Criminal law - Indecent assault - Whether alleged touching was intentional - Whether prosecution required to prove that the alleged touching was not an unwilled act or not an event that occurred by accident - Elements of the offence

Criminal law and procedure - Whether finding of guilt unreasonable or not supported by the evidence - Whether there was no substantial miscarriage of justice notwithstanding errors of fact and law

Criminal Appeals Act 2004 (WA), s 8, s 14

1 The appellant was charged with an offence under s 324 of the Criminal Code: that on 20 February 2012, at Kingsley, he unlawfully and indecently assaulted Grace Emily Stevens in circumstances of aggravation, namely that Ms Stevens was aged between 13 and 16 years. He was convicted of that offence following a trial in the Perth Magistrates Court held on 29 and 30 October 2012. He was fined $1,000 and ordered to pay costs. A spent conviction order was made.

2 The appellant sought leave to appeal from his conviction on three grounds:

(a) that the verdict was unsafe and unsatisfactory in that any reasonable trier of fact could not have come to the conclusion that the learned magistrate did based on the evidence at trial;

(b) that the magistrate erred in fact in concluding that the appellant had waited 9 minutes at the upper concourse, inferring that this time was part of a preconceived 'targeting' of the complainant;

(c) that the magistrate erred in law in concluding that the prosecution had negatived accident beyond reasonable doubt.

3 By orders made on 27 December 2012, McKechnie J refused the applicant leave to appeal on proposed ground 1 and directed that the application for leave to appeal on proposed grounds 2 and 3 be heard at the same time as the appeal.

4 The appellant subsequently sought to amend his proposed grounds of appeal to substitute a new ground for proposed ground 3. The proposed new ground pleaded that 'the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported'. The circumstances in which the application to amend was made are explained later in the reasons.

5 I have concluded that leave to appeal should be granted and the appeal allowed. The appellant's conviction should be set aside and a verdict of acquittal entered.

6 The prosecutor alleged in opening (ts 3, 29 October 2012) that:

(a) the appellant had touched the complainant on her buttock with his hand as he walked past her on the upper concourse of the Whitfords train station;

(b) it was to be inferred that the contact had been intentional as the appellant had deliberately chosen a path across the upper concourse of the train station that brought him into close proximity with the complainant and he had also touched her on the shoulders when she had subsequently moved from the upper concourse to the train platform located below.

7 The prosecutor called the complainant; Melissa Cheong, a friend of the complainant who had been with her when she was on the upper concourse of the train station; Benjamin Hunt, another friend of the complainant, who had been with her when she was on the train platform; and Nathan Lammas, a Public Transport Authority employee. The prosecutor also tendered closedcircuit television film taken at the train station and a series of photographs sourced from the CCTV film.

8 The CCTV film indicated that the upper concourse of the train station served as a bus stop, with an escalator going from the concourse to the train platform below. There were two steel and glass cabinets located on the upper concourse near the escalator (see exhibit 1). The cabinets housed bus timetables and route maps.

(a) She arrived at the train station by bus. She was with her friend, Ms Cheong. She and Ms Cheong waited on the upper concourse by the cabinet containing the bus timetable.

(b) She was standing with her back to the cabinet, talking to Ms Cheong. She saw a man approach her from her right (it was accepted that the man that the complainant described in her evidence was the appellant). He then 'pushed through a gap that wasn't really there'. She was leaning on the cabinet, but he pushed behind her. As the appellant 'pushed through', he 'put his hand on her bottom' (ts 6).

(c) She felt the appellant's fingers and the palm of his hand on the right side of her bottom. Consequently, she knew he had touched her with his hand rather than any other part of his body (ts 6).

(d) She thought that the appellant had mumbled something as he had walked past.

(e) She thought that the contact may have been accidental, although she also thought that it was 'a bit strange' (ts 6).

(f) Ms Cheong left to catch a bus. The complainant could still see the appellant on the upper concourse. He was standing by a pillar at the top of the escalator. She became 'a bit worried' as she felt that he was looking at her: 'he just kept staring at my general direction, and I kept making eye contact with him' (ts 7).

(g) She walked around the upper concourse looking to see if there was anyone that she knew. She then returned to the escalator and went down to the train platform. She encountered Mr Hunt and sat with him at the bottom of the escalator. She told him what had occurred (ts 8).

(h) She then saw the appellant coming down the escalator and 'he almost got to the bottom and - because I was sat against the escalator at the bottom, his hand, like, brushed across my shoulders ... I could feel his fingers' (ts 8). She told Mr Hunt that she was scared and nervous and he went and told the transit guards.

10 It was put to the complainant in crossexamination that the appellant had not touched her on the shoulders as he had travelled down the escalator. However, it was not put to the complainant that the appellant had not made contact with her buttocks with his hand. It was suggested that there was sufficient space between the complainant and the adjacent cabinet to enable the appellant to walk behind her. However, it was not suggested that there had been no contact. The relevant part of the transcript records the following exchange (ts 29):

But you would agree, wouldn't you, that when this person came past, he didn't hang around near you, he didn't spend a long time near you, he literally just went past?He did after he came back.

No, but when he initially came past - - -?His hand was on my bottom for like two to three seconds as he walked past.

So two to three seconds. Now, you've seen the CCTV footage, haven't you?Yes.

You would agree, wouldn't you, that this man that walked past just literally walked past. He didn't stop?He pushed past. There was no gap for him to walk through.

But he didn't stop, did he?No.

He didn't hang around you, he didn't stand next to you, he actually just literally walked past?Yes.

You would agree that this person just walked past in a normal ?Yes, apart from the fact that he had his hand on my bottom.

But if you look at the CCTV footage, you would agree, wouldn't you, that this person has just literally gone past you?Yes, but he pushed through a gap that wasn't there.

11 Ms Cheong stated that she and the complainant had been waiting on the upper concourse by a cabinet containing the bus timetable. They were talking when she saw a man approach from her left (the complainant's right) who 'squeezed' past the complainant and the cabinet. The space between the complainant and the cabinet was not big enough for a person to walk through in order to pass them. Further, as the man passed, she saw him 'touch her on the bum' and 'he used his right hand and touched her right side of her bum' (ts 35). He then said, 'Sorry'. Again, there was no issue over whether the man that she described in her evidence was the appellant.

12 Ms Cheong's evidence as to what she had seen when the appellant had walked behind the complainant was not challenged in crossexamination. Rather, the crossexamination focused on her evidence that there had been insufficient space for the appellant to pass behind the complainant.

13 Mr Hunt stated that the complainant had approached him after coming down the escalator. She said to him, 'Oh, Ben, thank God you're here'. She then told him that a man had tried to touch her on the bottom (ts 51). She seemed nervous and they went and spoke to the transit guards. They had sat on a small ledge at the bottom of the escalator for about 30 seconds before going to speak to the guards.

14 Mr Lammas gave evidence of the complaint made by the complainant and of her description of the man who she alleged had touched her. Mr Lammas and the other transit guard with whom he was working identified the appellant from the complainant's description. They spoke to him and, according to an incident report prepared by Mr Lammas, the appellant denied that he had touched the complainant on her buttocks.

15 It was put to Mr Lammas in crossexamination that Mr Hunt and the complainant had reported that a man had 'tried' to touch her on the bottom. Mr Lammas stated that they had complained that the complainant had been touched; that accorded with his incident report.

16 The complainant was shown CCTV film taken by a camera located at the train station. The film was identified as having been taken from camera 'WTF 201'. It was 8 minutes and 59 seconds in duration.

(a) The complainant and Ms Cheong were first recorded on the upper concourse of the train station at 00:11. They were on the same side of the concourse as the camera. They disappeared out of the range of the camera for a period.

(b) The complainant and Ms Cheong were next clearly recorded at 02:26. They had moved across the concourse away from the camera. They were located close to the cabinets containing the bus timetables and route maps. The escalator to and from the train platform below was located in the middle of the concourse. The position of the complainant and Ms Cheong was partly obscured by a column located between the camera and the cabinets. The angle of the camera and the location of the column were such that it appeared that there was only one cabinet.

(c) The appellant was first seen on the film at 04:47. The complainant and Ms Cheong were at the far left side of the film, at the edge of the camera's range. The complainant was facing the escalator. She was not leaning against the adjacent cabinet. Ms Cheong was facing the complainant; the complainant was standing sideon to Ms Cheong. The appellant came from behind them - that is, from the lefthand side of the film (viewed from the perspective of the camera). He was shown as passing between the complainant and the adjacent cabinet; that is, to her lefthand side and behind her.

(d) It was difficult to discern what had occurred as the appellant passed the complainant because of the camera distance and the column located between the camera and the cabinet. It appeared that there may have been some contact between the appellant and the complainant but it was impossible to ascertain where the contact had occurred. The appellant kept walking and he passed the complainant in approximately one second. However, he turned immediately after he had passed making a gesture that might have been consistent with an apology being made (at 04:49).

(e) The appellant went down the escalator, although as he did so he turned and looked back towards the complainant and Ms Cheong.

(f) The complainant and Ms Cheong remained by the cabinet until about 06:43, when Ms Cheong left apparently to catch a bus. The complainant crossed the concourse to the side where the camera was located and spoke to another girl (dressed similarly to Ms Cheong but with a large backpack; Ms Cheong had a shoulder bag). They returned to the area where the cabinets were located. The girl departed at about 07:40.

(g) The appellant ascended the escalator to the upper concourse at about the same time (07:44). The complainant moved to the left and out of the range of the camera. The appellant was recorded as looking in the direction of where the complainant had apparently moved. He was standing by a column adjacent to the escalator. However, the appellant did not consistently look in the apparent direction of the complainant.

(h) The complainant reappeared on the film at 08:32. She entered and travelled down the escalator. The appellant entered and travelled down the escalator at 08:50.

18 There was a second CCTV film that was played and which showed the lower part of the down escalator. The film was identified as having been taken from camera 'WTF 104'. It showed the complainant descending the escalator at 03:42. She appeared to take a seat at the foot of the escalator.

19 The film further showed the appellant descending at 04:06. The complainant was not in the picture. The appellant was holding the black plastic hand rail. His hand did not move before he apparently alighted from the escalator.

20 The appellant gave evidence. He called no other witnesses.

21 The appellant stated that he had travelled to the Whitfords train station by bus. He had then made his way to the escalator from the bus stop. He could not recall bumping into anyone on his way through to the escalator.

22 The appellant confirmed that he had told the transit guards that he could not have been the person about whom the complaint had been made. He was then asked, 'You've heard the evidence of the young girls and they say that you placed your hand on their bum. Did you do that?' He replied, 'No, I didn't do that' (ts 74).

23 It was not clear from the question whether the appellant denied making any contact with the complainant or whether he denied contact in the form of placing his hand on her buttock - where the word 'placed' might have connoted a deliberate act. That ambiguity was not clarified. It was apparent that the magistrate understood the appellant to have denied in his evidence that he had touched the complainant on her buttock.

24 The appellant was crossexamined on why he had taken the particular path shown on the CCTV film to reach the escalator after alighting from the bus. He stated that he could not recall why he had taken the route shown on the film; indeed, he was unable to recall the incident. He could not recall apologising to the complainant after he had walked past her. He could only recollect speaking to the transit guards.

25 The appellant was further crossexamined as to why he had returned to the upper concourse of the train station after he had descended to the train platform. He initially stated he had no idea why he went back to the upper concourse, but then he said that he had 'time to kill' and he thought he would buy a newspaper (ts 78) (there was a delicatessen/newsagency on the upper concourse). The appellant said later in his evidence he could remember thinking that he would purchase a newspaper to look at the headlines (ts 82). However, the CCTV film indicated that he made no movement towards the newsagency on his return to the upper concourse. He merely came back up the escalator and moved a few metres to his right on exiting. He then stood by a pillar adjacent to the top of the escalator for approximately 1 minute before descending again (the pillar is clearly depicted in the photographs forming exhibit 1).

26 The prosecutor submitted in closing that the evidence given by the complainant and Ms Cheong established beyond a reasonable doubt that there had been contact between the appellant and the complainant. He further submitted that the appellant's conduct following the incident was inconsistent with the contact having been accidental. The appellant had looked back towards the complainant as he had descended the escalator; he had returned to the upper concourse, supposedly to purchase a newspaper but, in fact, he had not approached the newsagency; he had adopted a position on his return to the upper concourse that enabled him to observe the complainant; he had remained in that position for 'several minutes'; and he had touched the complainant on her shoulders as he descended on the escalator to the train platform. The prosecutor contended that the appellant's 'movements on the upper concourse and the platform had kept him in close proximity to [the complainant] and his overt acts are simply inconsistent with an accident and are inconsistent with innocence' (ts 3, 30 October 2012).

27 The appellant's counsel submitted, in effect, that each matter relied on by the prosecution was capable of an innocent explanation. The appellant had accidentally bumped into the complainant; he had apologised for doing so; he had travelled down to the train platform and had seen that a train was not coming for some time; he had returned to the upper concourse where there was a newsagent and, like other people on the concourse, he had spent a period standing and watching passersby; he had followed other people down the escalator to the train platform apparently to catch a train; and the CCTV film of him descending the escalator showed that his hand had rested on the side of the escalator but had not been lifted at any time, so that any contact with the complainant's shoulders was accidental and due to where she was sitting at the bottom of the escalator. It was further submitted that the appellant had taken a direct route from the bus stop to the escalators.

28 The magistrate defined the issue to be determined as 'whether [the appellant] had deliberately walked behind [the complainant] and touched her buttock in an indecent manner or whether he had accidentally touched her buttock as he walked past her' (reasons, par 12).

29 In defining that issue, the magistrate referred to Drago v The Queen (1992) 8 WAR 488 and Harkin v The Queen (1989) 38 A Crim R 296 on the meaning of the word 'indecent' for the purpose of s 324 of the Criminal Code. Her Honour concluded that the test of indecency was whether the act alleged was contrary to the ordinary standards of morality of respectable people in the community. She concluded that to touch a female on the buttocks was contrary to those standards. She further held that there was a sexual element to the touching as it had undertones of sexual contact.

30 Her Honour further referred to s 23B of the Criminal Code for the purpose of defining what constituted an accident. She cited R v Falconer [1990] HCA 49; (1990) 171 CLR 30 as authority for the proposition that the defence of accident 'excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforseen'. She also cited from the judgment of Gibbs J in Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 for the same proposition.

(a) The appellant had deliberately walked behind the complainant, 'brushing up against her' and that he had 'placed his right hand on her buttock as he brushed past'. That had involved a quick movement. She accepted the evidence of the complainant and Ms Cheong in that regard (reasons, par 27).

(b) The CCTV footage showed that the route taken by the appellant 'was not the route a person would take to get to the lower train platform'. Further, '[the appellant's] evidence that he did not brush past [the complainant] and touch her on the buttock, but if [he] did it was accidental, has no credibility at all' (par 27).

(c) The appellant had said, 'sorry' to the complainant and Ms Cheong immediately after making contact. The apology 'could only relate to the touching of [the complainant's] buttock' (par 27).

(d) The appellant's behaviour after the incident was consistent with his earlier deliberate behaviour of brushing past the complainant and touching her on the buttock. He came back up from the train platform to the upper concourse where the complainant was standing and stood 'opposite her for 9 minutes looking at her'. He made eye contact with the complainant. He stood watching her and made no attempt to go to the newsagency. He followed her down the escalator; he was approximately 20 seconds behind her. The appellant's conduct was 'not the behaviour of an innocent man' (par 28).

(e) The appellant followed the complainant down the escalator. He touched the complainant lightly on her shoulder blades with his fingers as he descended the escalator (par 28).

(f) The complainant was frightened and alarmed by the appellant's behaviour (par 28):

It was not imagined or fabricated by [the complainant], but all the events together make it clear that [the appellant] had targeted [the complainant] and took a route to be able to brush up against [the complainant] and as he did so he deliberately placed his right hand on her right buttock. He had to squeeze past [the complainant] whose back was facing the timetable board and facing towards [Ms Cheong]. He then watched her on the upper concourse for 9 minutes and followed her down to the train platform. Once he brushed her shoulders she then told the transit guards about his behaviour.

32 Section 324 of the Criminal Code provides that:

A person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 7 years.

33 The summary conviction penalty is imprisonment for 3 years and fine of $36,000.

34 The term 'assault' for the purpose of s 324 is defined by s 222 of the Code. That section provides that:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

35 In my view, the offence of assault incorporates an element of intention - a deliberate use of force. The intentional element of the offence is further discussed later in these reasons.

36 It is accepted by the respondent that the magistrate erred in making the finding that is the subject of proposed ground 2.

37 The CCTV film showed that the appellant had descended the escalator to the train platform immediately following when he was alleged to have assaulted the complainant. He returned to the upper concourse a few minutes later. He remained on the upper concourse for approximately 66 seconds before returning to the train platform. The complainant was on the upper concourse during this time for approximately 48 seconds before she descended on the escalator. It was during that period of 48 seconds that the appellant was alleged to have looked at the complainant and she became uncomfortable. The period was not 9 minutes, as the magistrate found - nor was the period 'several minutes' as the prosecutor submitted in his closing.

38 Accordingly, the appellant will be granted leave to appeal on proposed ground 2 and the appeal will be allowed in respect of the error of fact made by the magistrate that is the subject of the ground.

39 The respondent contended that the magistrate's error regarding the time that the appellant was on the upper concourse 'did not relate directly to the factual issue to be determined, and there has been no miscarriage of justice' (respondent's submissions, 16 May 2013, par 43). It is not necessary to determine the issue raised by that submission. However, two closely related points should be made about the magistrate's error.

40 First, her Honour accepted that the appellant had made eye contact with the complainant on his return to the upper concourse. She then commented in her reasons, 'He [the appellant] just stood and watched her. This is not the behaviour of an innocent man'. Her Honour further found that 'all the events together make it clear that [the appellant] had targeted [the complainant] and took a route to be able to brush up against [the complainant]' (reasons, par 28). Clearly, a finding that the appellant had watched the complainant for a period as long as 9 minutes has a different connotation to a finding that he had been on the upper concourse for only approximately 1 minute in the context of the issues to be determined and the findings made by the magistrate. Accordingly, the error made by the magistrate was plainly relevant to the facts from which her Honour inferred that the appellant had intentionally touched the complainant.

41 Second, the comment that the appellant's behaviour was not that of an innocent man indicates that the magistrate regarded the appellant's conduct on his return to the upper concourse as expressing an inappropriate sexual interest in the complainant - that he had 'targeted' the complainant. The finding that the appellant had targeted the complainant was an important aspect of her Honour's reasoning towards the appellant's guilt.

42 Proposed ground 3 of the appeal notice initially pleaded that the magistrate erred in law in concluding that the prosecution had negatived accident beyond a reasonable doubt. I raised with the parties at the hearing of the appeal whether the prosecution was required to prove that the alleged touching was intentional as an element of the offence so that it was not necessary to resort to s 23A and/or s 23B of the Criminal Code to determine whether the appellant was criminally responsible for the conduct alleged. I also raised two related questions. First, could s 23B of the Criminal Code apply in the circumstances alleged by the prosecution? Second, could it be argued that there had been a miscarriage of justice in that the magistrate's finding of guilt was unreasonable on all of the evidence?

43 The parties were permitted to provide further written submissions on those matters. The appellant revised proposed ground 3 in light of his further submissions.

44 There was no challenge to the magistrate's finding that the appellant had touched the complainant on her right buttock. As has already been explained, that was not a matter that the appellant substantially contested in the trial.

45 There was also no complaint about the magistrate's finding that touching the complainant on the buttocks would constitute an indecent act if it had been done intentionally. The finding incorporated the test of indecency endorsed by the Court of Criminal Appeal in Drago. The court held that indecent, for the purpose of the offence of indecent dealing, involved conduct that was:

(a) unbecoming or offensive to common propriety judged by ordinary contemporary standards of decency and propriety within the community;

(b) of a sexual character - that is, conduct that involved the human body, bodily actions or bodily functions in a sexual way.

46 As has already been noted, the magistrate then defined the issue to be determined as 'whether [the appellant] deliberately walked behind [the complainant] and touched her buttock in an indecent manner or whether he accidentally touched her buttock as he walked behind her' (reasons for decision, par 12). The use of the word 'accidentally' in that formulation apparently led her Honour to refer to s 23B of the Code and to the proposition that she had extracted from the judgments of Mason CJ, Brennan and McHugh JJ in Falconer and Gibbs J in Kaporonovski.

47 Section 23A(2) of the Criminal Code provides that a person is not criminally responsible for an act or omission that occurs independently of the exercise of a person's will. Section 23B(2) of the Code provides that 'a person is not criminally responsible for an event which occurs by accident'. Her Honour did not further explain how the section was to be applied to the facts in this case; that is, she did not identify what she regarded as being the 'event' for the purpose of the accident. However, her Honour presumably considered that the event was the contact that allegedly constituted the indecent assault. That would appear to follow from her formulation of the issue to be determined.

48 The appellant did not contend by his proposed grounds of appeal that the magistrate had erred in defining the issue to be determined or by referring to s 23B of the Code in deciding that issue. Similarly, the respondent accepted that her Honour had correctly defined the issue to be determined. Further, the respondent referred to Duffy v The Queen [1981] WAR 72 in her submissions dated 16 May 2013 for the proposition that the 'act' and the 'event' for the purpose of s 23A and s 23B may not be mutually exclusive. The submission continued (at par 27):

It is necessary to identify what is the act and what is the event. In this case, it is difficult to separate the act and the event, as it may have been the movement of the appellant's hand that was an unwilled act, or the movement of the hand may have been a willed act but the event of the hand coming into contact with the [complainant's] buttock was an event that was not foreseen or intended. Her Honour apparently approached the case on the basis that the question was whether the event of the hand touching the buttock occurred by accident. In the particular circumstances of this case, the respondent submits that it made little difference to the outcome whether the magistrate approached it in this way, or had considered it on the basis that it was the movement of his arm that was an unwilled act.

49 In Cox v The Queen (Unreported, CCA SCt of WA, Library No 940530, 27 September 1994), Seaman J (with whom Rowland J agreed) stated that:

In my opinion, the meaning of indecent assault is that given by Lord Goddard LCJ, with whom the other members of the Divisional Court agreed, in Beal v Kelly (1951) 35 Cr App R 128 at 130 as follows:

In my opinion the definition given in Archbold's Criminal Pleading, etc (32nd ed., p 1067), of an indecent assault is perfectly right: 'An assault accompanied with circumstances of indecency on the part of the prisoner', that is to say, indecency offered towards the person alleged to have been assaulted'.

50 In Hall v Fonceca [1983] WAR 309, Smith and Kennedy JJ held that 'an intention on the part of the assailant either to use force or to create apprehension in the complainant is an element in an assault' (314). Their Honours noted that Macrossan SPJ apparently had no doubt in R v McIver (1928) 22 QJPR 173 that the relevant intention on the part of the assailant was necessary to constitute an assault under the Code. They also noted that it was generally accepted that s 222 of the Code adopted the common law as understood at the time that the Code was enacted and that '[a]t common law, the weight of opinion clearly favours the view that there must be, on the part of the assailant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted ' (313). It is to be noted that when, as is usually the case, the word 'assault' is used at common law to mean a battery, it simply means an act by which a person intentionally applies unlawful force to the complainant - the 'actual' intended use of unlawful force to another person without his consent: Fagin v Metropolitan Commissioner of Police [1969] 1 QB 439, 444 (James J).

51 The respondent noted in her submissions that Hall v Fonceca involved a common law claim for damages and accordingly, '[t]here is room to question how settled the law can be said to be in regard to the importing of the element of intention in relation to an actual application of force' and that the decision 'cannot be said to be binding as to the interpretation to be taken to be the law on criminal matters' (respondent's further outline of submissions, par 19). However, the respondent did not expressly submit that the reasoning in Hall v Fonceca should not be applied to determine the elements of the offence with which the appellant had been charged. The appellant did not contend in his further submissions that intention was not an element of the offence.

52 Accordingly, I do not propose to further dissect the reasoning in Hall v Fonceca. I accept and adopt the reasoning to find that the prosecution was required to prove that the appellant intentionally touched the complainant as an element of the offence charged. I would add, however, that I consider that the reasoning in Hall v Fonceca applies to those provisions of the Criminal Code that make it an offence to commit an assault.

53 At common law, an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the complainant: see Archbold: Criminal Pleading, Evidence and Practice 2012, at 19166. The element of intent distinguishes an assault from the unintentional contact between persons that is an everyday occurrence. In my view, the Code imports that element by the very use of the word 'assault'. It would seem unlikely that it was intended that every application of force within the meaning of s 222 would constitute an offence under, for example, s 324 of the Code for which the person applying the force would be criminally responsible unless the provisions of s 23A and/or s 23B applied. That is not a conclusion that is contrary to the requirement that the Code is to be construed as a statutory instrument. It merely reflects that the Code is to be interpreted in a particular context - as was recognised by the Full Court in Cox v The Queen and in Hall v Fonceca.

54 Accordingly, the offence created by s 324 of the Code requires the prosecution to prove beyond a reasonable doubt that the accused intentionally struck or touched the complainant or otherwise applied force of some kind (s 222 of the Code) without consent 'accompanied with circumstances of indecency' (Cox v The Queen). An unintentional, accidental touching of a person would not constitute an assault. Further, such unintentional contact would not be indecent; it would not be offensive to common propriety and it would lack the necessary sexual character.

55 It is, therefore, in my view unnecessary to apply either s 23A or s 23B of the Code to determine whether an accused is criminally responsible for an indecent assault. However, I note that in Drago, Murray J observed in relation to the offence of indecent dealing (the offence formerly created by s 189 of the Code and which had, as an element, an assault), that:

... in relation to an offence such as this, under the Code, s 23, the matter is very clear. Criminal responsibility for an indecent dealing will flow from an act which is willed, or done deliberately or consciously (502 - 503).

56 That passage might conflate voluntariness with intent - see R v Falconer at 39. A person might voluntarily - deliberately - move an arm but not intend to touch another person in a particular area of their body by that movement.

57 The respondent posited a set of circumstances in which it was said that s 23B of the Code could apply to an assault. However, the circumstances suggested did not directly raise the issue that the magistrate was required to determine in this case: whether the appellant intentionally touched the complainant. In my view, s 23B of the Code had no relevance to that issue and the magistrate erred when she referred to the section in her reasons.

58 The proposition that her Honour extracted from the judgments in Falconer and Kaporonovski was that the defence of accident excluded from criminal responsibility the consequences of an act that was 'unintended' and 'unlikely and unforeseen'. It might be readily concluded in this case that contact was likely and foreseeable if the appellant had endeavoured to squeeze past the complainant and Ms Cheong. However, the appellant's criminal responsibility for any subsequent contact would not be determined by that finding. The appellant could not have been criminally responsible for the alleged assault if the prosecution had merely negatived a 'defence' under s 23B by establishing that it was likely or foreseeable that he would make contact with the complainant by taking the route that he had chosen to get to the escalator. That is because 'accidental' (that is, unintentional) contact would not constitute an indecent assault even if it was 'likely and foreseeable'.

59 However, as I have indicated, the appellant did not complain that the magistrate had erred by referring to s 23B in her reasons and, more importantly, it was not an error which, in my view, resulted in a miscarriage of justice as her Honour directed herself to the question of whether the appellant had deliberately touched the complainant according to the evidence. Indeed, her Honour found that the appellant had targeted the complainant by deliberating choosing the route that he took so as to bring himself into close proximity with the complainant. Accordingly, her finding of guilt did not rest on notions of foreseeability.

60 It was apparent that the real issue that the appellant sought to raise by proposed ground 3, as initially pleaded, was whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence (including the evidence as to the amount of time that the appellant spent on the upper concourse of the train station). The gravamen of the appellant's complaint was that there had been a miscarriage of justice as it was not open to the magistrate to have been satisfied that the prosecution had established beyond a reasonable doubt that the appellant had intentionally touched the complainant on the buttocks. The parties agreed at the commencement of the appeal that this was the issue that the appellant had sought to raise.

61 Section 8(1)(a) of the Criminal Appeals Act 2004 (WA) (the Act) provides that an appeal may be allowed on grounds that include that the court of summary jurisdiction made an error of law or fact or both law and fact. I consider that the magistrate erred in law by referring to s 23B of the Code but that her Honour defined the issue to be determined in a way that was unaffected by that error. The appellant did not complain that her Honour had erred by referring to s 23B but, in any event, the proviso in s 14(2) of the Act would have applied (no substantial miscarriage of justice).

62 Section 8(1)(b) of the Act provides that an appeal may be allowed on the ground that there was a miscarriage of justice. Obviously, a miscarriage of justice will occur where a guilty verdict was unreasonable or could not have been supported by the evidence: see, for example, Hunt v Callaghan [2011] WASC 10 at [150].

63 Section 39(1) of the Act provides that an appeal court must decide an appeal on the evidence and material that was before the lower court; that is, the appeal is by way of a rehearing on the evidence that was received in the Magistrates Court (subject to s 39(3), s 39(4) and s 40).

64 The court is obliged to review the whole record of the trial and to make its own independent assessment of the evidence. However, it must make due allowance for the 'natural limitations' in an appellate court proceeding on the record. Those limitations include that, typically, the appellate court does not get taken to or read all of the evidence received in the trial; the trial judge had the benefit of seeing and hearing the witnesses and the trial judge was the person entrusted with the primary responsibility of determining guilt or innocence: AK v The State of Western Australia [2006] WASCA 245 [37] (Pullin JA).

65 The test to be applied were it is contended that there has been a miscarriage of justice because the verdict was unreasonable or could not be supported by the evidence is as stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 493:

The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. ...

...

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

And as the Court observed in Davies and Cody v The King ..., the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

'Not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.' (emphasis added)

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

68 The High Court recently confirmed that M v The Queen authoritatively stated the circumstances in which a conviction may be set aside on the ground that the verdict was unreasonable or could not be supported having regard to the evidence: Michaelides v The Queen [2013] HCA 9; (2013) 296 ALR 1; (2013) 87 ALJR 456.

69 The respondent was required to prove the appellant's state of mind - a subjective intention to touch the complainant - beyond a reasonable doubt. The approach that the magistrate was required to take to determine whether the respondent had discharged that onus was explained by Debelle J in Dall v Police [2008] SASC 85 - a case that was, in several respects, similar to this matter. In brief summary:

(a) The question of whether the appellant had the requisite intent involves drawing an inference from the facts as found.

(b) Intention is not to be presumed from the act of touching. Obviously, an accused cannot be presumed to have intentionally touched a complainant from the mere fact that he or she did so. However, the nature of the touching will, of course, be relevant to the question of intention.

(c) Consequently, intention may be inferred from the doing of the prescribed act and the circumstances in which it was done. An accused's intention may be inferred from what he or she did and said.

(d) The prosecution must establish that the only reasonable inference to be drawn from the facts as found was that the accused had the required intent.

70 The process of drawing an inference that is adverse to an accused person involves three steps. The tribunal of fact is required to first determine the facts relevant to the subject matter of the inference. It should then consider what inferences might possibly be drawn from those facts to determine whether the inference alleged is a reasonable inference. Finally, it must determine whether that inference is the only reasonable inference to be drawn from the facts that have been found. An inference that is adverse to the accused must not be drawn if there is any reasonable inference available on the facts as found that is consistent with innocence; that is, the tribunal of fact must entertain a reasonable doubt where any inference consistent with innocence is reasonably open on the evidence.

71 I have concluded that it was not open to her Honour to have been satisfied beyond a reasonable doubt that the appellant deliberately touched the complainant on her buttock. The reasons for that conclusion can be best explained by separately considering the intermediate findings on which the magistrate's ultimate finding of guilt was based.

Findings about the route taken by the appellant

72 The magistrate commenced by finding that she accepted the evidence of the complainant and Ms Cheong. She summarised their evidence as being to the effect that the appellant had deliberately walked behind the complainant, had 'brushed up against' the complainant and had 'placed' his hand on her buttock as he had walked past (reasons, par 27).

73 The finding that the appellant had deliberately walked behind the complainant was based on the evidence of the complainant and Ms Cheong and what was depicted in the CCTV film. As to the CCTV film, the magistrate observed that:

The CCTV footage shows that the path [the appellant] took behind [the complainant] and [Ms Cheong] was not the most direct route to the lower concourse. The path that he took was a deliberate diversion as he had to walk around the timetable board to travel down the escalator (reasons, par 23).

74 The magistrate also found that the CCTV film showed that 'the route taken by [the appellant] was not the route a person would take to get to the lower train platform' (reasons, par 27).

75 I have viewed the CCTV footage a number of times. It shows:

(a) Contrary to her evidence at ts 5, the complainant was not leaning against or with her back towards either of the cabinets that housed the bus timetables and route maps.

(b) Contrary to the findings made by the magistrate, the appellant did not walk around a cabinet to pass behind the complainant. Rather, the route chosen by the appellant seemingly led directly to the escalator. The CCTV film does not show that the path taken by the appellant involved a 'deliberate diversion' from the route that he might have been expected to take to the escalator; nor does it show that the appellant had deviated in his path so as to walk behind the complainant.

(c) The gap between the timetable cabinet and where the complainant and Ms Cheong were standing was narrow, but it did not appear to be so narrow as to support a finding that the only reasonable inference was that the appellant had deliberately chosen that path so that he could 'brush up against' the complainant and indecently touch her as he did so. It is difficult to ascertain from the CCTV film precisely what had occurred as the appellant passed by the complainant. However, the film does not show the appellant 'squeezing' past the complainant. It also does not show the appellant brushing 'up against' the complainant (rather than brushing her in passing) or that he had targeted her as he walked across the upper concourse to the escalator.

76 Further, the magistrate appears to have overlooked a significant correction made by the complainant in her evidence as to where she was standing when the appellant passed behind her. The evidence was that:

(a) Exhibit 1 comprised five photographs marked 1 to 5. Photographs 1 and 2 showed the two cabinets housing the bus timetables and route maps. The cabinets were located immediately in front of the escalator. A person approaching the escalator from the direction from which the appellant came would have been expected to pass between the cabinets.

(b) The complainant was shown photographs 1 and 2 before the CCTV film was played. She was asked to mark on the photographs an 'X' to indicate the spot where she had been standing prior to the appellant passing behind her. She indicated that she had been standing to the right of the cabinet that was on the right hand side of photograph 1 (ts 12). The appellant would not have passed between the cabinets to get to the escalator if the complainant had been standing where she had marked the photographs. It would have been open to infer that the appellant had deviated from the route that he might have been expected to take so as to walk behind the complainant if she had been standing at the spot she had marked on the photographs. That was what the magistrate found had, indeed, occurred.

(c) The complainant was shown the CCTV film (recorded by 'WTF 201'). The following exchange then occurred (at ts 15 and while the complainant was still giving her evidenceinchief):

Now, in photograph number 1, I see there's two noticeboards. Can you see that?---Yes.

Now, as you can see on the video, we can see only one noticeboard?---Yes.

Where is the second noticeboard?---Behind the - out the camera view.

Okay. So you indicated earlier on those photographs where you were standing?---Yes.

So whereabouts were you standing?---I think it must be the other noticeboard.

I think you marked those first three photographs with an X where you were standing?---Yes. But I'm not - number 1, 2 and 5.

What I'll get you to do, is if you could mark where - having seen the video, where you were standing, or where you think you were standing now - - -?---Yes.

- - - with a Y, a different letter? Okay. My feet?

(d) The complainant marked photograph 1 with a 'Y' showing that she had been standing next to the left hand cabinet as depicted in the photograph. That spot placed her as standing between the cabinets (and see also the mark 'Y' on photograph 2).

77 Ms Cheong was asked in her evidenceinchief to mark on photographs 1 and 2 where she was standing when the appellant walked behind the complainant. She marked the spot with the letter 'A'. Her markings indicated that she was standing between the cabinets immediately in front of the escalator.

78 Accordingly, the evidence given by the complainant (following her correction as to where she was standing) and Ms Cheong indicated that:

(a) Contrary to the findings made by the magistrate, the appellant had taken a direct route to the escalator and he had not deviated in the route that he had chosen so as to be able to walk behind, and in close proximity to, the complainant. The evidence given by the complainant and Ms Cheong was consistent with what was recorded on the CCTV film.

(b) There was no basis for finding that the appellant had taken a route that 'was not the route a person would take to get to the lower train platform'. The cabinets were located immediately in front of the escalator. The appellant walked between the cabinets. That was the most direct path to the escalator. It is clear that this was the path that the magistrate considered would have been the most direct route to the escalator and accordingly, the route that she would have expected the appellant to have taken if he had not 'targeted' the complainant (see her finding that the path taken by the appellant was a deliberate diversion 'as he had to walk around the timetable board to travel down the escalator').

(c) The complainant and Ms Cheong were standing between the cabinets. It was necessary for the appellant to either go behind the complainant or behind Ms Cheong in order to proceed directly to the escalator. It is apparent from the CCTV film and photographs 1 and 2 that the space either side of them would have been limited.

79 The magistrate found that the appellant 'took a route to be able to brush up against [the complainant]'. That was a finding about the appellant's intent that was obviously adverse to him. I do not consider that it was open to the magistrate to find, in effect, that the only reasonable inference available on the evidence was that the appellant deliberately chose a path that brought him into close proximity with the complainant, with the further inference that he had done so in a way that was intentionally opportunistic.

80 The finding that the appellant had deliberately taken a particular route was a significant intermediate finding for the ultimate finding of guilt. That is clear from the reasons given by her Honour. It formed part of the facts from which the magistrate concluded that the appellant had targeted the complainant.

81 Further, her Honour included a reference to the appellant deliberately walking behind the complainant in defining the issue to be determined. That reflected the way in which the prosecutor had opened the case: one basis on which it was to be inferred that the appellant had intentionally touched the complainant was that the appellant had deliberately chosen a path across the upper concourse that had brought him into close proximity with the complainant.

82 The magistrate found that '[the appellant's] evidence that he did not brush past [the complainant] and touch her on the buttock, but if he did it was accidental has no credibility at all' (reasons, par 27). As was earlier explained, it is possible, although not certain, that the appellant did deny at one point in his evidence that he had touched the complainant. However, his evidence was substantially to the effect that he had no recollection of the incident.

83 The appellant's evidence was to be put to one side however it was to be understood - the question still remained whether the prosecution had proved each element of the offence beyond a reasonable doubt. That was the approach that the magistrate was required to take once she had rejected the appellant's evidence.

Findings about the appellant's conduct following the incident

84 The third finding made by the magistrate was that the appellant's conduct after the incident had occurred was consistent with 'earlier deliberate behaviour of brushing past [the complainant] and touching her on the buttock' (reasons, par 28). Her Honour identified five matters in that regard: the appellant returned to where the complainant was standing and remaining opposite her for 9 minutes; the appellant made no attempt to purchase a newspaper; the appellant made eye contact with the complainant - 'he just stood and watched her'; the appellant followed the complainant down the escalator approximately 20 seconds after she had descended; and the appellant touched the complainant on her shoulders as he descended the escalator.

85 The first of those matters has already been considered. As to the second matter, it is clear from the CCTV film that the appellant made no attempt to walk to the newsagency to purchase a newspaper. It was open to conclude that the appellant's evidence about why he had returned to the upper concourse was confabulation given his limited recollection of the incident and the surrounding circumstances. Obviously, that conclusion would be relevant to the appellant's credibility.

86 However, no weight could be placed on any denial by the appellant that he had touched the complainant or indeed, on any evidence that he had given about the surrounding circumstances because of his limited recollection. That conclusion only meant that it was not open to acquit the appellant by accepting his evidence. The prosecution was still required to prove his guilt beyond a reasonable doubt; in particular, that the only reasonable inference to be drawn from the evidence was that the deliberately touched the complainant on her buttock.

87 As to the third matter, the complainant gave evidence that the appellant was staring at her and she kept making eye contact with him (ts 7). She became 'a bit worried' as a result. That evidence reflected her perception of the appellant's behaviour. Without doubting her evidence, it is reasonably possible that the complainant felt that the appellant was staring at her and she kept making eye contact with him out of a selfconscious awareness of what had earlier occurred. The complainant may have misinterpreted the appellant's behaviour because she thought that the contact that had occurred earlier was accidental but nevertheless, 'a bit strange'.

88 The CCTV film does not identify where the complainant was standing after the appellant returned to the upper concourse of the station. However, it does show that the appellant did not consistently look in the direction of where the complainant had apparently moved; rather, the appellant looked about him in several directions for the minute or so that he was on the upper concourse. It must also be remembered that the complainant descended to train platform approximately 48 seconds after the appellant had returned to the upper concourse.

89 As to the fourth matter identified by her Honour, the fact that the appellant descended the escalator shortly after the complainant could only have been regarded as significant if it was seen as part of a course of conduct by which the appellant had targeted the complainant. The fact was otherwise just a coincidence.

90 A similar observation can be made about the last matter. It is reasonably possible that the appellant made accidental contact with the complainant's shoulders as he descended the escalator merely because he had gripped the edge of the escalator rail and the complainant was seated, leaning against the escalator. The contact only assumes a sinister connotation if it was viewed as part of course of conduct that involved the complainant being targeted. As has already been noted, the appellant had his hands on the black handrail and he did not appear to move his hands as he reached the bottom of the escalator.

91 The magistrate found that the appellant's conduct following the incident was consistent with his earlier 'deliberate behaviour of brushing past [the complainant] and touching her on the buttock'. That is, the magistrate interpreted the appellant's conduct from the perspective of the findings that she had made regarding the incident. His conduct was much more ambiguous on the evidence that he did not deliberately deviate from most direct route to the escalator in order to pass behind the complainant. It was not open to the magistrate to infer that he targeted the complainant as he approached her on that evidence.

92 The complainant stated in her evidence that the appellant's hand was on her bottom for two to three seconds. That would suggest that the contact was not accidental. However, the CCTV film indicated that the appellant did not linger in passing the complainant - he passed in approximately one second. It was also relevant that the complainant thought that the contact might have been accidental and it was only when the appellant returned to the upper concourse that she became concerned.

93 The issue to be determined as formulated by the magistrate reflected how the case was contested at trial. However, her Honour's formulation may have obscured the ultimate question to be decided. The appellant's guilt was not to be determined by choosing between competing possible inferences. Rather, the question was whether the prosecution had proved that the only reasonable inference to be drawn from the facts as found was that the appellant had deliberately touched the complainant on the buttock. The appellant was entitled to the benefit of any reasonable inference consistent with innocence.

94 In my view, it was not open for the magistrate to have been satisfied that the only reasonable inference to be drawn from the evidence was that the appellant intended to touch the complainant on the buttock. Contrary to the finding of the magistrate, the appellant took the most direct route to the escalator; he did not deviate so as to pass behind the complainant. It was necessary for him to pass behind either the complainant or Ms Cheong to get to the escalator. The CCTV film indicated that he passed quickly behind her. The finding that the appellant targeted the complainant was an inference that was obviously adverse to him; indeed, it appears to have been critical to the magistrate's finding of guilt. However, in my view it was not the only reasonable inference to be drawn from the evidence.

95 The appellant returned to the upper concourse. Although he could not explain why he had done so, he did not stay on the upper concourse for long (again, contrary to the finding of the magistrate). The complainant became concerned as she felt that the appellant was staring at her. However, the CCTV film shows that he was looking in several directions during the time that he was on the upper concourse.

96 The complainant descended the escalator to the train platform. The appellant followed shortly afterwards and made contact with the complainant's shoulders as he travelled down the escalator. However, the CCTV film showed that his hand remained on the black handrail of the escalator. He made no overt move to make contact with the complainant.

97 I do not consider that the only reasonable inference that could be drawn from those circumstances is that the appellant intentionally touched the complainant on the buttock. Accordingly, I have concluded that it was not open to the magistrate to be satisfied beyond a reasonable doubt that the appellant was guilty of the offence with which he had been charged.

98 The appellant will be granted leave to appeal on proposed ground 3 and the appeal will be allowed. I consider that there was a miscarriage of justice as the verdict of guilty was unreasonable or could not be supported by the evidence; alternatively, there is a substantial possibility that the magistrate was mistaken in finding the appellant guilty on the evidence that was adduced in the trial.