim was consenting to the sexual activity, for the purpose of making a finding about his knowledge concerning the victim's consent. That was a material consideration. [77]
2. In R v Lazarus, [78] with the concurrence of Hoeben CJ at CL and Davies J, I said the following: [142] In R v XHR [2012] NSWCCA 247 Beazley JA (as her Honour then was) concluded (at [51]) that in light of the terms in which the section is cast, a trial judge, when directing a jury, must instruct the jury that they are to consider the reasonable steps taken by an accused person to ascertain whether the complainant was consenting. … It is sufficient if a trial judge's reasons demonstrate, either expressly or by implication, that such a principle has been applied: Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at [52]. However, if that is not demonstrated, an appellate court should conclude that the principle was not applied, as opposed to concluding that it was applied but not recorded: Fleming at [30]; see also Adams v R [2017] NSWCCA 215 at [286]; [289]-[292].
3. Although the proceedings against that respondent involved a charge contrary to s 61I of the Act, this statement of principle is no less applicable in the present case.
4. There was evidence that the victim had told the first defendant (inter alia) that she only wanted to sleep. The Magistrate's reasons do not give any indication whether he accepted or rejected that evidence. In any event, there was no evidence of any steps taken by the first defendant, reasonable or otherwise, to ascertain whether the victim was consenting to the sexual touching which assumed some significance in the context of s 61HE(4)(a). The Magistrate made no reference to s 61HE(4)(a). His Honour's reasons do not otherwise reflect that any consideration was given to that provision. I am left to conclude that the principle identified in Lazarus was not applied. In all of these circumstances a further error is established.

ORDERS

1. For the reasons I have outlined, I make the following orders: 1. Pursuant to r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) the amended summons filed in these proceedings on 21 July 2021 is taken to have been served on the first defendant on 28 July 2021. 2. Pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) I direct that the hearing proceed in the absence of the first defendant. 3. Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) the order made in Penrith Local Court on 25 November 2020 dismissing proceedings against the first defendant for the offence of sexually touch another person without consent contrary to s 61KC of the Crimes Act 1900 (NSW) is set aside. 4. The proceedings are remitted to the Local Court to be heard and determined according to law. 5. No order is made as to costs. 6. The solicitor for the plaintiff is directed to arrange for a copy of this judgment to be personally served on the defendant by 5.00 pm on 3 September 2021.

Endnotes

1. CB 139; 146.
2. CB 146.
3. CB 143.
4. CB 143.
5. CB 147.
6. CB 148.
7. CB 193 - 194.
8. CB 192 - 194.
9. CB 196 and following; 208 and following; 256 and following.
10. CB 221 and following.
11. CB 243 and following.
12. CB 259.
13. CB 260.
14. Affidavit of Douglas Scott of 23 August 2021.
15. Affidavit of Dominique Kelly of 24 August 2021.
16. [2020] NSWSC 894 at [17].
17. CB 47.43 - 49.16.
18. CB 49.17 - 49.18.
19. CB 49.23 - 49.26.
20. CB 49.29 - 49.31.
21. CB 50.19 - 50.38.
22. CB 51.4 - 51.8.
23. CB 51.13 - 61.17.
24. CB 51.25.
25. CB 51.40 - 52.26.
26. CB 58.42; Exhibit 2 at CB 108 -111.
27. CB 59.9 - 59.47.
28. CB 63.47 - 64.41.
29. CB 65.22 - 65.39.
30. CB 67.13 - 67.14.
31. CB 67.28 - 68.22.
32. CB 68.24 - 69.22.
33. CB 69.24 - 69.32.
34. CB 71.22 - 72.27.
35. CB 75.14 - 76.11.
36. CB 77.11 - 77.25.
37. CB 78.42 - 79.16.
38. CB 112 - 129; Exhibit 3.
39. Q&A 73 - 103; CB 120-125.
40. Q&A 110 - 114; CB 126.
41. CB 82.26 - 84.8.
42. CB 86.42 - 86.49.
43. CB 88.2.
44. CB 88.11 - 88.24.
45. CB 88.26 - 88.45.
46. CB 89.33 - 89.37.
47. CB 90.12 - 94.18.
48. CB 97.41 - 98.6.
49. CB 98.43.
50. CB 100.30.
51. CB 98.37 - 98.41.
52. CB 101.20 - 101.32.
53. CB 101.35 - 101.40
54. CB 102.41 - 102.47
55. CB 102.49 -103.10
56. CB 103.12 - 104.17.
57. R v XHR [2012] NSWCCA 247 at [59]; R v IL [2016] NSWCCA 51 at [46] - [59].
58. Beale v GIO of New South Wales (1997) 48 NSWLR 430 at 444 per Meagher JA.
59. See for example Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
60. At 443.
61. At 444.
62. [2009] NSWCA 110 commencing at [56].
63. At [57].
64. At [56].
65. At [58]
66. At [59].
67. At [64] - [65].
68. [2013] NSWCA 339 at [113].
69. CB 101.36-101.37.
70. CB 101.35-101.36
71. CB 104.1 - 104.8 in the passage at [51] above.
72. XHR at [46] - [47].
73. CB 103.22 - 103.24 in the passage at [51] above.
74. Particularly at CB 59.21 - 59.31.
75. R v Banditt [2004] NSWCCA 208 at [92] per James J (Bryson JA and Kirby J agreeing).
76. CB 103.35.
77. XHR at [59] - [62].
78. [2017] NSWCCA 279 at [142]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2021