McMartin v R

The Relevant Law

1. The applicable principles to be applied in determination of the appeal are as follows.

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

1. 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].
2. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgment 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].
3. 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].
4. 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].
5. 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).
6. 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).
7. 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).
8. 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).
9. Section 20 Crimes (Appeal and Review) Act 2001 provides that the District Court may dispose of an appeal against conviction by setting aside the conviction or dismissing the appeal. There is no power to remit the matter to the Local Court.

Relevant directions

1. 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.
2. Section 294AA Criminal Procedure Act 1986 provides: (1) A judge in any proceedings to which this Division applies must not direct a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a direction to a jury of the danger of convicting on the uncorroborated evidence of any complainant. (3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.

Analysis of the Magistrate's Decision

1. The magistrate gave an ex-tempore judgment a few months after the completion of the evidence, and a few weeks after receiving written submissions from the parties. I will only set out the matters that are relevant to the resolution of the appeal.
2. The magistrate noted that the appellant gave evidence and that it was an appropriate matter to give himself the Liberato direction. He also noted that the appellant had raised good character and how he could take that into account. The magistrate noted that there had been a delay in complaint and that may have put the appellant at a forensic disadvantage, through the loss of objective evidence such as the text messages that were exchanged between the complainant and the appellant on the night of the alleged offence.
3. The magistrate gave himself directions pursuant to ss 293A and 294AA Criminal Procedure Act 1986.
4. The magistrate found the complainant to be very thoughtful, careful and reflective in her evidence. He found that she "did not have an axe to grind" and did not appear vindictive. She had thought highly of the appellant, and she spoke of him in those terms. The magistrate described the complainant as a "good and accurate historian". The magistrate noted that there were inconsistencies in her evidence, in particular that she did not mention in her police statement that there was a consensual massage and that she went to the bathroom before she left the house but came to an overarching view that her evidence was consistent throughout. He ultimately found the complainant to be a witness of credit and accurate in relation to the way she gave her evidence.
5. The magistrate accepted that the loss of the text messages exchanged between the complainant and the appellant on the day of the incident amounted to a forensic disadvantage to the appellant.
6. The magistrate described Exhibit 11 as a "powerful document because it was contemporaneous." He reasoned that it was reliable because "it was her contemporaneous note of what occurred."
7. The magistrate concluded that the appellant's evidence as "quite underwhelming". The magistrate made a number of findings, which in combination were said to be the foundation for that conclusion, being: 1. he spoke over the top of senior counsel appearing for him; 2. the magistrate's impression that the appellant's evidence that he asked the complainant, "How are you really going?" was "creepy", but also may not have been; 3. the appellant's evidence that the massage was "probably inappropriate" was an attempt by the appellant to minimise his conduct; and 4. over the three days of the hearing the magistrate observed the accused to be disinterested in the proceedings because for extended times he was flossing his teeth, looking at his phone and doodling. He appeared to be unconcerned by the evidence and he "demonstrated a level of arrogance which was consistent with other matters". The magistrate stated this was consistent with how the appellant answered some of the questions referred to earlier in the judgment.
8. The magistrate was ultimately satisfied that the appellant touched the complainant on the crotch on the outside of her clothing, squeezed her breast and touched her thigh to her buttock as alleged by her, and found the offence proven.

Ground 1

1. It was not in dispute that the magistrate did not inform the appellant that he intended to use his observations of him in the body of the court to make an adverse credit finding, so that he had an opportunity to address those matters.
2. It is well settled that the failure of the magistrate to do so amounts to a denial of procedural fairness to the appellant: Gardiner v R [2023] NSWCCA 89 at [137] (Adamson JA: Button and McNaughton JJ agreeing).
3. The magistrate reasoned that the appellant's conduct in the body of the court was at least one of the matters that adversely impacted his credit as a witness.
4. The appellant submitted that it would be difficult to disentangle the credit finding based on the denial of procedural fairness from the credit finding based on observations of the appellant's demeanour as a witness, in circumstances where the matter cannot be remitted to the magistrate. After considering the whole of the magistrate's findings about the appellant's credit, I agree.
5. Further, the magistrate's remaining credit findings relating to the appellant's evidence are far from convincing and do not withstand scrutiny for the following reasons.
6. First, the fact that the appellant cut off senior counsel appearing for him during his evidence-in-chief cannot rationally impact his credit as a witness. Witnesses speak over lawyers in the course of their evidence on a daily basis and sometimes even over the judge. This can be caused by a plethora of reasons that are unrelated to a witness' credibility, such as unfamiliarity with giving evidence in court. In one of the examples cited by the magistrate, it was possible that what was recorded in the transcript was the result of senior counsel not being able to hear the answer that the appellant gave.
7. Second, the magistrate's finding about the question "How are you really going?" was equivocal. It was described as "creepy" or perhaps not "creepy". It is hard to see how such an equivocal finding could rationally impact the assessment of the appellant's credit.
8. Third, the magistrate's recount of the appellant's evidence that his massage of the complainant was "probably inappropriate" was not a fair statement of the appellant's evidence. At the point of the transcript referred to by the magistrate the appellant's answer was "It's probably - it's inappropriate". A fair reading of that answer, particularly in the context of his other answers on the topic, was that the second part of the answer was a qualification or replacement of the first part of the answer, replacing the equivocation of the word "probably" with the absolute, that the conduct was inappropriate. This is supported by all of his other answers relating to the massage and the circumstances in which it took place, in which he categorically accepted that his conduct was inappropriate. It was an unfair characterisation to suggest that by reference to this one equivocal answer that the appellant sought to minimise his conduct in the course of his evidence. I am satisfied that the conclusion drawn by the magistrate was not open on the evidence.
9. In all of the circumstances, I am satisfied that the magistrate erred in assessing the appellant's credit in the way that he did and that his credit findings relating to the appellant should be set aside.
10. The appellant submitted that in assessing the evidence without regard to the impugned credit findings, I would not be satisfied beyond reasonable doubt that the prosecution had proved the elements of the offence and if so, it was unnecessary to consider ground 2.
11. Having conducted an independent assessment of the evidence before the Local Court, I have a reasonable doubt as to the appellant's guilt of the offence of which he was found guilty, for a combination of reasons that follow.
12. First, the appellant was consistent in his denials that he had not committed the offence. He chose to participate in a recorded interview and to give evidence at the hearing. He was not obliged to do either. What he did say was plausible and there was no objective evidence to contradict it. The magistrate reasoned that the complainant was a reliable witness by reference to her consistency of account, but did not apply the same logic to the assessment of the appellant's evidence.
13. Second, the appellant was a person of good character. He was 67 years of age at the time that he gave evidence. He had no prior convictions and had lived a life of faith and service to others. Even the complainant and her mother attested to his good character. I have taken into account that as a person of good character, the appellant was likely to tell the truth and unlikely to commit an offence of the kind alleged.
14. Third, the appellant acted consistently with what he said occurred. He agreed that his conduct (what he said occurred) was inappropriate and agreed to stand down from church activities for three months.
15. Fourth, there was some forensic disadvantage incurred by the appellant by reference to the delay in complaint. Not only were the text messages lost, but other contemporaneous records of the events of the following day were lost, such as a record of the telephone call allegedly made by the appellant to the victim in the morning to remonstrate with her about her making an allegation. He was also denied the contemporaneous opportunity to test the circumstances in which Exhibit 11 was compiled and later withdrawn. Finally, there was no record kept by the officer in charge of what she was told by the complainant of what she had remembered after making her police statement in October 2020.
16. Fifth, the magistrate did not exercise the appropriate caution relating to Exhibit 11, reasoning in effect that because it was contemporaneous, its contents were reliable. Just because a document is contemporaneous does not mean that its contents are true or reliable. The circumstances surrounding the creation of Exhibit 11 could not be tested, due to the effluxion of time. Similarly, the circumstances of the withdrawal of the complaint could not be tested. Exhibit 11 was not made under oath or in circumstances where its contents were stated to be true. Further, the complainant's evidence about trying to forget what happened and having "repressed memories" causes me some concerns about her evidence. I am not sure if her evidence was a recollection of the events of the night or a reconstruction of them through discussions with others or by reference to Exhibit 11.
17. Sixth, there were parts of the complainant's account that were inconsistent with objective evidence. For example, Pastor McInnes took notes of the events of the following day that included the times that those events occurred. The complainant's evidence that the appellant remonstrated with her for making a complaint on the morning of 29 January 2013 was inconsistent with the contemporaneous notes made by Pastor McInnes.
18. Sixth, there were critical inconsistencies in the complainant's evidence. Whilst I accept that there might be good reasons for that, there were inconsistencies in the account that went to the heart of the alleged indecent assault.
19. Seventh, I note that the allegations were only prosecuted after the complainant's mother was retrenched during the pandemic in 2020 in circumstances where she was unhappy with the appellant about that.
20. Eighth, I am mindful of the fact that the appellant on appeal did not try to set aside the magistrate's credit findings concerning the complainant's evidence. However, I have come to the conclusion that there is sufficient doubt about the appellant's guilt despite those findings, which means that the appellant must be acquitted.

Ground 2

1. It is not necessary to deal with ground 2, although my view in passing is that it had some merit. I have approached Exhibit 11 bearing in mind the factors that could affect its reliability.

Orders

1. The orders I make are as follows: 1. Appeal allowed. 2. I set aside the conviction and the penalty imposed by the magistrate.

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: 23 June 2023