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1. By an Amended Notice of Appeal filed on 5 March 2026, Jasbir Jasbir appeals against a decision of a Magistrate in which he was found guilty of attempting to commit an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT). Attempting to commit an offence is defined in s 44(2) of the Criminal Code 2002 (ACT) as conduct that is more than merely preparatory to the commission of the offence attempted.

2. There is no argument here that the conduct complained of, if proved beyond reasonable doubt to have occurred, would amount to an attempt to commit an act of indecency without consent.

3. On being convicted, the Appellant was fined $800.

The Prosecution case

4. The Prosecution case is as follows. On 31 May 2024, the Complainant and her friend, Ms Ottilia Mashavave, were staying together in room 728 of the Midnight Hotel in Canberra and ordered food to be delivered by Uber Eats.

5. The Appellant, who was a driver for Uber Eats, delivered the food to the Complainant. CCTV footage from the hotel shows that the Appellant arrived at the hotel just before 10pm, rang the intercom and was admitted. CCTV footage then shows him entering the lift.

6. The Complainant said that the Appellant knocked on her door and, when she opened it, he was there with her food order. As she took the food from the Appellant, he put his hand over the back of her neck and attempted to kiss her. She ducked to avoid contact and shut the door.

7. Shortly afterwards, the Appellant knocked again on the apartment door, which was opened by the Complainant. At that time, the Complainant’s friend recorded the exchange on her phone. In the exchange, the Appellant apologised to the Complainant.

8. CCTV footage shows the Appellant leaving the hotel. He went to his car and took out cans of drink. He returned to the external door, was admitted and went to the Complainant’s door, where he knocked. The Complainant did not open the door. However, the conversation between the Complainant and the Appellant was partly recorded by the Complainant’s friend. In that exchange, the Appellant apologised to the Complainant and offered her “complimentary drinks”. She did not open the door. The Appellant left.

9. The Complainant called the police shortly afterwards and they attended the hotel and took statements from the Complainant and her friend. The exchange between the Complainant and the attending police was recorded on a police officer’s body-worn camera.

10. There was no dispute in the matter that the Complainant ordered the food through Uber Eats or that the Appellant was the person who delivered the food to her at the Midnight Hotel.

The evidence before the Magistrate

11. The Prosecution called the Complainant, Ms Mashavave and Constable McDonald.

The Complainant’s evidence

12. The Complainant said that she and her friend ordered food through Uber Eats and when the food arrived, she let the driver up so he could deliver it. She said that when she opened the door to receive the food, the Appellant grabbed her on the back of her neck with one hand, put the other hand on her waist and “tilted his head, basically pouting getting ready for a kiss”. She said she ducked away. The Complainant said that, had she not ducked away, he would have been able to kiss her. She said he was some centimetres away from her face.

13. The Complainant said to him: ‘What are you doing? What are you doing? … ‘Don’t do that … ‘You’re here to deliver my Uber Eats, not do all that. I don’t know what you’re doing’ ...

14. She closed the door. Having shut the door, the Complainant turned to her friend and said: ‘… Did you see that? I’m not sure if you saw that, but this guy tried to kiss me’ … ‘This Uber Eats guy just tried to kiss me’ …

15. She said that the Appellant then knocked on the door, was apologising and said: ‘I’m so sorry about that. If I offended you in any way, I apologise. This is just the way that we say thank you.’

16. The Complainant said that she responded: ‘No, that’s not okay. You’re an Uber Eats driver. All you’re meant to do is deliver my food and that’s about it. You’re not supposed to touch anybody …’

17. The Appellant left. A short while later, the intercom rang again and the Complainant said that she was confused, thinking she had ordered more food. The person at the door said, “Uber driver”. She said she buzzed the person in because she thought that perhaps it was another Uber Eats driver.

18. There was a knock at the door. The Complainant said that she asked who it was at the door and received no answer. She asked a second time and the Appellant responded: ‘It’s just a complimentary gift from Uber. We’re here to deliver you a complimentary drink’

19. The Complainant said she responded that she did not order any drinks and that, when he continued to speak, she realised it was the Appellant at the door. She decided to record what was said.

20. Although this third time the Complainant did not open the door, she believed it was the Appellant at the door because he was insisting they open the door to give them the drink. After he left, the Complainant opened the door and no drink was left at the door.

21. The Complainant was cross-examined. She said that it was after she reached out to take her food that the Appellant put his hand on her neck and tried to kiss her.

22. Although the Complainant could not remember it, her friend’s filming showed that she opened the door the second time the Appellant knocked and the Appellant apologised.

23. In relation to the third time the Appellant came to the door, the Complainant agreed that there was some discussion with her friend over whether the friend had ordered food using her own Uber Eats application and so, when the intercom rang the third time, they thought it might be more food being delivered.

24. The Complainant agreed that she did not tell the police when they spoke to her on the night of the incident that, when the Appellant put his hand on her neck and waist, he was “pouting his lips as if he was coming to kiss [her]”. She said that she was in shock and must have left it out.

25. There was a suggestion to the Complainant that the Appellant did not use the word “complimentary” when attempting to deliver the drinks. She denied that and said that she believed that the Appellant was trying to apologise and was saying “let me give you these free drinks”.

26. In relation to the Appellant’s touching of her neck, the Complainant said she ducked under his arm to move away from him so he could not kiss her.

27. The Complainant said that she and Ms Mashavave had ordered drinks before the food arrived and, when they called the police, she tidied the drinks away because she did not want the police to think they had been drinking and “making up stories”. She wanted to look professional.

28. The Complainant’s friend Ottilia Mashavave then gave evidence.

Ms Mashavave’s evidence

29. Ms Mashavave referred to the Complainant ordering the food from Uber Eats, receiving a notification that the driver was there, buzzing him in and him coming to the door. Ms Mashavave said she was about five steps away from the door when the Appellant knocked. She said she could see the Appellant and what happened. She said that, after he gave the Complainant her food, he grabbed the Complainant at the back of her neck and, from where Ms Mashavave was sitting, it looked like he actually kissed the Complainant. She saw the Complainant duck away. She described the Appellant’s actions as grabbing the Complainant at the back of her head and then pushing himself towards her and pushing her towards him like he was trying to kiss her.

30. Ms Mashavave said that the Appellant started apologising, saying he was “sorry”, from outside the door.

31. Ms Mashavave and the Complainant then discussed what had happened. When the Appellant returned to the door, Ms Mashavave began recording what was being said.

32. After the Appellant left again, Ms Mashavave and the Complainant discussed reporting what had happened to the police.

33. Ms Mashavave said that there was then another knock on the door and, through the door, the Appellant said something like “There’s a gift for you from Uber Eats” and “there’s a complimentary for you”. She said to leave it outside the door and the Appellant said, “No, you need to open the door”.

34. Ms Mashavave was cross-examined.

35. Ms Mashavave said that before the Appellant came to the door with the food, she and the Complainant had ordered a 10-pack of Vodka Cruisers. They had consumed one drink each. Ms Mashavave had put the rest in the fridge to keep cold for the next day. While the box which had contained the drinks was in view in one of her recordings, she said that it was empty.

36. In relation to the interaction between the Appellant and the Complainant, Ms Mashavave said she was behind the Complainant but on an angle. She said she had a clear view because the door opened in a way that allowed her to see who was at the door.

37. As to when the Appellant returned the third time, Ms Mashavave said that he used the words “complimentary from Uber Eats”. Constable McDonald’s evidence

38. Constable McDonald produced the CCTV footage from the hotel and documents produced by Uber Eats. The electronic Record of Interview with the Appellant was also tendered through her.

The Appellant’s version of events

39. The Appellant’s version of events is contained in an interview recorded by the police some six months after the incident. The Appellant said that he remembered the incident because his account with Uber Eats was cancelled very shortly afterwards, which caused him particular financial stress.

40. He said that he went to the door of the apartment where the Complainant was staying to deliver the food and, when the door was opened, saw two or three other people there. He handed the food to the Complainant. The Appellant said that the Complainant said something to him. He could not exactly remember the words, but he said they were like the allegations put to him by the police in the interview, that is, that he had tried to hug and kiss her. He said that was not his intention. He denied he had touched her. He said that he was allowed to put the order at the door because it was busy and he seemed to say that he may have been bending down to leave the food at the door when it opened and he was leaning towards the Complainant to do that.

41. In the interview, the Appellant said at first that, having delivered the food, he left and made other deliveries. However, on being shown the film taken by Ms Mashavave on his return to the door, the Appellant said that he apologised profusely and assured the Complainant that he was “not like that”. He said that he did not mention returning to the door of the apartment because it was a long time ago, but once he was shown the video, he remembered.

42. The Appellant said he apologised if the Complainant felt he had been too close to her or she felt he had done something wrong. He said his intention was not “like that” (referring to touching the Complainant) and he knocked on the door to apologise.

43. The Appellant agreed that, when he returned a third time, he was carrying alcohol. He said that, on returning to the car, he looked at his phone and discovered that there was a delivery of alcohol to be made to the same apartment number at the hotel and that was why he again approached the Complainant. In this encounter, he said he rang the intercom at the hotel and told the Complainant that he had a delivery. He was let up. He knocked on the door and the Complainant said the delivery was not for her. He denied that he said that the drinks were complimentary. He said he completed the delivery and then left. CCTV footage shows him returning to his car with the drinks.

The submissions before the Magistrate

44. The Prosecution submitted to the Magistrate that while there may be some inconsistencies in detail between the accounts of the Complainant and Ms Mashavave, they could be explained by the passage of time and were in any event not inimical to the credibility of the Complainant.

45. For the Appellant, it was submitted that the Complainant’s account was not credible. Counsel for the Appellant noted that while the Complainant said that she ducked to avoid a kiss from the Appellant, Ms Mashavave said she believed he did kiss her. He compared the way in which each described what had happened and submitted that Ms Mashavave’s description of the event suggested a forceful touching, whereas the Complainant’s description did not. It was argued that in her first statement to the police, the Complainant did not refer to the Appellant’s lips pouting as if ready to kiss her as he put his hand on her neck. It was further submitted that, while both the Complainant and Ms Mashavave said they had earlier purchased alcohol, the Complainant said they put it away before the police came because they did not want the police to conclude they had been drinking whereas Ms Mashavave said she had put the alcohol in the fridge to keep it cool for the next day and the box visible in the video was empty.

46. The Prosecution argued that the Appellant’s account of what happened should be rejected as not being credible. The Prosecution argued that his account was internally inconsistent and did not make sense. First, the Appellant did not mention that he had presented himself at the Complainant’s door three times and it was not until he was shown the film taken by Ms Mashavave that he mentioned the two subsequent encounters. Further, the Appellant said that as soon as he delivered the food to the Complainant he left and attended to his other deliveries. The Prosecution submitted that the Appellant lied when he failed to mention that he had made three trips to the Complainant’s hotel room and his subsequent explanation for the third interaction showed consciousness of guilt. The Prosecution also submitted that the Appellant’s profuse apologies to the Complainant were inconsistent with his assertions that he did not touch her and did no more than stand close to her and revealed consciousness of guilt.

47. The Appellant’s counsel argued that the Appellant was apologising if the Complainant was upset, not apologising for something he had done, such that the apologies did not show consciousness of guilt. He submitted that errors in the Appellant’s recollection in the Record of Interview, which occurred six months after the incident, did not show consciousness of guilt or lies.

The Magistrate’s decision

48. After summarising the evidence and submissions, her Honour directed herself as to the usual directions and in accordance with the decisions in Liberato v The Queen [1985] HCA 66; 159 CLR 507 and De Silva v The Queen [2019] HCA 48; 268 CLR 57. Her Honour directed herself that: (a) if a defendant provides a plausible version of events either in person or by way of an interview which is inconsistent with guilt, she must dismiss the charge; (b) if she rejects a defendant’s version of events, she still must be satisfied beyond reasonable doubt of the defendant’s guilt; and (c) a defendant’s evidence is accorded no less weight than other witnesses because he is the defendant and no adverse inference can be drawn from his not giving evidence in the hearing.

49. Her Honour also directed herself as to fact-finding.

50. Turning to the submission made by the Prosecution that the Appellant lied in his evidence and this demonstrated a consciousness of guilt, her Honour directed herself in terms of Edwards v The Queen and R v Cook. (Her Honour did not give the citations for the cases mentioned but it is apparent that the cases being referred to were Edwards v The Queen [1993] HCA 63; 178 CLR 193 and R v Cook [2004] NSWCCA 52).

51. Her Honour then turned to the Appellant’s command of English, noting that it is not his first language but that she was satisfied that an interpreter was not required for the conduct of the hearing. However, she took into account that while his English was sufficient to ensure a fair trial, his proficiency in English may have impacted his responses and the way he expressed himself in the Record of Interview.

52. Turning then to the evidence of the Appellant, her Honour said that his initial failure to recall or at least mention his return to the hotel and the Complainant’s hotel room the second time could be explained by the passage of time. However, her Honour said that the Appellant “purported to recollect why he went back to the same apartment, not having recollected going back in at all, which seems less plausible and an attempt to retrospectively explain his conduct”.

53. Her Honour found the Appellant’s evidence about the alcohol delivery in which he said he delivered the alcohol was at odds with him being seen leaving the hotel with the alcohol in his hands. Her Honour noted that the Complainant told the Appellant that the alcohol was not for her, yet he insisted on delivering it. Her Honour found that this was not a logical explanation for his third attendance at the apartment.

54. Turning to the apologies, her Honour considered them to be “profuse”. Her Honour noted that, during the exchange with the Complainant, the Appellant did not deny having attempted to hug and kiss her, although he was clearly aware of that allegation. While her Honour considered that this might be attributable to cultural differences, she found it unclear why the Appellant was apologising to the extent he did.

55. While her Honour did not find that the Appellant’s evidence about returning to the Complainant’s apartment with the alcohol and his profuse apologies were consistent with consciousness of guilt, she was unable to accept that the Appellant’s account of the encounter with the Complainant was reliable and found his evidence to be “confusing, self-serving and ultimately unpersuasive”. She therefore rejected it.

56. Her Honour then put the Appellant’s evidence to one side.

57. As to the Complainant, her Honour found that her account of what happened was inconsistent with an accidental touching or some incidental physical proximity as it involved the intentional action of the Appellant touching the Complainant’s neck.

58. Her Honour found the evidence of the Complainant to be compelling and clear, noting that the fact that the Complainant had forgotten that Ms Mashavave had filmed two of the three encounters did not undermine her credibility. Her Honour took into account that the Complainant had, independently of the film, recalled the exchange she had with the Appellant and her recollection was supported by the filmed encounter.

59. Although the Complainant did not mention to the police that she saw the Appellant pouting as if to kiss her, her Honour found that this description was consistent with her complaint made to the police that the Appellant had attempted to kiss her.

60. Her Honour rejected the inferences as to “wrongdoing” suggested by the Appellant’s counsel concerning the alcohol in the Complainant’s apartment or whether she was with family or NDIS clients, concluding that there was no evidence to support them and, in any event, they were irrelevant to the complaint against the Appellant.

61. Her Honour found the Complainant’s evidence was closely corroborated by the evidence of Ms Mashavave in that Ms Mashavave described the Appellant placing his hand on the Complainant’s neck and her head being moved forward to a kiss. Ms Mashavave also saw the Complainant duck to avoid contact. Her Honour considered Ms Mashavave’s evidence that the Appellant did kiss the Complainant to be referrable to the angle at which she saw the encounter. Equally, her Honour considered that Ms Mashavave’s description of the Appellant using force to move the Complainant’s head was a reflection of the position from which Ms Mashavave saw the events.

62. Her Honour accepted the Complainant’s evidence as supported by Ms Mashavave and was satisfied beyond reasonable doubt that the Appellant placed his hand on the Complainant’s neck and attempted to kiss her, which she avoided by ducking out of the way and retreating into the apartment.

63. Her Honour found that the Appellant’s conduct was more than merely preparatory to the act of kissing the Complainant and involved interfering with the Complainant’s bodily integrity. She found beyond reasonable doubt that it constituted an “attempt”. She found that kissing a stranger on the face is an intimate act which, without consent, amounts to indecency.

64. Her Honour found the offence proved.

Grounds of appeal

65. The ground of appeal in the Amended Notice of Appeal filed on 5 March 2026 is that the finding of guilt was unreasonable and/or not supported by the evidence.

66. On 17 July 2026, the Appellant filed an application in proceeding seeking leave to rely on amended grounds of appeal, which were annexed to an affidavit filed on the same date. The application stated that the Appellant sought to rely on the amended grounds because he was no longer represented by a solicitor. The proposed amended grounds were as follows: (a) her Honour erred in her consideration of the evidence of the Appellant and in coming to the view that it should be rejected; (b) her Honour erred in her assessment of the credibility and reliability of the Complainant and supporting witness; (c) her Honour erred in rejecting innocent explanations advanced by the Appellant which were consistent with his innocence; (d) her Honour erred in her assessment of the recorded conversations and the significance attributed to the Appellant’s apologies; (e) her Honour erred in treating the Appellant’s failure to recall aspects of the events during the police interview as evidence adverse to his credibility; (f) her Honour failed to adequately consider the possibility of honest mistake, misunderstanding or misperception on the part of the Prosecution witnesses; and (g) having regard to the whole of the evidence, the verdict was unreasonable and could not be supported beyond reasonable doubt.

67. In written submissions in the appeal proceeding, the Prosecution did not oppose a grant of leave to the Appellant to amend the grounds of review.

68. While not developed during the hearing, it is appropriate that leave be given.

Further evidence

69. The Appellant was unrepresented on the Appeal. He asked that the video filmed on the body-worn camera of the police who interviewed the Complainant be admitted. He said that, in the film, the Complainant gestures in describing what had happened and that the gesture is inconsistent with him having tried to kiss her.

70. The Prosecution observed that the film also contained discussions between the police and the Complainant about court procedures and other matters which would be inadmissible but agreed that the film could be edited to show the part on which the Appellant wished to rely.

71. Subsections 214(3) and (4) of the Magistrates Court Act 1930 (ACT) provide in respect of adducing further evidence on an appeal from a decision of a Magistrate: (3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of justice— ... (iii) receive the evidence, if tendered, of any witness; and (b) receive evidence with the consent of the parties to the appeal. (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

72. Here, there was no objection by the Prosecution to the tender of the edited film, and it was admitted. Consideration

73. This is an appeal brought pursuant to s 208(1)(b) of the Magistrates Court Act. The Court of Appeal has outlined the principles to be applied in such appeals in Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [13] and [18], where the Court said: 13. Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56]. … 18. Accordingly, an appellant may succeed in an appeal under s 214 of the [Magistrates Court Act] by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.

74. In considering this appeal, it is important to give due deference to the advantage of the Magistrate who saw and heard the witnesses give evidence. The advantage was expressed by McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]: 31. … The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.

75. Turning then to the submissions on the appeal. Although the Appellant appeared for himself, he filed written submissions which clearly showed he had some legal assistance. The Prosecution also provided written submissions.

76. The submissions of the Appellant contend that the Magistrate made a factual error in rejecting the reasonable possibility that the Complainant and Ms Mashavave misinterpreted what occurred at the door when the food was delivered. That is, the appeal asserted an error of fact by the learned Magistrate in accepting them as credible witnesses and concluding the offence proved beyond reasonable doubt. Arguments on the appeal

77. Overarching the Appellant’s arguments was the submission that when the evidence is considered as a whole, the Prosecution had not excluded the reasonable possibility that the Complainant and Ms Mashavave misinterpreted the Appellant’s movement at the time of the food delivery and were mistaken in thinking that he had attempted to kiss the Complainant.

78. The submissions grouped the appeal grounds into four principal categories: (a) the rejection of the Appellant’s exculpatory account of the events; (b) the reliability of the evidence of the Complainant and Ms Mashavave; (c) the Magistrate’s consideration of the Appellant’s apologies and return to the Complainant’s apartment without regard to his explanations for that conduct; and (d) whether on the whole of the evidence, the finding of guilt is supported beyond reasonable doubt.

Rejection of the Appellant’s account and innocent explanations

79. While conceding that his answers in the Record of Interview were imprecise and hesitant, the Appellant argued that he maintained throughout the interview a denial that he had attempted to kiss the Complainant.

80. It was argued that Magistrate rejected the Appellant’s evidence based on his defects in recollection without considering that they did not affect his denial of wrongdoing.

81. The Magistrate was careful to take into account that while the Appellant was able to take part in the hearing without an interpreter, difficulty in language may have had an effect on his answers in the Record of Interview. Equally, the Magistrate did not consider that the Appellant’s failure to recount the last two times he presented himself to the Complainant’s door impugned his credit adversely, referring to the lapse of time between the events and the making of the interview. She was, however, critical that while the Appellant said he failed to mention returning to the hotel with the drinks because he did not remember it, he was then able to provide an explanation for that return which her Honour found implausible. In making that finding, her Honour noted that despite saying in his interview that he completed the delivery of alcohol, he left with the drink.

82. Her Honour said that the Appellant’s account was difficult to understand. She noted that he denied any wrongdoing, but he accepted that he may have been too close to the Complainant or inadvertently touched her hand.

83. Her Honour considered his profuse apologies, including that they may have been attributable to cultural differences, and said that it was unclear why he was apologising even though he denied the conduct. The Magistrate found that although the Appellant knew what the Complainant’s allegations were after the first encounter, when he returned to the door a second time apologising “profusely”, he did not then deny the conduct. This conclusion was clearly open to her on the evidence.

84. It was argued that the Magistrate failed to take into account the Appellant’s innocent explanation for the incident. While the Appellant denied in his Record of Interview that he had tried to kiss the Complainant, nowhere did he say what movement he made which was misinterpreted by the Complainant, although he suggested that he might have been bending down to leave the food at the door. While the Appellant hypothesised what might have happened, he gave no evidence about what he did. In those circumstances, it would be difficult for the Magistrate to assess his explanation.

85. It is important to note that during the cross-examination of the Complainant, it was suggested that as she took the food from the Appellant, he made a forward movement towards her. She denied that. It was suggested that he made a forward movement of his head “like he was bowing his head”. This was also denied. Neither of these two suggested movements were mentioned by the Appellant in his Record of Interview.

86. The Appellant’s written submissions conclude: The innocent account did not require the Magistrate to find precisely what accidental movement occurred. It was enough that a reasonable possibility existed that the appellant leaned or moved close while handing over the order, that the complainant ducked in response, and that both witnesses honestly interpreted the movement as an attempted kiss.

87. Where the Appellant himself did not say what movement he made when he handed over the food that the Magistrate might have interpreted as innocent, it is hardly surprising then that her Honour could not evaluate it.

88. It is important too to note that nothing in the Appellant’s Record of Interview explains what movement he made which could account for both the Complainant and the witness saying that the Appellant put his hand behind the Complainant’s neck.

89. The Appellant’s evidence did not support or provide a plausible explanation for the conduct described by the Complainant and her witness. Her Honour made no error in failing to accept that there was an innocent explanation. Credibility and reliability of the witnesses

90. The Appellant’s submissions contend that the Magistrate failed to take into account the “material limitations and inconsistencies” in the evidence of the Complainant and Ms Mashavave.

91. First, the submissions note that there were empty alcohol bottles in the apartment. The submission incorrectly asserts that both witnesses said that the drinks had been “concealed” before police attended to appear more professional. The Magistrate is criticised for concluding that the witnesses had consumed only one drink each. This submission should be rejected. Ms Mashavave said they had one drink each before putting the bottles away and it was not suggested to either the Complainant or Ms Mashavave that they had consumed more than one drink each. Ms Mashavave said she put the drinks away to keep them cool and the box visible in the film was empty. The Complainant said she did not want the police to think they had been drinking and making up stories, so tidied the drinks away to appear more professional. In either event, no submission was made to the Magistrate as to what relevance, if any, attended the Complainant and Ms Mashavave having drinks in the apartment or how their accounts of why the drinks were not visible had any impact at all on their reliability. The Magistrate quite correctly dismissed the argument that in some way this impugned the Complainant’s reliability.

92. The Complainant accepted that she did not tell the police when she was interviewed by them that, as the Appellant came toward her, he was “pouting” with his lips as if to kiss her. She said that she was in shock because of what had happened. The Appellant argued that the Magistrate failed to explain how, despite that omission, she considered the Complainant’s account to be reliable.

93. The Magistrate’s reasons as to the reliability and credibility of the Complainant were extensive. In them, she considered not only what the Complainant said but the manner in which the Complainant gave her evidence. Important to her credibility was that while she did not recall Ms Mashavave recording the second encounter with the Appellant, her evidence given without having seen the recording was consistent with the recording. Also important to the Magistrate’s assessment of the Complainant’s credibility was that her account was closely supported by that of Ms Mashavave. The Magistrate took into account the differences between what Ms Mashavave said she saw and the Complainant’s evidence. Ms Mashavave said that she saw the Appellant kiss the Complainant and that his hand on the Complainant’s neck was forceful. The Complainant said he did not kiss her because she ducked under his arm and that his touching of her neck was not forceful. Her Honour found that the discrepancy could be attributable to the different viewpoint of Ms Mashavave, being slightly to the side of the Complainant.

94. Against those findings as to the credibility of the Complainant and Ms Mashavave, her Honour’s conclusion that the Complainant’s failure to tell the police that the Appellant was “pouting” his lips was not destructive of her credibility and that evidence was consistent with her telling police that he tried to kiss her.

95. The Appellant submitted that Ms Mashavave acknowledged that the Appellant had not kissed the Complainant. This is inaccurate. Ms Mashavave said she saw a kiss, agreed that the Complainant told her that he had not kissed her, but maintained that she had seen him kiss her. It was argued that her error reflected a misinterpretation of what she saw. Perhaps it did, but there is no doubting that Ms Mashavave saw the Appellant touch the back of the Complainant’s neck and saw her head move, and she believed he kissed her. Whether or not that happened does not undermine her evidence as it supports the Complainant’s account of what happened.

96. Next, the Appellant argued that Ms Mashavave was “uncertain” as to whether the word “gift” or “complimentary” was used in relation to the alcohol. Whatever word was used, Ms Mashavave’s evidence was that she understood the drink to be offered free of charge. The submission does not elaborate on how or to what extent this uncertainty affected her evidence or its acceptance.

97. Finally, the Appellant argued that in accepting that the evidence of Ms Mashavave supported the Complainant’s evidence, the Magistrate failed to take into account the evidence of the Complainant and Ms Mashavave that they discussed what had happened. This submission was not put to the Magistrate. The submissions on the appeal do not suggest whether or to what extent the fact that the Complainant and Ms Mashavave may have discussed what happened affected their evidence.

98. Turning then to the video recorded by the police body-worn camera activated when they interviewed the Complainant, the Appellant submitted that in this recording, the Complainant gestures to demonstrate the Appellant’s movement, which the Appellant argued clearly showed he had not tried to kiss her as alleged. In the clip, the Complainant demonstrates how the Appellant approached her, clearly showing him putting his arm up near her neck and how she ducked under his arm to get away, and the Complainant records her account of what happened. This first complaint, including the gesture, accords with her evidence given at the hearing in the Magistrates Court, and in my view goes significantly to establishing her credibility. The Appellant’s apology and explanation for returning to the Complainant’s apartment with alcohol

99. The recording made of the Appellant’s encounter with the Complainant when he returned shortly after he delivered the food shows him apologising profusely to her. She accused him of trying to kiss her. She said: Complainant: So why did you try to hug me and kiss me? Appellant: No, no … I’m so sorry miss.

100. The conversation continues with the Complainant asking the Appellant why he acted as she said he did. He continues to apologise and finally says, “I’m extremely sorry for what happened”.

101. The Appellant argued that the Magistrate, while not accepting that his apologies amounted to consciousness of guilt, failed to properly take into account the reasons why he apologised. As he said in his Record of Interview, he apologised because she was upset and had felt uncomfortable. It was argued that in not taking account of that, the Magistrate risked using the evidence of the apologies adversely to the Appellant.

102. This must be rejected. First, the Magistrate clearly acknowledged that there may have been other reasons why the Appellant apologised. It was the strong or profuse way in which the Appellant apologised, in light of his evidence that he had not done what the Complainant accused him of doing, that caused the Magistrate to have concerns about the reliability of his evidence.

103. Further, her Honour took into account the Appellant’s explanation for returning to the Complainant’s apartment to bring the alcohol and his assertion in the Record of Interview that he had “completed” the delivery. The Appellant’s submission argues, without any evidence in support, that, in fact, the Appellant was speaking about concluding the delivery on the Uber Eats application. On the evidence before her, the Magistrate was clearly entitled to have some concerns not only about the reasons the Appellant gave for attempting to deliver alcohol to the Complainant and persisting in saying it was for her when she said it was not, but about the way in which his recollection emerged during the interview.

104. The Magistrate’s conclusion that the Appellant’s evidence was unreliable and unpersuasive was based not only on these two aspects but also his account as a whole as contained in the interview, his answers in which her Honour described as “confusing”. It was a conclusion to which she was entitled to come and entirely supported by the evidence. Whether the whole of the evidence supports a finding of guilt beyond reasonable doubt

105. The Appellant argued that after the Magistrate excluded the argument that the strength of the Appellant’s apologies and his explanation for returning with the alcohol demonstrated consciousness of guilt, it left open a finding that the Appellant’s account was a plausible explanation of what occurred, being, in the Appellant’s submission, a misapprehension of his innocent actions. As I have said, the Appellant did not say what it was that he did that could have been so misinterpreted, especially given the evidence of both the Complainant and Ms Mashavave that he put his hand on the Complainant’s neck.

106. Her Honour’s conclusions as to the reliability of the Complainant, as supported by Ms Mashavave, were clearly open to her on the evidence and the Appellant has not demonstrated any error.

Conclusion

107. I am satisfied that none of the grounds of appeal, whether asserting an unreasonable verdict or errors of fact-finding by the Magistrate, is made out.

108. Having reviewed all of the evidence before the Magistrate and taken into account the evidence tendered on the appeal by the Appellant, I am not satisfied that the Magistrate erred in accepting the Complainant’s allegations beyond reasonable doubt. I consider on the whole of the evidence that it was open to the Magistrate to find beyond reasonable doubt that the Appellant was guilty.

109. It follows then that the appeal must be dismissed.

Orders

110. Section 218(1)(a) of the Magistrates Court Act provides that, in the event that an appeal against conviction is dismissed, the Court will “confirm” the conviction.

111. Therefore, the orders of the Court are: (1) I grant leave to the Appellant to rely on the amended grounds of appeal in the affidavit of the Appellant filed on 17 July 2026. (2) I dismiss the appeal and confirm the conviction.

I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: