Dreyer v R

District Court of NSW|2022-05-26|Before: Bell P

Introduction

On 23 December 2021, the appellant, Martin Dreyer, was found guilty of one count of inciting sexual touching contrary to s 61KC(b) Crimes Act 1900, and one count of sexual touching contrary to s 61KC(a) Crimes Act 1900, by her Honour Magistrate Hosking. The appellant brings an appeal as of right against each finding of guilt.
The appellant and the complainant were acquaintances and their mothers were friends. At about 5.00pm on Wednesday 29 July 2020, they met at the shops at Watsons Bay and decided to go for a walk on the South Head Heritage Trail at Watsons Bay. Between 6.30pm and 8.00pm, the prosecution case was that while seated on a park bench following a sexualised conversation, the appellant took the complainant's hand and placed it on his crotch and then shortly afterwards opened the fly on her jeans, placing his finger inside and rubbing the complainant's body on the outside of her underwear. After the incident, the appellant drove the complainant home. It was common ground that he drove erratically at some point during the journey. When the complainant got home she spoke to her mother about what had occurred.
The appellant denied that the acts took place and did not put intent or consent in issue. His evidence was that the complainant expressed sexual interest in him and placed her hand on his leg. He moved away telling her that he did not want a physical relationship.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
The requirement that the appellant demonstrate error does not reverse the onus of proof, in that the prosecution at all material times bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

Relevant directions

Section 293A Criminal Procedure Act 1986 provides: (1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant's account that may be relevant to the complainant's truthfulness or reliability. (2) In circumstances to which this section applies, the Judge may inform the jury-- (a) that experience shows-- (i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and (ii) trauma may affect people differently, including affecting how they recall events, and (iii) it is common for there to be differences in accounts of a sexual offence, and (iv) both truthful and untruthful accounts of a sexual offence may contain differences, and (b) that it is up to the jury to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability. (3) In this section --"difference" in an account includes-- (a) a gap in the account, and (b) an inconsistency in the account, and (c) a difference between the account and another account.

Analysis of the magistrate's reasons

The magistrate delivered a well-structured and comprehensive ex tempore judgment that contained appropriate statements as to the burden of proof, the standard of proof, the warnings that the magistrate was required to take into consideration and a comprehensive traverse of the evidence given by the complainant and the appellant.
The magistrate found the complainant's evidence to be wholly credible and that she was a witness of truth. The magistrate also found that the complainant's evidence was consistent with what she told her mother.
By contrast, the magistrate found the appellant's evidence contained "significant flaws" and that it was not plausible or believable.
The magistrate did not make any express finding based on the demeanour of either the complainant or the appellant as a witness.
At CB 167 line 47-48 the magistrate stated: There was no motive exposed for [the complainant] to have given evidence which was not truthful.
This is a matter for concern because an accused person bears no onus to prove that a prosecution witness has a motive to lie. It is impermissible for the tribunal of fact to speculate as to why a prosecution witness would lie or to accept the evidence of a prosecution witness because a motive for lying could not be identified: Brown v R [2008] NSWCCA 306 at [50] (McClellan CJ at CL). In the circumstances of this case where the appellant's guilt depended on an acceptance of the complainant's evidence to the criminal standard, the analysis of that evidence through a process of impermissible reasoning where I do not know what weight the magistrate placed on it, involves a miscarriage of justice that requires me to reconsider the evidence and the ultimate result for myself.

The appellant's submissions on the appeal

The appellant's arguments centred on whether the complainant's evidence could be accepted to prove the prosecution case beyond reasonable doubt, based on a number of differences in the account she gave in her statement, in court and/or to her mother. The appellant did not seek to demonstrate a reasonable doubt from his own evidence.
The first difference pointed to by the appellant was the location of the bench where the alleged offences occurred. On 21 June 2021, the complainant showed the police officer in charge of the investigation a bench located near the car park in Camp Cove at the start of the South Head Heritage Trail (the Trail), at the southern end of it. It was common ground that there were other benches to the north on the Trail that were more secluded, in that they were not as close to the Camp Cove car park or the road as the one indicated by the complainant. In cross-examination, the complainant gave evidence that the bench was towards the end of the walk, "Close to the lighthouse at the very end of the walk" and that they sat on that bench. She denied walking to the end of the walk but returning to sit on the bench at the southern end of the Trail, being the one that she later identified to the police.
The significance of the first difference was that the complainant's mother gave evidence that the complainant told her that the appellant deliberately took her to a place where "there were no people around", "a park bench with nothing else around. No people or restaurants. A dark and isolated place". The appellant also submitted that if the bench was close to the car park and the road as indicated by the complainant that she could have called out for help during the course of the assault, especially considering her evidence that she screamed at him when he made further advances in the car.
The second difference was that the complainant in her evidence in chief said that she told her mother "briefly what happened", "basically a short summary of what happened" and some of the details of what happened. In cross-examination, the complainant conceded that in her statement to the police that she stated, "Once I had calmed down I told Mum the details of what just occurred with Martin". The appellant submitted that the complainant did not tell her mother about any of the allegations that became the focus of the charges, being that he touched her left breast, placed her hand on his crotch or unbuttoned and unzipped her jeans and touched her underwear or that he tried to touch her again in the car.
In cross-examination, the complainant accepted that she did not tell her mother about the most serious of the allegations being the subject of the sexual touching offence. She also accepted that she did not give evidence in chief that the appellant placed downward pressure on her left shoulder while this occurred, but this was in her police statement.
The third difference was that she told her mother that the appellant tried to make a move on her for the whole 30 minutes that they were seated on the bench. In her evidence, the complainant said that there were times when they talked and there was no attempt by the appellant to touch her.
Overall, the appellant's submission was that there were multiple inconsistencies in the complainant's account to the extent that it was unreliable.

Consideration

There was nothing remarkable or unbelievable about the complainant's account of what occurred. She was subjected to a skilful cross-examination on detail that for the most part was minutiae. She denied fabricating the allegations of sexual touching and that she was the instigator of the sexual advance. Her evidence was relatively straightforward, and she made appropriate concessions. In some instances, the alleged difference between her evidence and what was alleged to be in her statement to the police was unclear. There was only one occasion where the relevant paragraph of her police statement was quoted to her for her to comment on. If there were differences in her account they were minor and adequately explained by the situations covered by s 293A Crimes Act 1900 and/or the stress of giving evidence in court.
In particular, different people react differently to traumatic situations. I do not find that the complainant's failure to call for help or to scream while she was on the bench and being touched without her consent to be significant. Further, the fact that she did not convey particular details in her evidence in chief or in the complaint to her mother does not cause me to doubt the veracity of her account. Giving evidence in court can be stressful and it affects people differently. In this case, the evidence was given by audio visual means in which the transcript recorded numerous problems with the quality of the audio and some allowance must also be made for the difficulties involved in the process of giving evidence in those circumstances.
The complainant also gave evidence that she found the process of giving evidence difficult and that it had caused her to forget some details, for example that the appellant had squeezed her left breast. In my view, the fact that there are some inconsistencies in the accounts given by the complainant is consistent with her giving a truthful account of what occurred.
The appellant sought to set up the complaint evidence as a prior inconsistent statement, but I am not satisfied that in the circumstances that it was for the reasons that follow. First, the complainant's mother gave her statement to the police about three days after the complaint was made to her. Her statement was tendered before the magistrate and she was not cross-examined. It is highly unlikely that her evidence was a complete or accurate recitation of what was said by the complainant. Whilst it was accepted at its highest by the appellant for obvious forensic reasons, I do not have to accept it as infallible or without question. In the application of common sense, it is highly likely that the complainant gave a version that was incomplete and subject to some interpretation and distortion by her mother when giving the version that appeared in her police statement. I am satisfied that the mother's evidence was a "rolled up" version of what she had been told and applying common sense that is a usual way of conveying things that a person is told. Whilst it may not be forensically ideal, it does not cause me to doubt the veracity of the complainant's account. I am satisfied that some elements of the mother's evidence were inferences drawn by her from what her daughter had told her and those aspects may not be reliable.
Second, when the complainant spoke to her mother she was seeking support and consolation and was unlikely to know that her mother may become a witness to her account of what happened on the bench. In other words, the complainant did not know at the time of making the complaint that she needed to be precise or to ensure that she gave an accurate recall.
Third, the complainant was upset. It was common ground that the appellant drove erratically on the way home and that the complainant was or was entitled to be worked up as a result. Further, if she had been touched in the manner she described this would have also been a reason for her to be traumatised and for her account to contain differences.
I am satisfied that there was an inconsistency in the complainant's evidence as to the location of the bench. In her evidence, she stated that the bench was at the northern end of the Trail, close to the lighthouse, but that was not the bench she identified to the police that was at the southern end of the Trail. It was suggested to her in cross-examination that they walked to more northern parts of the Trail before returning to sit at the bench at the southern end of the Trail, but she denied this. I am satisfied that she was mistaken in her evidence, but I do not think that much turns on it. It was common ground that they were seated on a bench on the Trial when the sexual advance (by either party) was made and it was common ground before the complainant gave evidence that the bench was located at the southern end of the Trail. I do not interpret the description of the place in her mother's evidence as excluding the bench from being at the southern end of the Trail.
Finally, the appellant's version of the events that it was the complainant who lured him to a secluded spot to make a sexual advance for the purpose of collecting as many sexual partners as possible, because her and her boyfriend wanted "fuck buddies" and to further her "personal bachelor quest" was implausible and unbelievable and I reject it in its entirety.
Having conducted an independent review of the evidence in the Local Court, I am satisfied that the complainant's evidence was truthful and credible, despite any minor differences in the accounts given by her and that her mother's evidence was consistent with the complainant's evidence. I agree with the magistrate's findings on the complainant's evidence and adopt them without restating them here and I come to that result without recourse to the impermissible reasoning identified.
I am satisfied beyond reasonable doubt that the prosecution evidence establishes the acts alleged in the offences and it follows that the appellant was correctly found guilty of them.

Conclusion

For the reasons, the appeal is dismissed and I confirm the orders of the magistrate.

Amendments 03 June 2022 - Last sentence of [1] to read: The appellant brings an appeal as of right against each finding of guilty.

[36] now reads, I am satisfied beyond reasonable doubt that the prosecution evidence establishes the acts alleged in the offences and it follows that the appellant was correctly found guilty of them.

Change of representation for the appellant 03 June 2022 - [1] now reads: On 23 December 2021, the appellant, Martin Dreyer, was found guilty of one count of inciting sexual touching contrary to s 61KC(b) Crimes Act 1900, and one count of sexual touching contrary to s 61KC(a) Crimes Act 1900, by her Honour Magistrate Hosking. The appellant brings an appeal as of right against each finding of guilt. 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: 03 June 2022

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Judgment (11 paragraphs)

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Cases Cited (7)