J J M H v Bonde [2020] TASSC 24

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.

Judgment Number: [2020] TASSC 24

1. By this motion the applicant challenges his conviction on one count of indecent assault. The applicant was charged on complaint with three counts of indecently assaulting his stepdaughter. The respondent is a police officer. Indecent assault is an indictable offence: Criminal Code, s 127. The applicant elected to have the charges heard before a magistrate: Justices Act 1959, s 72(1)(a). The hearing took place before magistrate Mr S Brown over a number of days in late 2018 and early 2019.
2. The complainant was born in April 2000. At the time of the hearing she was 18. The prosecution case was that, during the course of a single evening in 2011, the applicant indecently assaulted her by touching her on the vagina with his fingers and then by placing a vibrating object on her vagina. Those allegations formed the basis of the first two counts on the complaint. The remaining allegation, count 3, was that, on an occasion particularised as having occurred between October 2012 and October 2015, the applicant indecently assaulted the complainant by touching her vagina with his fingers and by touching her breasts with his fingers and mouth. The applicant contended that no indecent touching occurred.
3. The learned magistrate's assessment of the credibility and reliability of the evidence of the complainant and the applicant was central to the case. On 5 March 2019 the learned magistrate found that counts 1 and 2 on the complaint were not proved, but found the applicant guilty of count 3.
4. The applicant challenges the conviction on three grounds, that:

(a) the learned magistrate erred in fact and in law in holding that, upon the whole of the evidence, count 3 of the complaint was proved beyond reasonable doubt;

(b) the learned magistrate erred in fact and in law in convicting the applicant where, on the evidence before the learned magistrate, no magistrate acting reasonably could have found the charge proved beyond reasonable doubt; and

(c) the learned magistrate erred in fact and in law in failing to specifically identify the occasion and/or specific acts said to be the basis of the finding of guilt on count 3 of the complaint.

1. To protect the identity of the complainant I will refer to her mother, the witnesses and others referred to in evidence by fictitious names. The prosecution witnesses were the complainant, her mother Rachel Johansson, and two of the complainant's friends. An audio visual recording of a police interview of the applicant conducted on 30 May 2017, along with some documents, were tendered as part of the prosecution case. The applicant gave evidence in his defence.
2. The complainant was 5 when her mother and father separated in 2005. There is one other child from that relationship, a boy born in 2004. Mrs Johansson met the applicant in 2007 or 2008. They commenced a relationship and before long he moved into the unit in which she lived with her children in a small town near Launceston. They married in November 2009. They had a child together, Marcus, born in August 2010. Mrs Johansson worked at a local store. She returned to her job a few months after Marcus was born, at which time the applicant became the primary "stay at home parent". The complainant shared a room in the unit with the older of her two brothers and they slept on bunk beds. She attended school in another small town not far away.
3. It was alleged that the first indecent assaults occurred in the home in which the family lived near Launceston. The complainant gave evidence that in 2011, when she was in grade 5, there was a day on which she was home from school because she was sick. Her mother was at work but the applicant was there. The complainant's evidence was that Marcus, who was still a baby, was in the house. She said she was reclining on a couch, wearing pyjamas, watching a movie on television when the applicant came to sit beside her. He placed her legs across his lap. He began to tickle her feet before slowly bringing his hands up her legs until he put his hand inside her pyjama trousers and underpants. She said he "started to play around with my clitoris area, using two fingers from memory, in circular motion, round and round, and then he also started to play around my vaginal area but he never entered". He then went to the bedroom he shared with the complainant's mother. She heard a drawer open. When he returned, he "sat back down and then he put something on my clitoris and it started to vibrate". Her evidence was that she did not see what it was, and nothing was said throughout the indecent touching. The conduct stopped when someone knocked on the door. A person she knew arrived, and stayed for about 15 minutes. After that person left, the complainant said, "everything went back to normal." It was the first time that the applicant had done anything like that to her.
4. The prosecution was permitted, without objection, to lead evidence of other uncharged conduct. The complainant gave evidence that, following the first instance of touching, the applicant came into her bedroom about twice every month, after everyone else was in bed, and touched her clitoris and vagina with his fingers. On each occasion she pretended to be asleep and did not make known to him that she was awake.
5. The complainant's evidence was that she said nothing about what was happening until just before the family moved to live in a town on the east coast of Tasmania. After an argument with the applicant, and "sick of being treated the way I was treated", she approached her mother. Her mother was about to leave for work. She told her mother that the applicant "had been touching me inappropriately on my private parts". Her belief was that her mother talked to the applicant about what she had said, but the applicant denied any such conduct and claimed that she was attempting to drive them apart. Her evidence was that, after her mother had left, the applicant told her that unless she told her mother that what she had said was a lie he would "hurt her". When her mother returned from work, the complainant told her that "I made it all up because [the applicant] and I had a fight and I said it out of anger and that it never happened at all." Her mother told her "not to lie about that stuff again because it's quite serious".
6. Rachel Johansson's evidence of the approach her daughter first made to her was that it occurred in the bedroom of their unit. She said that it was before Marcus was born. If that were true it must have been before August 2010. She said her daughter approached her just as she was about to leave for work, saying that she needed to talk. According to Mrs Johansson her daughter said "he's been touching me". Mrs Johansson's evidence was that her daughter "pulled her knees towards her chest and wrapped her arms around her knees, so then with a very scared look in her eyes, she then said to me, she pointed to her breasts, sorry, and her vagina". Mrs Johansson told her daughter that she had to get to work and that they would talk about it again when she got home. She said that she immediately "fronted" the applicant but he denied any improper conduct. He told her that there had just been an argument between him and the complainant about a pair of glasses, and that she was "lying to get her own way". When Mrs Johansson returned home from work she talked to her daughter again. By then, she said, the complainant was "adamant that she was making it up to get [the applicant] into trouble." According to Mrs Johansson, when she asked the complainant whether she was sure, the complainant was "very convincing" that she had made the allegation up. Nothing more was then said or done.
7. In 2011 the family moved to a town on the east coast where Mrs Johansson had obtained a more senior position of employment at the local supermarket. The applicant remained the principal stay at home carer. By 2012 they had moved to a different house in the same town. The complainant had her own room. The complainant's evidence was that, from 2013 when she was in grade 7 at school, indecent touching resumed and continued. She said that, in addition to touching her clitoris and vagina, the applicant began to touch her breasts. She said "he would use his hands and his fingers and he would fondle and play around with my nipple and then at one stage he also used mouth-to-mouth contact with my nipples". The touching, she said, occurred at night when the applicant came into her room, and he used a "tablet device" to light the room. According to the complainant, the touching "started around 2013 and went to about 2015". When asked to be more specific about when the applicant used his mouth on her breasts for the first time, she answered "It would have been towards 2015 because that's when my breasts started to develop more." When asked whether, on the occasion that the applicant touched her breasts with his mouth, other touching also occurred, she answered "Yes, it all happened on the same day." The touching of her breasts lasted about "two minutes, not very long", but all of the touching occurred for "around about five minutes". The complainant's evidence was that the touching she described occurred about "five times a month, quite often", from 2013 until her mother broke up with the applicant in 2015.
8. When the complainant was asked whether she had told anyone about what had been happening, she answered that in 2014 she told her friend Adrienne Saunders that "he'd been touching me on my vagina and my breasts and I also told her that he used a vibrating device when I lived in [the place where she had lived in 2011]". The complainant also gave evidence that she told another friend, Harry Fitzgerald.
9. As to whether she said anything to her mother, the complainant told the magistrate that, after another argument with the applicant, which occurred before the end of 2015, she went to her mother's bedroom. She told her "I'm being sexually abused and that when I told you that it happened in [the town near Launceston] and I said that it was a lie, but it wasn't a lie and that it actually did happen and it's continuing on now." The complaint's evidence was that she told her mother that she was being touched on her vagina, clitoris and breasts. According to the complainant, about 15 minutes after her disclosure to her mother, the applicant came to her room and said "if he has to take a fall for the family then that's what will happen and ... he apologised to me and said that he was sorry". No further touching occurred after that day.
10. In cross-examination the complainant agreed that the relationship between her mother and the applicant ended in June 2015, but she did not go to the police until September 2016. She also agreed that in the statutory declaration she made at that time, she told the police that the incident on the day on which she stayed home from school occurred about a year after the applicant moved in with her mother, and when her mother was pregnant with Marcus.
11. The complainant's friend, Adrienne Saunders, gave evidence. She is a year younger than the complainant and they came to know each other after the complainant moved to the east coast through school and through a recreational club. Her evidence was that on an occasion which she thought was in mid-2016, because Ms Saunders was 15 at the time, the complainant told her that her stepfather was treating her and her brothers badly, and explained that the applicant was "molesting her". When Ms Saunders asked the complainant what she meant by "molesting her" she answered "touching my private parts" while holding up her hand and wiggling her fingers. According to Ms Saunders, the complainant told her it happened "in her room at night and he would touch her vagina" but could not remember if anything else was said. Ms Saunders also gave evidence that the complainant told her that she had also told her friend Harry Fitzgerald. When cross-examined, Ms Saunders also agreed that the complainant said to her that she had also told another male friend, whom she named. That person was not called as a witness.
12. Harry Fitzgerald gave evidence for the prosecution. He told the magistrate that he and the complainant met at school and became good friends. They, with Ms Saunders, were members of the same recreational club. They often communicated by mobile phone. He saw arguments between the complainant and the applicant but no evidence was led from him about her having made any allegations of sexual misconduct to him. When cross-examined he stated that he had no recollection of any such allegation, but that he "would have remembered" if any such allegation had been made. He agreed with the proposition that the complainant had "never mentioned anything about [the applicant] doing anything."
13. Rachel Johansson gave evidence and was cross-examined about what her daughter said to her on the second time she was approached. Her evidence was that it occurred in 2013 or 2014. She described how, after an argument between her daughter and the applicant, her daughter blurted out to her "He's been sexually abusing me." The comment was heard by the applicant who said, more than once, that it was "bullshit". She asked her daughter whether she was telling the truth, having said before that she had made up a similar allegation, and her daughter responded:

"I'm telling you the truth mum. I was the first time. [The applicant] bullied me to make you believe that it all, to tell you that I had made it up."

1. Mrs Johansson told the magistrate that, immediately after the discussion with her daughter she confronted the applicant in the bungalow at the back of their house. She said that, when she walked in, he had loud music playing, and was leaning over a letter from his father crying. He had stabbed a knife through the letter into the wooden table. When she asked him to tell her the truth he told her that he would be "up in five minutes". When he returned to the house Mrs Johansson sat in the room with the complainant also present, but "we couldn't resolve anything. He was adamant; she was adamant". She described his repeated denials, but said that he also made a comment which she said she found "disturbing": that "I'll fall on my sword for the sake of keeping the family together if that's what I have to do."
2. According to Mrs Johansson's evidence, her daughter slept in her bed that night. They discussed what should be done. Mrs Johansson said that they would "need to go to the police and move out of the home", but the complainant responded "We can't do that mum, we can't afford to move out." She asked her daughter if the applicant had "used his penis" to which she replied, "No just my breast and my vagina and clitoris."
3. When cross-examined, Mrs Johansson's evidence about when the second complaint was made to her changed. She agreed that she remained with the applicant only for another six months, and it was after then that the police were notified. She said that she made no approach to the police because she decided to wait until her daughter was "emotionally ready". In fact, she said the police were not notified until she confided in her parents about what the complainant had told her, and it was her parents who went to the police. Moreover, according to Mrs Johansson, it was not until after her separation from the applicant that the complainant said anything more to her about the first incident.
4. In his police interview, and in his evidence, the applicant denied any indecent touching. In cross-examination he admitted having made, when confronted by his wife on the second occasion, a comment about "falling on his sword". However he claimed to have used the words incorrectly, that he was severely depressed and what he meant was that "it was basically due to me wanting to commit suicide".

1. Grounds 1 and 2 raise the same issue. There is a very long line of authority in this State that a review of a conclusion of a magistrate based on evidence can only succeed if it is established that the decision of the magistrate was not open to him or her, as a reasonable person: Bedelph v Weedon [1963] TASStRp 9; [1963] Tas SR 69; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117; Leonard v Newell [1983] TASRp 11; [1983] Tas R 78; Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7]; Phillips v Arnold [2008] TASSC 6, 17 Tas R 199, affirmed in this respect by Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Murray v Maingay [2008] TASSC 18 at [13]; Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173 at [59]. It is not an appeal by way of rehearing, and I am not entitled to weigh the evidence and reach my own conclusions. As was explained by Brett J in Shepperd v Cannell [2018] TASSC 12, at [16], after referring to the reasons of Crawford J (as he then was) in Wood v Smith [1991] TASSC 12, at [26]-[27], in cases which depend upon the magistrate's assessment of the credit of witnesses, and his or her acceptance of their evidence, the Court must pay due regard to the advantage which the magistrate has of observing the witnesses.
2. Thus, to succeed on these grounds, the applicant must establish that the learned magistrate erred, as it was not open to him to be satisfied beyond reasonable doubt of the applicant's guilt. Put conversely, I may allow the motion only if persuaded that on no reasonable view of the evidence could the learned magistrate have failed to have entertained a reasonable doubt of guilt. In submissions, although not in the grounds of appeal, the applicant contended that the decision of the learned magistrate was unsafe and unsatisfactory, and relied on the test enunciated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487. In Phillips v Arnold [2008] TASSC 6; (2008) 17 Tas R 199, Evans J considered the nature of a motion to review on this ground at [10]-[13]. The conclusion his Honour reached was affirmed on appeal, although the Court of Criminal Appeal overruled his Honour on a different ground. As to the nature of the test to be applied his Honour, after referring to the judgments of Cox CJ in Australian Securities and Investments Commission v Hosken and Green CJ in Kelly v O'Sullivan, stated at [12]:

"Consistent with the above, there is no justification for confusing the statutory test for invoking the jurisdiction of this Court on a notice to review with that which invokes the jurisdiction of the Court of Criminal Appeal, or with what has been described as a common law test. Such an endeavour was made and rebuffed in Hajdu v Brown [2007] HCATrans 245 (24 May 2007). In that case, the applicant, who was seeking special leave to appeal to the High Court against the outcome of a notice of review pursuant to the Justices Act, s107(4), contended that the primary judge had employed the wrong test in deciding whether the convictions under review were unsafe, unsatisfactory, or unreasonable. In dismissing the application for special leave, Hayne J, agreed with by Crennan J, said:

'[The applicant] contends that an appeal would require consideration of what he described as "the correct approach and application of the common law test formulated in [M v The Queen [1994] HCA 63; (1994) 181 CLR 487] applied to a summary finding of guilt".

The relevant question presented by the applicant's notice to review under the Justices Act was whether there was an error or mistake of fact. This Court's decision in M v The Queen was directed to the different question of whether, in the terms found in the common form criminal appeal legislation, there has been, on any ground, a miscarriage of justice. Although what is said in M v The Queen may provide some assistance in deciding whether a court of summary jurisdiction has made an error or mistake of fact, the ultimate question is presented by the relevant statutory provision, not a "common law test"'."

1. Application of those principles to this appeal makes plain that the decision of the learned magistrate was open to him. The hearing concluded on 21 December 2018. The learned magistrate gave his decision with detailed oral reasons on 5 March 2019. His Honour found the complainant to be an impressive witness but, in light of the contest between the respective versions of the complainant and the applicant, and the absence of corroborating evidence, determined that he was not satisfied beyond reasonable doubt of guilt on counts 1 and 2. His Honour reached a different conclusion for count 3. He placed significance on the complaint evidence given by Ms Saunders. The magistrate commented that the evidence of the applicant's possession of a tablet or similar device tended to confirm the complainant's evidence. His Honour referred to the account given by the applicant in his evidence of occasions on which he admitted entering the complainant's bedroom and the reasons he advanced for doing so. His Honour stated that he observed what he regarded as a significant change in the applicant's demeanour when giving that account. Although not stated in these terms, it is obvious that the magistrate regarded that evidence as undermining the veracity of the applicant's evidence.
2. I would accept the applicant's contention that there were reasons why the magistrate may have entertained a reasonable doubt about the count he found proved. The learned magistrate had experienced a reasonable doubt about the complainant's evidence concerning counts 1 and 2. His Honour was entitled to take that into account in his assessment of the remaining charge. The complainant was, across all of the counts, giving evidence about events which occurred years earlier. There was conduct capable of being viewed as inconsistent with the truth of her account: her withdrawal of the first complaint, and the absence of immediate complaint about any of the applicant's conduct. It was open to the magistrate to view the reason she advanced for not approaching the police following the second complaint to her mother, financial reasons, with caution. There were some inconsistencies between the evidence of the complainant and Ms Saunders about the terms of the complaint. The magistrate commented that the applicant's denials were unshaken. The applicant gave an explanation, consistent with innocence, for his comment about "falling on [his] sword". It was open to his Honour to find inconsistency between the evidence of the complainant and Mr Fitzgerald about whether anything was said to him about the applicant's conduct. The applicant's possession of an electronic device like a tablet, whilst consistent with the complainant's evidence, was also consistent with innocence. It can be accepted that, in general, it is difficult to reliably draw an inference of guilt from a change of demeanour.
3. However, none of those observations necessitate the conclusion that the findings made by the learned magistrate were not open to him. He was entitled to accept the direct evidence of the complainant as credible and reliable. The finding that the first two counts on the complaint were not proved beyond reasonable doubt did not necessarily involve rejection of the complainant's evidence. Her evidence on the remaining count was supported by evidence of the complaint to Ms Saunders and to her mother, and other circumstantial evidence. The magistrate had the advantage, not enjoyed by this Court, of hearing and observing the witnesses. It was proper for him to consider the combined force of all the evidence. If this were a re-hearing the applicant's motion may have had a greater prospect of success. However, the magistrate's decision was, as a reasonable person, open to him. It follows that this ground must fail.

1. This ground contends that the learned magistrate erred in fact and in law in failing to specifically identify the occasion and/or specific acts said to be the basis of the finding of guilt on count 3 of the complaint. It is submitted that his Honour did not "specifically identify" the conduct he found the applicant had undertaken, and thereby did not provide adequate reasons for his decision.
2. In my opinion, this ground is not made out. The proposition that the failure to give sufficient reasons may amount to error is well established. However, the applicant's contention is confined to the failure to sufficiently identify the act or acts found proved. The only fair and proper reading of the learned magistrate's reasons is that, immediately prior to stating his conclusion that count 3 was proved, his Honour was making findings about the conduct alleged in that count. Put slightly differently, his Honour considered whether count 3 on the complaint, as it was particularised, was proved. At the hearing there was no claim that the count was not adequately particularised. It charged the applicant with, between 8 October 2012 and 2 October 2015, having assaulted the complainant by "touching her vagina with [his] fingers and touching her breasts with [his] fingers and mouth". At the outset of his reasons, the magistrate expressly identified the conduct which was the subject of the charge. He then summarised all of the relevant evidence in some detail, including the complainant's account of the facts which formed the basis of that charge. His Honour recounted her evidence in these terms:

"... he would come to her room at night, when the house was quiet and everyone else appeared to be asleep. She said that he would touch her on the clitoris and vagina as he had before, and that he would also touch her breasts. She said that on one occasion, he had used his mouth on her nipples as well as touching her on the clitoris, vagina and touching her on the breasts with his hands ...".

1. After referring to all of the evidence, his Honour turned to his conclusions and findings. After stating that he had found counts 1 and 2 not proved, his Honour made clear that he was then dealing with count 3. In light of the terms of the complaint, and the content of the earlier part of his Honour's reasons, there was no requirement for his Honour to re-state what conduct he found to have occurred as a result of having found that count proved. If it is assumed, as I am satisfied was the case, that his Honour sufficiently stated the criminal conduct he found proved, any remaining contention about the sufficiency or otherwise of his Honour's reasons falls away.

1. Neither ground of the motion is made out. The motion to review is dismissed.