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

Papps v Police [2000] SASC 183, 77 SASR 210, distinguished.

Judgment Number: [2019] TASSC 42

1. This is a motion for the review of a decision by which a magistrate, Mr C P Webster, found a charge of indecent assault to have been proven. The applicant contends that the learned magistrate failed to give adequate reasons for his decision, failed to have regard to what the applicant told the police when interviewed, and made a finding unsupported by evidence to the effect that the complainant was "clearly a person who is very familiar with clothing".
2. The applicant was charged with assault with indecent intent, contrary to s 35(3) of the Police Offences Act 1935. It was alleged that he assaulted the complainant by "touching her over her clothing in the groin area in a cupping motion".
3. She gave evidence to the following effect. She went to a bar with a friend on Saturday, 24 March 2018, and was on the dance floor at some time after midnight when a man approached her from a position in front of her, placed his right hand between her legs in a cupping motion, and groped her vagina for about three seconds. She pushed the man back with both hands, pointed her finger to his face, and yelled, "You can't touch women like that." He moved away into the crowd. He was of Indian appearance. He was wearing a two-tone green and blue stripy T-shirt and a puffer vest. She told the owner of the establishment and a man named Chisolm that she had just been inappropriately grabbed by a man. Mr Chisolm asked her to point the man out. She saw him in the crowd, and pointed him out. Mr Chisolm approached the man and escorted him out of the bar.
4. Two police officers interviewed the applicant some hours later, commencing at 9.09am on the Sunday. He admitted that he was the person who had been accused of indecently touching the complainant, and who had been told to leave the bar, but he denied that he had touched her. An audio-visual recording of the interview was tendered at the hearing of the charge.
5. The applicant did not give evidence or call any witnesses before the learned magistrate. His Honour identified the two issues that he had to determine, namely whether the complainant was indecently assaulted by someone in the way she described, and whether the applicant was her assailant. At the conclusion of the hearing he found the charge proved, giving brief oral reasons for that decision.

The complainant's familiarity with clothing (Ground 3)

1. When assessing the complainant's evidence in relation to the identification issue, the learned magistrate said this:

"She immediately described the clothing. I might note that this complainant is a woman who is in charge of a clothing store. She gave that evidence and she described people by clothing. She described the other two friends of the defendant as to what they were wearing to the extent that she even described red shoes on one and what the other was wearing. She's clearly a person who is very familiar with clothing and that would have featured [sic] and able to describe what people were wearing. It's not disputed that the defendant was wearing exactly what she described and that the identification occurred immediately and not some hours later or even some minutes later. It was within seconds of occurring after she had at least three seconds at less than a metre to observe him and observe all his clothing and his ethnicity."

1. The evidence relating to the complainant's observations of clothing included the following:
   • When asked her occupation, she replied, "Retail store manager."
   • When asked what her assailant was wearing she replied, "Well, it was quite distinct, as he was wearing a striped T-shirt and a puffer vest over his T-shirt. And I would describe the man as Indian also ...". When asked the colour of the T-shirt she replied, "I think it was, like, a two-tone, so maybe blue up the top and green down the bottom, or maybe green up the top and blue down the bottom. But, a two-tone vest." She also said that the man had no facial hair.
   • She gave evidence that there were other men with her assailant, and that they left the establishment after he had been asked to leave. When asked to describe them, she replied, "So, there were two men. Also of Indian appearance. One was shorter and one was taller and they were wearing quite different clothing as well. ... One had red - red shoes on, if I'm not mistaken and one had maybe all black on, I think."
   • When asked what she was wearing, she replied, "I was wearing some full length, black, high-waisted denim jeans with some black sock boots - high heeled boots. And I was also wearing a black strapless top as well." She later gave evidence that she was carrying a grey fur jacket.
   • During her cross-examination, the learned magistrate asked her what her full-time job was. She told him that she was the store manager of a women's clothing store in the Hobart CBD.
2. The amended notice to review contains three grounds. Ground 3(b) was abandoned. The surviving part of ground 3 reads as follows:

"A finding of guilt on the charge was not reasonably open to the magistrate as a matter of law in circumstances where:

(a) the learned Magistrate in finding that the complainant was 'clearly a person who is very familiar with clothing' when there was no evidence before the court to support this finding ...".

1. On the basis of the evidence that I have referred to, it was reasonably open for the learned magistrate to conclude that the complainant was very conscious of people's clothing, or very observant of people's clothing, or at least very knowledgeable about different types of clothing. It was reasonably open for him to make a finding that the complainant was "clearly a person who is very familiar with clothing". Ground 3(a) must therefore fail.

1. Grounds 1 and 2 of the amended notice to review read as follows:

"1 The learned Magistrate erred in law in failing to give adequate reasons for rejecting the evidence of the applicant.

1. The learned Magistrate erred in law in failing to have any regard to the applicants [sic] record of interview in considering whether the evidence was sufficient to exclude a reasonable doubt as to the applicant's innocence."
2. As I have said, the applicant did not give evidence, but a recording of his police interview was tendered. The interviewing officers were repetitious. The applicant consistently denied having grabbed the complainant to the area of her vagina. He told the police at least six times that he did not do that.
3. In his reasons for finding the charge proved, the learned magistrate focussed on assessing the evidence of the complainant, and said very little about the applicant's police interview. When addressing the issue of whether there had been an indecent assault, he considered the possibility of an inadvertent touching, and in that context mentioned the applicant's case. He said this:

"It's hardly something that one confuses, ... a hand going between the legs compared to someone inadvertently bumping her in the - bumping her or touching her inadvertently with a hand or hitting them [sic] with a leg or backside. But that's of no relevance anyway on the defendant's case, it wasn't him."

1. His Honour did not mention the police interview, even though that interview contained denials by the applicant of the conduct alleged, and even though those denials were repeated and emphatic.
2. It is well established that, with rare exceptions, judges and magistrates have a duty to give adequate reasons for their decisions, and a failure to give adequate reasons amounts to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Phillips v Arnold [2009] TASSC 43, 19 Tas R 21. When a magistrate finds a charge proved beyond reasonable doubt on the basis that the evidence of one witness is preferred to that of another witness, the duty to give adequate reasons requires the magistrate to explain why he or she has preferred the evidence of a particular witness: Phillips v Arnold at [53]-[67].
3. In this case, as I have said, the applicant did not give evidence. However there was evidence of his repeated exculpatory statements during his police interview. When a defendant makes admissions in an interview or a statement that is relied upon by the prosecution, any exculpatory assertions in the interview or statement may be relied upon as evidence favourable to the defendant: R v Higgins [1828] EngR 201; (1829) 3 C & P 603, 172 ER 565; Jack v Smail [1905] HCA 25; (1905) 2 CLR 684 at 695, 708.
4. In order to evaluate the adequacy of the learned magistrate's reasons in this case, it is appropriate to have regard to the rationale of the rule requiring the giving of reasons. In Phillips v Arnold (above), Crawford CJ, with whom the other members of the Full Court agreed, said at [64]:

"The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately."

1. Counsel for the applicant relied on the South Australian Full Court decision of Papps v Police [2000] SASC 183, 77 SASR 210. That case concerned drink driving and speeding charges. In a hearing before a magistrate police witnesses gave evidence of the defendant speeding but the defendant and a passenger gave evidence contradicting them. It appears that the police would not have been entitled to require the driver to submit to a breath analysis if he had not been speeding. The magistrate, who convicted the defendant, gave detailed reasons for concluding that the evidence of the police witnesses was reliable, without explaining why he was rejecting the evidence of the driver and the passenger. The Full Court allowed the appeal and ordered a new hearing on the basis that the magistrate had not given adequate reasons for his decision. The reasons of Gray J, with whom Olsson and Wick JJ agreed, included the following at [36]-[39]:

"[36] The issue that then arises is whether the magistrate's reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witness or his assessment of them. He gave no reasons for his rejection of the defence case.

[38] This Court is left to speculate as to why the defence evidence was rejected. The magistrate failed to reveal the reasoning on which the critical finding was based. The lack of reasons frustrates the performance by this Court of its appellate duties. The magistrate's reason were inadequate.

[39] Justice was not seen to be done in this case. The approach taken by the magistrate does not appear even handed. His manner of dealing with the police case and the defence case is markedly different and could lead to a sense of unfairness and injustice."

1. Counsel for the applicant also relied on the judgment of Wood J in Robinson v Chatters [2010] TASSC 66. In that judgment at [73]-[77] her Honour reviewed and summarised the case law relating to the duty to give reasons. It is clear that, in a case where there is conflicting evidence, the duty ordinarily requires the magistrate or judge to explain why one body of evidence is accepted in preference to another: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443.
2. However, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, "Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."
3. This was a simple case. The hearing was a short one. There was no evidence from the defence. The applicant did not give the police a detailed account of events that conflicted in numerous respects with the complainant's account of events. He admitted that he was at the bar, and that he was the person that she had identified as her assailant. His only exculpatory assertion, though it was repeated many times, was an assertion that he was not the assailant. That contention was no doubt very fresh in the learned magistrate's mind when he accepted the complainant's evidence since the recording of the interview was the last piece of evidence presented at the hearing.
4. The learned magistrate made it clear that he considered the complainant to be an impressive witness, and that he accepted her evidence because she was able to identify the applicant by reason of his clothing and his skin colour immediately after the assault occurred.
5. The applicant no doubt understands that his denials were rejected because of those factors. And it is quite clear to me that his denials were rejected because of those factors. It was not necessary for the learned magistrate to consider the number and nature of those denials, to assess the applicant's demeanour during the police interview, or even to mention the interview, for the purpose of discharging his duty to give adequate reasons, given the simplicity of this case. Grounds 1 and 2 must therefore fail.

1. For these reasons, I have decided to dismiss the motion to review.