Plaintiff v First Defendant

SEXUAL ASSAULT - Where, ten days after first meeting, AB, from behind, touched CD, fleetingly, on side of waist over heavy clothing while she queued at shop on public footpath - Where incident captured on CCTV - Whether waist-touch "sexual" touching - Whether judge applied wrong test in concluding waist-touch sexual - Whether, on facts found, not open in law to conclude waist-touch sexual - Whether waist-touch no more than attempt to get CD's attention - Whether failure to have regard to relevant considerations or constructive failure to exercise jurisdiction - Whether reasons inadequate.

STALKING - Where course of conduct alleged encompassed four separate incidents over two-week period - Whether no evidence for findings on some particulars - Whether reasons inadequate - Crimes Act 1958 (Vic), s 21A.

CREDIBILITY - Where judge made positive credibility findings about CD as a witness - Whether findings unreasonable - Whether reasons inadequate.

RECORD OF INTERVIEW - Where judge made adverse findings about AB's approach in police interview - Whether findings unreasonable - Whether judge employed incriminating conduct reasoning - Whether failure to have regard to AB's exculpatory account of incidents - Whether constructive failure to exercise jurisdiction - Whether reasons inadequate.

BIAS/APPREHENDED BIAS - Whether judge's findings and reasons displayed bias or apprehended bias.

RELIEF - Certiorari - All three findings of guilt quashed - Mandamus - Where arguable case on stalking remaining - Stalking charge remitted to County Court for rehearing - Where, on sexual assault, only order open to County Court was to dismiss charges because not open to conclude either touching sexual - Whether mandamus, prohibition or no further order appropriate on sexual assault charges - Parties invited to make further submissions on consequential relief on sexual assault charges.

AMICI CURIAE - Court received assistance from amici curiae on meaning and scope of sexual touching and other matters - Victorian Bar Pro Bono Scheme.

1 On an appeal (by a hearing de novo) from the Magistrates' Court to the County Court, AB[1] was found guilty of two charges of sexually assaulting CD and one of stalking her.[2] He was sentenced to pay an aggregate fine of $10,000, without conviction.

2 On an application for judicial review in this Court, AB submits that these findings of guilt are vitiated by jurisdictional error and error of law on the face of the record. I am satisfied that the judge made errors of these kinds and that the application must succeed.

3 Necessary to his decisions on sexual assault were the judge's conclusions that AB's kiss to CD's cheek and his fleeting touch to the side of her waist over heavy clothing each amounted to "sexual" touching, an element of that offence. True it is that the applicable statutory test potentially allows a broad range of physical contact to amount to sexual touching. However, on no rational application of that test to the facts as found, or to the evidence before his Honour, could either instance of touching be classified as sexual. Strikingly, the judge failed even to advert to the provisions in which a key part of the statutory test is found. Instead, his Honour must have applied the wrong test, or misapplied the right test, which explains his otherwise inexplicable conclusions on this element.

4 In addition, on all three charges, the judge erred by failing to have regard to relevant matters, including critical parts of AB's account, and by giving inadequate reasons. Further, there was no evidence for his finding on a material particular of the charge of stalking.

5 In the result, each finding of guilt must be quashed. Since an arguable case on stalking remains, that charge will be remitted to the County Court for rehearing. The parties and amici curiae submitted that, if, on the evidence before the judge, it could not reasonably be concluded that AB engaged in sexual touching, it would be open to make an order in the nature of prohibition in respect of any rehearing of the sexual assault charges. On reflection, it may be that another order, or no further order, should be made in respect of those charges. I shall hear the parties on this issue after they have considered these reasons.

6 As this is a long judgment, I shall, at this stage, summarise or refer to some of the evidence, the judge's findings and reasons, the key statutory provisions on sexual touching, and my reasons for upholding AB's principal grounds.

7 Thereafter, I shall move to a far more detailed treatment of those topics and the interpretation of the provisions on sexual touching, as well as to the other grounds agitated by AB. Finally, I shall turn to the question of appropriate relief.

8 The events the subject of the charges occurred on four separate days over a fortnight in June 2018.

9 The first charge of sexual assault arose in this way. On 5 June, after work, CD walked to her usual city tram stop and boarded a tram for home. AB sat down on the spare seat beside her. Though they had never met, the two engaged in friendly conversation over the next 30 minutes. As the tram neared CD's stop, AB invited CD on a date, which she declined. Just after CD left the tram, so did AB, despite his stop being much further down the line. In the course of chatting on the footpath, CD declined AB's request for her phone number. CD, however, asked AB for his number, which she put into her phone, and promised to text him (but without intending to do so). As they went to part, instead of shaking her hand when she offered it, AB pulled CD closer, leant in and kissed her on the cheek. They then bid each other good evening. CD did not consent to the kiss. She said that she felt "shocked, violated, just uncomfortable, not safe".

10 Two days later, on 7 June, AB approached CD at her usual city tram stop, and inquired why she had not texted him. CD answered, "Because we met on a tram", and said that she had a boyfriend (which was untrue). She told him to stand elsewhere and not to follow her. The judge found that AB followed CD onto the tram she boarded shortly thereafter, and that, out of concern, CD phoned her flatmate about AB's presence.

11 The second charge of sexual assault arose out of events that occurred eight days later, on 15 June. The incident was captured on CCTV. After work, CD queued with a colleague at a shopfront on the footpath just across the way from her usual city tram stop. AB walked by. As he did so, from behind but without turning to look at her, he reached out and touched CD's right waist, fleetingly, over her heavy winter clothing. After taking a few steps more, AB stopped, pivoted, looked at CD and smiled. CD turned to her left and saw AB standing there, smiling. Neither said a thing. CD turned back to face the shop. AB then did an about-face and walked out of sight. About 30 seconds later, he came back past CD and her colleague but on the far side of the footpath. They were still facing the shopfront and had their backs to him. AB did not look at or seek to engage CD, but just kept walking, with eyes front. CD said that the waist-touch "was a very, like, intimate touch, not a stranger", and that she felt "violated". She also said it was a "trying to get my attention type touch".

12 Finally, on 19 June, AB and CD saw each other from a distance at the same city tram stop. AB boarded a Number 3 tram. CD then took the tram immediately behind it, which was her usual Number 6. At a stop down the line, the Number 6 turns left onto AB and CD's common home route, whereas the Number 3 goes straight ahead. At that stop, AB switched to the Number 6. CD was near the door of the tram. As AB entered, he saw CD and greeted her cheerily, but she did not respond. He moved to the front of the tram. While CD did not look in AB's direction, she could see (in a reflection) that he was looking at her. As the tram neared CD's stop, AB moved back towards CD and said, "Have a great evening." The judge recounted CD's evidence-in-chief that, as she alighted, AB hit the tram in annoyance at her failure to respond to him, and that she felt scared in consequence.

13 When interviewed by police, AB said that he leant in to kiss CD on the cheek "as a gesture ... of a good way, not like it's a man and a woman", but stopped short of actually kissing her because he "had just met her and maybe that would be too much". When he touched CD's waist, he did so "in a very friendly and nice way to ... show her that [he was] there". He said that during neither of the first two meetings did CD make it clear that she did not want to speak to him. On the contrary, his impression was that everything was fine. He also said that at no stage during any of their interactions did CD seem fearful. He denied following CD onto the tram on 7 June or hitting the tram on 19 June. He said, in effect, that CCTV footage would show that there was no sexual assault or stalking.

14 On the first charge of sexual assault, the judge found that the cheek-kiss occurred. His Honour also concluded that the kiss "clearly was of a sexual nature, given that the two had barely met and ... in a most informal way, both being passengers on the tram".

15 On the charge of sexual assault involving the waist-touch, his Honour concluded that, "having regard to the area where [AB] touched [CD], [it] must be held as a touching of a sexual kind".

16 It is unclear whether the judge's findings on stalking embraced the events on all four of the occasions on which AB and CD interacted. It is clear, however, that important to his Honour's ultimate decision on that charge were his findings that AB loitered at CD's usual tram stop and that he followed her.

17 On 1 July 2015, the offence of indecent assault was abrogated and replaced with the offence of sexual assault. By s 40(1) of the Crimes Act 1958 (Vic) ("the VCA"), sexual assault is committed if:

a) a person ("the accused") intentionally touches another ("the complainant");

b) the touching is sexual;

c) the complainant does not consent to the touching; and

d) the accused does not reasonably believe that the complainant consents to the touching.

18 In the main, this application concerns the second element: sexual touching.[3] On the meaning of "'sexual', in relation to touching," s 35(1) of the VCA directs attention to s 35B. Section 35B(2) provides that:[4]

(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

(c) any other aspect of the touching, including the circumstances in which it is done.

19 Section 48B(a) provides that it is no defence to sexual assault that the accused was under a mistaken but honest and reasonable belief that the touching was not sexual.

20 Sexual assault was designed to replace "the outdated and ambiguous concept of 'indecency' with the clearer concept of sexual touching without consent".[5] As we shall see, however, the new provisions are, in some respects, not so easily construed, and do not lend themselves to a simple statement of the test for when touching will be sexual.

21 Nevertheless, I have concluded that the question whether an instance of touching was sexual is to be determined objectively, having regard to the considerations mentioned in s 35B(2), and to the overriding requirement in s 40(1)(b) itself that the touching be "sexual". However, some subjective considerations may be relevant to that determination. One example is whether the accused had a sexual purpose specified in s 35B(2)(b). Another is whether the accused had a non-sexual purpose for the touching (as distinct from a belief of the kind mentioned in s 48B(a)).

22 In my view, neither the judge's findings of fact nor any aspect of the evidence could allow either instance of touching to be held to be sexual. I have scoured the evidence and the judge's reasons for something that might justify or explain the impugned conclusions. But I have found nothing.

23 Only by application of the wrong test, misapplication of the right test, irrational reasoning and/or guesswork could the conclusions that these instances of touching were sexual be reached. Limited though they are, the judge's reasons show that he erred in these ways. Astonishingly, his Honour made no mention of s 35B(2) or its terms either in his reasons or during the hearing (nor, for that matter, did counsel raise this provision). The facts as found by the judge were incapable of warranting a conclusion, in law, that either instance of touching was sexual. No aspect of the evidence, absent speculation, was capable rationally of establishing any fact that might justify a conclusion of sexual touching.

24 I also consider that the judge erred by failing to have regard to AB's explanations for the charged instances of touching. In particular, his Honour did not even mention that AB told police that he went to kiss CD on the cheek "as a gesture ... of a good way, not like it's a man and a woman", or that he said that he was just trying to get CD's attention when he touched her waist.

25 Further, the judge did not adequately explain why he concluded that these instances of touching were sexual, and I find that his Honour fell into error in this respect, too.

26 Accordingly, the findings of guilt on the sexual assault charges are vitiated by jurisdictional error and error of law on the face of the record.

27 I accept that the finding of guilt of stalking is also tainted with vitiating legal errors.

28 One example arises out of the judge's finding that, during their interaction on the second occasion, despite CD telling him not to follow her, AB did just that - by following her onto the tram she took shortly thereafter. But, on closer analysis, CD's own evidence was incapable of proving that AB had boarded the same tram at all. Instead, it showed that, after CD's remarks, the two went their separate ways.

29 The judge's reasons on stalking were inadequate as well. For example, it is at least unclear whether his Honour found that AB hit the tram during his final interaction with CD, an allegation for which, the Director conceded, there was in the end no evidence. For this reason, and others, it is unclear on which of the instances of conduct alleged the judge reached the finding of guilt of stalking.

30 On one view, the foregoing conclusions make it unnecessary to determine AB's other grounds of review, since their success or failure could not alter the orders that I might make. That said, as those grounds were argued fully, it is appropriate to determine them as well.[6]

31 Before turning to my further reasons, I pause to make these remarks.

32 The meaning and ambit of the element of sexual touching in the offence of sexual assault is a matter of first importance, not only to the parties in this matter, but also to those who may be involved in other cases of this kind, and to the administration of criminal justice more generally. While sexual assault replaced indecent assault in Victoria seven years ago, there is, remarkably, only scant authority on sexual touching. As a result, in order to address some of the issues raised by AB, it has been necessary to consider not just the evidence and findings in the County Court, but also, for the first time in this Court, the statutory test for this element. This interpretive task required close consideration of the "new" provisions, their legislative history and associated extrinsic materials, and related authorities in this and other jurisdictions.

33 AB engaged solicitors and counsel in the courts below, but he was, by his own choice, unrepresented in this Court. While it became apparent that he is intelligent and articulate,[7] AB is neither a lawyer nor legally trained. In addition to drawing written submissions and putting oral argument on the construction of the sexual touching provisions, AB sought to mount a case for relief on several other fronts. This, in his circumstances, was no easy feat.

34 The Director, as expected in a matter of this kind, was represented by counsel of considerable experience in the criminal law. And, as I have come to expect from them, Ms Mahady and Mr Barr put the Director's position with skill and vigour. They made sensible concessions and assisted the Court considerably, including with detailed written and oral submissions on all issues, including the major interpretive task.

35 Against that background, after the first day of the substantive hearing in this Court and before the scheduled second day, I informed AB that he could apply to the Victorian Bar's Pro Bono Scheme for the assistance of counsel in the further presentation of his case. While he was unsure whether he would meet the means test, he declined that opportunity anyway. Why? Because he wanted to appear for himself. Fair enough.

36 In the alternative, I raised the possibility of my calling for the assistance of amici curiae, particularly on the question of the meaning and scope of sexual touching and whether there was any evidence capable of proving that element of each charge of sexual assault. Neither AB nor the Director objected to this course. In the event, I called for such assistance.

37 Happily, Mr Danos and Mr McAuliffe answered the call. As amici curiae, they conducted extensive research and other preparation, provided detailed written and oral submissions, and otherwise appeared for three days at the substantive hearing, as well as at a mention.

38 I wish to record the Court's warm thanks to Mr Danos and Mr McAuliffe for their considerable assistance. It is in the finest traditions of the Victorian Bar that counsel were prepared to help the Court in these ways. It is also testament to the importance and utility of the Bar's Pro Bono Scheme.

39 I turn now to some of the background to this matter, commencing with the hearing in the Magistrates' Court.

40 At that hearing, which was conducted on 29 January and 7 and 21 February 2019, AB faced the same three charges that ended up before the County Court. The magistrate found him guilty on each charge and imposed an aggregate fine of $10,000, without conviction.

41 On 18 March 2019, AB initiated an appeal against both conviction and sentence to the County Court. As we shall see, however, he abandoned his sentence appeal soon after the judge announced his findings of guilt.

42 While there were mentions on earlier occasions, the appeal proper was heard in the County Court over two days, on 28 and 29 September 2020. The Director and AB were each represented by counsel, neither of whom appeared on the present application.

43 The three charges before the County Court were pleaded in these ways:[8]

[Charge 1] [AB] at Armadale did intentionally touch [CD] in a sexual manner by grabbing both her arms and pulling her close to him and then kissing her cheek without consent and did not reasonably believe that she consented to the touching.

[Charge 2] [AB] at Armadale did intentionally touch [CD] in a sexual manner by brushing his hand against her stomach without her consent and did not reasonably believe that she consented to the touching.

[Charge 3] [AB] at Melbourne between the 6th of June 2018 and the 19th of June 2018 did stalk another person namely [CD] by engaging in a course of conduct which included following her, loitering at the tram stop at the intersection of Swanston and Bourke Street where he knew she caught the tram and directing abusive acts towards her by angrily hitting a sign on a tram when she ignored him, with the intention of arousing apprehension or fear in the victim for her own safety.

44 There are several things to note about the charges. First, while no date was pleaded in Charge 1, the judge granted a prosecution application (which was unopposed) to amend the charge by inserting the words "on or about 6 June 2018" after the word "Armadale". This amendment, the prosecutor explained, reflected some evidence given in the Magistrates' Court and CD's "concession ... that her recollection of the exact date might not be concrete". As we shall see, while CD, in her evidence before the County Court, appeared to settle on 6 June as the correct date, she conceded that it could have been 5 June. Other evidence (namely, AB's account combined with police observations of CCTV footage) showed that the events alleged could not have happened on 6 June, but must have occurred on 5 June.

45 Secondly, apparently for the same reasons, the dates pleaded in Charge 3 were amended (again, unopposed) by substituting the words "between on or about 6 and 19 June 2018" for the words "between the 6th of June 2018 and the 19th of June 2018".

46 Thirdly, while no date was pleaded in Charge 2 either, there was no dispute that the incident giving rise to that charge occurred on 15 June 2018. So much is clear from the date stamp on the CCTV recording of the incident. There does not appear to have been any amendment to this charge in the County Court.

47 Fourthly, while Charge 2 alleged that the incident occurred at Armadale, again, there was no dispute that it occurred in Melbourne (in the city). No amendment was sought on that score either.

48 Fifthly, Charges 1 and 2 both alleged that AB intentionally touched CD in a sexual "manner". As we have seen, s 40(1)(b) of the VCA requires proof that "the touching is sexual". The word "manner" is not mentioned. While, at one stage, AB sought to make something of this discrepancy between the pleaded words and the requirements of s 40(1)(b), he ultimately abandoned the point. He was right to do so.

49 Finally, Charge 2 alleged that AB "brush[ed] his hand against [CD's] stomach". At one point in his reasons, the judge described the allegation in Charge 2 as "brushing his hand against her stomach and hip". In her evidence, CD said that AB touched "my like hip, lower hip, pelvic area". It is plain from the CCTV footage that AB touched the right side of CD's waist, not her stomach. Moreover, CD did not give any evidence that her stomach was touched. In the County Court, no amendment of the particulars was sought. In any event, AB makes no complaint about this discrepancy either.

50 While the prosecutor could have sought leave to give an opening address prior to calling any evidence,[9] he did not do so. Nor did the judge invite either a prosecution opening or a defence response.

51 Despite giving a broad summary earlier in these reasons, I think it is preferable that I go into more detail about the evidence now. This is especially so in view of the nature of AB's submissions and his grounds for review.

52 The prosecution called three witnesses: CD; her colleague EF;[10] and Detective Senior Constable Andrew Paulet, who is the informant (and the first defendant in this Court).

53 Given the difficulties experienced as a result of the COVID-19 pandemic at the time of the hearing, all witnesses gave evidence over WebEx. The prosecutor appeared via WebEx, but counsel for AB appeared in person.

54 I shall not set out seriatim CD's evidence-in-chief, cross-examination and re-examination. Instead, it is preferable that, where possible, I provide a summary of the substance of her evidence on each topic after the completion of all of those stages of the process. Where it is more difficult to ascertain CD's final position, or where I think it is otherwise appropriate to do so, I shall set out competing or qualifying aspects of her evidence.

55 As we have seen, the relevant events arose out of interactions between AB and CD on four separate days over a two-week period in June 2018. I shall summarise CD's evidence vis-à-vis each day in turn.

First incident (5 June 2018): First meeting and kiss on cheek

56 Despite CD's evidence that the first incident occurred on 6 June 2018, it is not in dispute that the first incident in fact occurred on 5 June.

57 On that day, after work, at about 5:45 p.m., CD boarded her usual tram (the Number 6) at her usual stop near her workplace in the city. This tram stop was in Swanston Street, at its intersection with Bourke Street. CD was heading home (which, for her, meant she travelled south-southeast on Swanston Street and St Kilda Road, and then east-southeast along High Street, towards the south-eastern suburbs).

58 Soon after the journey began, AB sat down in the spare seat beside her. CD and AB had never met before. They engaged in "friendly conversation" for the balance of the trip to CD's home stop, so for "around half an hour". CD agreed that AB had "an unusual accent and manner about him", and that his was a "very strong [foreign] accent". Among other things, AB told CD what type of work he was doing in Australia. He told her where he lived (the general area, not the specific address), which was about 25 minutes further down the line from her home tram stop. He said that he had lived overseas before coming to Melbourne. He said that he was trying to start up a business here. They also discussed where they worked, and what it was like to live in Melbourne. They laughed and had a "nice" conversation. CD agreed that "[i]t wasn't just one person talking" and that she was "giving [AB] some general details about [her] work and [her] background".

59 In evidence-in-chief, CD said that, not long before her home stop, AB asked her out on a date, which she declined. CD was "pretty sure [she] was sort of, like, caught off guard", and could not recall what she said. She was also unsure whether he asked only the once. They did have further conversation, but CD could not recall what was said.

60 CD left the tram at her home stop. AB asked the tram driver to open the door for him, and he alighted there too. CD walked off the road and onto the footpath. AB did the same.

61 At this point, there was more chat between them, including discussion about CD taking AB's phone number. CD said that AB also wanted her number, for which he asked a few times, but she "wasn't comfortable with that", and declined.

62 The conversation got to the point where CD said to him, "I'll have your number." Although she gave some inconsistent answers, ultimately, CD expressly said, in answer to questions from the judge, that it was AB who put his number into her phone. AB said, "Make sure you text me", which he repeated.

63 In cross-examination on these events, however, while her evidence was unclear at times, CD appeared to accept, and then partly retreat from, the position that it was while they were still on the tram and arriving at her stop that AB both asked her out and offered his phone number. CD also conceded that, once they were off the tram at her stop, she, not AB, put his name and number into her phone. The relevant parts of the cross-examination were as follows:[11]

It wasn't long before you came to your stop ... that he had asked you out? - - - Yes.

And in doing so he offered to you his phone number? - - - Yes, after I declined giving him my number.

So the barrister [in the Magistrates' Court] asked, "Okay. Was it not long before your stop came up that he asked you out?" "Yes, that is correct." And you have just accepted that part of it, but the next question you were asked, "And in doing that, did he - he offered to you his phone number?" "Yes." Were you asked that question and did you give that answer at the Magistrates' Court? - - - Yes.

Was the answer you gave in the Magistrates' Court to the question, "And in doing that, did he - he offered to you his phone number?" and your answer, "Yes," was that a truthful answer? - - - Now, no, it wasn't truthful, but at the time it - I thought it was the truth, like - no, because I didn't know - know what to say.

You say at the time you gave the evidence last year it was the truth, in January last year? - - - Yes. Well, I wouldn't have lied, so I thought it was the truth, but clearly it's not the truth because I've had my script previously.

[AB] says that at the time you arrived at your tram stop, he is asking you out and offering you his phone number and that's the timing of when he's asking you that. Do you agree? - - - What, when the second ... tram pulled up he could have got?

No, we are still on the tram at this point. ... Do you agree there's a conversation before you get off the tram about exchanging phone numbers? - - - I don't recall. I don't - I'm not too sure.

Were you asked this question at the Magistrates' Court ... I will just ask it and see if you remember, "And it was during that happening, him asking you out and offering you [his] phone number, that the tram arrived at your stop?" "Yes." Were you asked that question and did you give that answer? - - - Yes.

And was it a truthful answer? - - - Yes, I don't - yes, I don't know. I don't know, to be honest.

Is it after this time that there's been an exchange of conversation about phone numbers that you both get off the tram? - - - I recall him asking me out on a date. I said no. Everyone was looking at me, like laughing, and then I got off the tram, then that's when the phone numbers happened. I don't recall him asking or talking about phone numbers on the tram. I'm not sure if that's just my memory, but that's how I remember it.

And when he gets off the tram and you're talking, the conversation is still about you taking his mobile phone number, isn't it? - - - Yes.

Prior to that, though, he had been offering you his phone number? - - - I don't recall that, but if that's how it happened - yes, yes, no comment. I don't know.

You then at some point put his phone number into your phone, along with his name. Do you agree with that? - - - Yes.

He doesn't - you wouldn't have given your phone over to him? - - - Yes.

Do you agree? You would have - he would have given you his name and the phone number? - - - Yes, I - yes.

And when you did that, you told him that you would text him, didn't you? - - - Yes.

And so at that point you were giving him the impression, whether it was correct or not in your mind - you were giving the impression to him that you were going to text him? - - - Yes.

64 In evidence-in-chief, CD said that, after AB kept saying, "Make sure you text me", she told him to take the next tram "but he didn't". In cross-examination, CD accepted that the tram went past while they were having a conversation about phone numbers.

65 In evidence-in-chief, CD said that, as she was about to leave, AB grabbed her arms, pulled her closer and kissed her on the cheek. In cross-examination, however, CD conceded that, as she put his number into her phone, she put out her hand to shake hands but that he did not take her hand. Instead, it was then that he leaned in as if he were about to kiss her on the cheek, but did not in fact do so. The evidence fell in this way:[12]

Is it right that, as you put his number in, you put out your hand to shake hands with him? - - - Yes, yes.

He didn't take your hand, though, did he? - - - No.

And in fact, at that point, he leaned in as if he was going to kiss you on the cheek, but didn't in fact kiss you on the cheek. Correct? - - - Yes, yes.

After that, did the two of you wish each other a good evening? - - - Yes, probably. Yes.

66 In re-examination, the prosecutor returned to the question whether the cheek-kiss in fact occurred:[13]

[CD], my learned friend asked you about the first incident and he put some questions - and this is when you are both - you are now both off the tram: "I put it to you that you were going - you put your hand out". These are not the exact words, but: "You put your hand out and you were going to shake his hand". Do you remember him asking that question? - - - Yes.

Did he in fact - and you agreed with that proposition. Do you remember that? - - - Yes.

Now, did he in fact shake your hand? - - - No, that's when he like pulled me in.

Now, my learned friend then put to you that he lent in to kiss you - this is at the time when you put your hand out to shake it - he lent in to kiss you on the cheek, but he put to you that he didn't kiss you on the cheek. Remember him saying that question? - - - Yes.

Now, a matter for his Honour, but there was a pause but you said "yeah" to that. Do you remember saying that? - - - I - it - I said "yeah" because I, like, recall - like, it was almost on the lips, like, I think that's what he was referring to because if he was referring to he didn't kiss me at all, that's - I don't know, that's stupid. So I'm guessing he's referring to he, like, kissed me almost on the lips.

Is that how you understood my learned friend's question? - - - Yes, I didn't think that he just meant he did nothing. I wouldn't have agreed with that.

So I will finish off by saying what is your evidence in relation to the act that you say happened? Was there a kiss or not? - - - There was a kiss.

And prior to the kiss, how did he touch you? - - - Like when he pulled me in.

Yes, okay. So he pulled you in and that's when the kiss happened? - - - Yes.

67 In evidence-in-chief, when asked whether she said or did anything "in relation to the invitation for a kiss", CD said, "Definitely not." CD said she felt she was "quite stern on that [she] did not want to go on a date, that [she] didn't want to do anything with him". When asked what she was "feeling" when AB kissed her, CD answered, "Like, shocked, violated, just uncomfortable, not safe." Later in her evidence-in-chief, when asked whether she consented to "that kiss", CD said, "No."

68 As we have seen, CD accepted, in cross-examination, that, after the kiss, she and AB wished each other a good evening.

69 In evidence-in-chief, CD said that, as she walked towards her home, she saw AB looking at her from the tram stop, including when she reached her front gate. In cross-examination, CD accepted that her home was situated on the same side of the street as the tram stop and back about 300 metres in the (roughly westerly) direction from which their tram had come, and from which the next tram would come.

Second incident (7 June 2018): CD tells AB why she didn't text him

70 The second incident occurred two days later, on 7 June 2018.

71 On that day, after work, at about 5:45 p.m., CD went to her usual tram stop in the city. She saw AB standing on a planter box near the stop, which placed him higher than others in the area. AB saw CD, and then smiled. CD walked past him and then to a step near a bank, where she sat down. CD chose to sit there "[b]ecause it was sort of out of [AB's] vision and [she] didn't want him to see [her]".

72 At some point, a Number 6 tram came along, but CD did not take it. She hoped that AB would take that tram and then she would get the next one.

73 Subsequently, while she was looking at her phone, CD noticed AB standing in front of her. CD was "pretty sure" that AB asked her why she did not text him. She thought she told him, "Because we met on a tram", and that she had a boyfriend (which was untrue). CD also said that she either told him to stand somewhere else (and pointed) or that she was going to stand somewhere else and that he was not to follow her. CD said that her tone of voice was "pretty blunt".

74 Ultimately, CD boarded a Number 6 tram to go home. Initially, in evidence-in-chief, CD was asked, "When you got on the tram, did you see [AB] again?" In response, she said, "I did." Immediately thereafter, however, the following exchange occurred:[14]

Did you see [AB] on the tram - on any tram again on 7 June? - - - I can't recall, sorry.

That's okay. Can you recall an occasion where you got on the tram and you rang your flatmate, [GH]? - - - Yes, yes.

Was this on 7 June? - - - Yes, I recall now. Yes, it was.

Why did you ring [GH]? - - - After I told him, [AB], to, like, not be near me, I called [GH] just because I was feeling unsafe and thought, yes -

Where were you when you were talking to [GH]? - - - I think I was still at the - I'm unsure sorry.

So, on 7 June 2018, as best you recall, after the conversation you had with him, did you see where [AB] went? - - - I can't recall, sorry.

75 In cross-examination, CD agreed that the planter box on which AB was standing was about six inches off the ground. CD accepted that, a short time after she walked past AB and he smiled, he came over to where she was sitting and sat down next to her for between one and two minutes. The cross-examination continued:

And after that - I will get to the specifics of the conversation shortly - but, after that, he got up and moved away. Is that right? - - - Yes.

And you moved away from the area as well and you never saw him - there was no other interaction between the two of you that night? - - - Yes, yes.

76 CD agreed that, when AB came over and sat next to her, it was possible that he asked her how her day was. The following exchange then ensued:

After you told him that you weren't interested in texting, both of you just decided to go your separate ways. Do you agree with that? - - - Yes.

77 On another note, CD accepted that her city tram stop is the main stop for many other trams that head south out of the city.

78 The third incident occurred on 15 June 2018. Here, in addition to CD's evidence, I shall incorporate a summary of what can be seen on the CCTV recording of the incident. The recording was played to the judge. It was received by his Honour as an exhibit, as was a still image of the moment that AB made contact with the right side of CD's waist. The CCTV recording and the still image were before this Court as well.

79 After work, CD went with her colleague EF[15] to a tobacconist's booth in Swanston Street. They went there so that CD could top up her Myki card and buy some tobacco, and then they were going to go out in the city. The booth is situated on the footpath just across the way from CD's usual city tram stop. The rear of the booth faces Swanston Street and its shopfront faces the public footpath at right angles to the passing pedestrians.

80 The CCTV footage shows that, just after they arrived at the booth, CD patted EF a few times on the left shoulder. They then stood on the footpath in front of the booth and waited in line to be served, with EF moving a little further to his left to look at some merchandise. A couple of other customers were ahead of them in the queue. All customers, including CD, had their backs to those walking by on the footpath.

81 According to the timestamp on the CCTV recording, CD and EF arrived at the shopfront at 18:42:42. About six seconds later, at 18:42:48, AB walked by. He came from the right of CD and EF as they faced the shopfront. As he walked past the back of CD, and while looking straight ahead and not at her, AB put his arm out to his right and, with his right hand, touched her fleetingly on the right side of her waist over her winter coat or jumper.

82 From the CCTV footage, it appears that CD was wearing a winter coat over a jumper, but it may have been only a jumper and a scarf. As we shall see shortly, CD first accepted that she was wearing a jacket, and then described it as a jumper. Either way, it appears to have been a heavy garment, dark in colour, and large and loose in its fit.

83 As indicated earlier, CD said in evidence that she felt someone "touch my, like, hip, lower hip, pelvic area", yet the charge mentioned her stomach. She was not touched on the stomach. The "lower hip, pelvic area", I think, is also an inapt and misleading description. At least on my understanding of human anatomy (inexpert though it is), it is plain from the CCTV footage that AB touched CD on the right side of her waist. At a stretch, the contact might be described as near the upper extremity of the hip area.

84 In cross-examination, this exchange occurred:[16]

You have given some evidence this morning about the contact from [AB] on that evening. Would it be fair to describe that contact as a tack, trying to get someone's attention? - - - Definitely not.

The contact was to your hip, your right hip? - - - Yes.

That side of your body was closest to the direction [AB] walked from, wasn't it? - - - Yes.

... . It was winter in Melbourne, wasn't it? - - - Yes.

You were rugged up and wearing a black jacket? - - - Mm-hm.

And the contact was made to the surface, the external surface, of the black jacket you were wearing? - - - Yes, a jumper.

You would agree that at the time the man's hand was in contact with your hip was momentary, it was a fleeting touch, wasn't it? - - - No, I'd say it was like intimate, trying to get my attention type touch, not a little brief touch.

You were asked this question in the Magistrates' Court, "Would you agree that the time that the man's hand was in contact with you was momentary ... a fleeting touch?" "Yeah" - - - Okay.

Were you asked that question and did you give that answer? - - - Yes.

And that was a truthful answer, wasn't it? This was a very brief touch by the accused man? - - - Yes.

After you feel the touch, you look to your left. You agree with that? - - - Yes.

And you ... turn around and you see him standing there looking at you? - - - Yes.

85 In evidence-in-chief, CD said that the person who touched her did not say anything at the time. (This is consistent with the CCTV footage.) Next, she looked around and saw AB standing about 10 to 20 metres away, "with his arms crossed, smiling at [her]". In cross-examination, however, CD agreed that AB "had his hands behind his back while he was there smiling". She also agreed that he smiled at her for a moment; that she was looking at him while he did that; that she then looked away; and that he then left.

86 The CCTV footage shows that AB did not slow or turn towards CD as he touched her and walked past. Instead, with eyes front and while not at all looking at CD, he just kept walking straight ahead at the same pace for another eight or so steps, and then stopped, turned 180 degrees (so that he was facing back towards the left of CD and EF) and stood with his hands behind his back, smiling. CD turned to her left, looked at him, and then turned away again. Immediately thereafter, at about 18:42:57, AB did an about-face and walked off in his original direction (i.e., further away from CD and EF) and out of sight.

87 CD said that "[i]t was a very, like, intimate touch as well, like, not a stranger, like"; and that she felt, "[y]ou know, violated, like, just - yes, just uncomfortable".

88 CD said that she told EF what had just happened, and that EF asked about the man who had touched her.

89 The CCTV footage also shows that the following events occurred next. After AB walked away, CD and EF looked around, including in the direction in which AB had departed. At about 18:43:24, so about 26 seconds after he had done an about-face and walked away, AB walked back past CD and EF on the far side of the footpath and in the opposite direction to his original pass. AB did not appear to look at either CD or EF, who had their backs to him. Instead, AB looked straight ahead. Neither CD nor EF gave any evidence about noticing AB walk back past them.

90 The CCTV showed that, shortly afterwards, a woman (who appeared to be tending to the shopfront) tapped EF on the back (on his back-pack) in an apparent attempt to alert him and CD to the fact that it was their turn to be served. CD then stepped forward and bought something from the shop. Thereafter, CD and EF walked off to their left (i.e., in the same direction as AB had walked away initially).

91 I should note, at this point in the chronology, that CD gave evidence that, on 17 June 2018 (i.e., two days later), she went to the police and provided them with "certain information".

Fourth (and final) incident (19 June 2018): CD speculates that AB hit tram

92 The fourth, and final, incident occurred on 19 June 2018.

93 After work, at about 5:45 p.m., CD went to her city tram stop. Again, she saw AB in the general area. He did not, however, approach her there.

94 AB boarded the Number 3 tram, which pulled away. CD then boarded her usual Number 6 tram, which was directly behind the Number 3.

95 After leaving Swanston Street, the two trams travel the same route along St Kilda Road until the point where the Number 6 turns left (into High Street) and the Number 3 keeps going straight ahead (towards St Kilda). At that separation point, AB left the Number 3 tram and boarded the Number 6 behind it. CD was sitting diagonally opposite the door in the middle of the tram. As he boarded the tram, AB came straight up to CD and said "Hi" very cheerfully. CD did not respond. AB moved towards the front of the tram.

96 In evidence-in-chief, CD said that AB appeared to pace up and down while at the front of the tram. In cross-examination, however, she agreed that he was not pacing up and down. Instead, he "was just moving around in little circles close to the tram driver".

97 CD said that, although she had his back to him, she could see in a reflection in the tram window that AB was looking back at her. To her, he appeared "a bit annoyed". In evidence-in-chief, CD went on to give this evidence:[17]

When you say you think he was a bit annoyed, did you observe anything for you to say that? - - - I remember him, like, hitting something, like - or - like, on the tram extension bit.

In relation to the type of tram you were on, was this a new modern tram? - - - Yes.

So is this the tram that's - do you know the word "articulated", it goes around corners? - - - Yes, that's what it is. Yes.

Now, where you say - and I don't want to get the word wrong - what part of the tram did he hit? - - - The part that, like, that was extend and turn, like -

Is that a hard wall or a concertinaed wall type thing? - - - Yes. The - it's not a hard wall.

When you saw that, how did that make you feel? - - - Pretty scared because I knew he was - it was anger for me.

At a point in time, did you get off the tram at your usual stop? - - - Yes, I did.

And you later reported what you have just told to the court to the police? - - - Yes.

98 In cross-examination, CD agreed that, when AB boarded the Number 6 tram, he was "right in front of [her]". She agreed that, after saying "Hey" in a cheerful way, AB just moved towards the front of the tram, and that the "annoyance" she alleged came later.

99 CD accepted that, as the tram neared her stop, AB moved back towards her. She also agreed that she had said in the Magistrates' Court that at that point AB said, "Have a great evening," although she was unsure whether this occurred.

100 In cross-examination, CD was asked about the hitting of something on the tram:[18]

And you mentioned that he hit something on the tram? - - - Yes.

Did you still have your back to him at that point? - - - Yes.

And do you agree that he said something to you as you were getting off the tram and it's after that point that he hit something, you think? - - - Yes.

... [O]n 20 June 2018 ... police came to your work and you told them that you saw him hit a sign in the tram? - - - Yes, I did.

And you signed the notes of the police officer on that day confirming that that was true and correct? - - - Yes.

You also made a statement on 28 June [2018] where you also confirmed as true and correct that you saw him hit a sign in the tram? - - - Yes.

And both of those things are now wrong, aren't they? - - - Yes, they are.

It's also wrong that you saw him hit the corrugated part of the tram or the concertina part of the tram. You just think you did because you had your back to him? - - - I'm sure you have video surveillance, but he, like, there was a massive bang. I just assumed he hit, like, the sign of the corrugated bit of the tram, but, like, yes, he might have not done that, but he did something for - to make everyone look.

_You didn't? - - - I'm sure you'd have that - _

So your evidence now is that you never actually saw him strike anything, do you agree, but you think you did? - - - Yes, yes.

101 Further, on the noise CD heard, the following exchange occurred in re-examination:[19]

And the other matter I just want to take you, if I can go to the incident on [19 June], and my friend has just asked you some questions about this - - - Yes.

[H]e put to you that you didn't actually see him, him the accused, hit anything. Do you remember that? - - - Yes.

And you agreed with that proposition? - - - Yes.

But you told him that you heard a massive bang? - - - Mm-hm.

When you heard a massive bang, did you do anything? - - - Like everyone turned around. We all turned around. That's what - like I - that's why I put it in my evidence because I knew that he did something. I'm not sure exactly what he did, but it was like a scene - - -

I will just flesh that out, if I could. When you heard the massive bang, where did the massive bang come from or emanate - come from - from within the tram? - - - From what I recall, like - that's why I thought he hit the corrugated bit of the tram because it came from like that area, like the front corrugated bit.

So when you heard the massive bang, I think you just told the court that you and everybody turned around. Is that right? - - - Yes.

Where was the accused standing when you turned around in relation to where the sound came from that caused the massive bang? - - - I can't exactly like remember what exact - but like in the premises of that area and - - -

Okay. No further questions, Your Honour. If the witness could be excused.

102 I turn to the evidence of EF, who was CD's colleague. EF said that, after work on 15 June 2018, he and CD went to a shopfront in Swanston Street so that CD could buy some tobacco. While at the shopfront, CD turned to EF and said, "That's him. That's my stalker." In EF's view, CD "started appearing pretty distressed". For the rest of the evening, CD was "off centre" and "wasn't quite herself", but they still ended up going out, as planned.

103 On 18 June 2018, Detective Paulet was stationed at the Transit Crime Investigation Unit. He became involved in this matter on that day. CD had made a statement on 17 June. On 19 June, he spoke to CD for the first time. He said that, "from that conversation, a [second] statement ... was later signed ... on 11 July 2018".

104 Detective Paulet's inquiries revealed that CCTV footage showed that, on 6 June 2018, AB was in the city at the time of the alleged incident at CD's home tram stop. (Plainly, then, when regard is had as well to AB's account in his interview, to which I shall turn shortly, the first incident could not have occurred on 6 June, and must have occurred on 5 June.)

105 Detective Paulet obtained the CCTV footage of the incident outside the shopfront in the city that occurred on 15 June 2018.

106 He also made inquiries about the availability of CCTV footage of the relevant tram journeys, but was told that "none of those tram trips had internal CCTV".

107 After being given AB's phone number, police were able to track his movements and find him on 21 June 2018. He was arrested and later interviewed by Detective Paulet and another officer.

108 In cross-examination, Detective Paulet agreed that, on multiple occasions in his interview, AB asked police to obtain CCTV footage from on board the relevant tram journeys on which CD and he travelled together. He agreed that AB's legal representatives had made the same request. He said, however, that he was unable to obtain the footage.

109 Detective Paulet accepted that, from the descriptions given by AB and CD of the tram on which they travelled on 19 June 2018, it was one of the newer trams, which more commonly have CCTV cameras. He said that he could not "definitively say" that he identified the exact tram on which they travelled. To the best of his recollection, he was advised that no footage was available. Initially, he was not sure whether he received this advice by email or telephone, but later said that he recalled a telephone conversation. He agreed that there was a mix-up with the dates, but he did not recall whether he asked for the wrong date or not. He did not make any further inquiries about CCTV. He did not attend the location where the CCTV footage was kept, obtain a warrant or issue a subpoena.

110 The interview (which was recorded in audio-visual form) was played to the judge in court. His Honour also received the recording (or a copy thereof) as an exhibit.

111 The exhibit is before this Court, as is a transcript of the interview. I have played the audio-visual recording and read the transcript.

112 Prior to the commencement of evidence, the prosecutor foreshadowed an agreed editing of what were said to be the irrelevant parts of the interview. The judge, however, decided that it was unnecessary to take this course. His Honour indicated that, if told of the edits later, he could ignore the parts so identified. But it does not appear (from the transcript of the hearing) that the judge was ever told, or that he asked, which parts to ignore. This was unfortunate, because, as we shall see, there were parts of the interview that should have been excluded or at least explained.

113 Included among the things AB said in the interview were the following:

a) After police told him that the interview "relates to the offence of stalking and an alleged sexual assault", AB asked how these offences were defined.

b) As for stalking, Detective Paulet said that, while he could not "verbatim give ... the definition, ... it's ... [b]asically, a course of conduct ... which, by your actions, would make the other person apprehensive or in fear ... And the allegation is that, because of your actions, a particular individual has been made scared and ... in fear."

c) As for sexual assault, AB asked, "So ... any touch on any person is considered a sexual assault?" Detective Paulet answered, "Not necessarily, no. So, a sexual assault can mean touching a male or a female in some particular areas that may be in the genitals or the buttocks or for a female in the breast region or any other part of the body with intent to get sexual gratification."

d) AB's response was: "I haven't done any stalking or [any] sexual assault".

e) When asked to explain his relationship with CD, AB denied doing anything to cause any fear or having any intention of doing so, and he denied sexually assaulting anyone.

f) He said that the CCTV footage would show that there was no case of anything like sexual assault.

g) After police conveyed CD's written account of the first incident (which, erroneously, was said to have occurred on 6 June), AB appeared to agree with the substance of that account, excluding the actual occurrence of the kiss on the cheek, and he denied that he had followed CD to her home. He said he did not move from the tram stop or go to her house.

• (Before the judge, CD gave no evidence that AB followed her to her home. This is one of the parts of the interview that should have been excluded - or, given the judge's preferred approach, should at least have been identified as irrelevant to his Honour's task.)

h) When it was conveyed that CD's allegation of the second incident was that it occurred the next day (i.e., the day after the first incident), AB denied this, and said he did not meet her the day after.

i) In reference to the allegations that, on the first occasion, he left the tram stop and followed CD to her home and that the second meeting occurred the day after the first, AB then said that "that's ... not true, is lies, and is - I'm nearly fainting with that now. It ... seems is a very nasty attempt to ... make bad on me ... to damage me". (Later, AB returned to similar themes.)

j) Of the first incident, AB denied putting his number into CD's phone and said that he gave her his number when she asked him, and that she put the number into her phone.

k) When it was alleged that he "grabbed her and kissed her on the cheek", AB said that he did not grab her. When asked whether there was "any form of touching", he said that there was "no other touching, no grabbing, nothing like what it says there".

l) When asked about the kiss on the cheek, he said: "No. No. I did an action towards doing that, though I didn't ... even touch her with that. She offered me her hand and that's why".

m) He repeated that, after CD left the tram stop, he stayed there and then took the next tram home.

n) When asked about CD offering her hand and the kiss on the cheek, AB said that he went to kiss her but did not touch her. He said she "was a very friendly girl before that for 35 minutes, giving clearly ... an impression, a positive impression to me and that's why I did that move as a gesture of good, like ... of a good way, not like it's a man and a woman".

o) When asked to describe what happened when he moved in to kiss her, AB said that CD "had her hand that way and [he] did that, like, kissing her without kissing her". He went on: "So I did the move, I didn't touch her". (When giving this account, AB demonstrated by leaning his head forwards and tilting to the side.)

p) When asked why the kiss didn't occur if he moved in, AB said, "Because I had just met her and maybe that would be too much to do it. ... And I don't want to touch her with certain parts of my body."

q) When asked whether she pulled away when he tried to kiss her, AB said that she did not.

• (I should add that CD did not give any evidence of pulling away. This is yet another passage in the interview that should have been either excluded or at least identified as irrelevant to the prosecution case. If anything, the fact that CD gave no evidence of pulling away could go only to the defence case on consent or reasonable belief in consent.)

r) When the second incident was raised again, police said that it was alleged that AB approached CD at the tram stop and tried to start a conversation about how her day was going, but that she was quite blunt and said that she did not want to talk to him. AB agreed that he was at the tram stop in the city and that he spoke to CD, but he denied saying anything inappropriate or offensive to her. When it was put that he got on the same tram as her, he denied this. Instead, he waited for CD to go and then took a different tram. He said that any CCTV footage at the tram stop or inside the tram would verify that.

s) Accounts by CD of the third and fourth incidents were then read to AB. He was shown a screenshot from the CCTV recording of the third incident (showing the moment of the touch on the waist on 15 June). Of that third incident, the police conveyed that CD said that she felt "violated", that it was "very intimate", and that she "can't stop worrying about when I'm going to see him next and what he might do to me".

• (CD did not give any evidence that she could not "stop worrying about when [she was] going to see him next and what he might do". This is yet another passage in the interview that should have been excluded.)

t) Then, after giving CD's account of the fourth incident (on 19 June), the police conveyed that CD said, "I'm very scared to catch the tram and it's scary to think he knows which tram I always catch."

• (Again, CD did not give this evidence, and this passage should have been excluded.)

u) AB said that he felt he was being trapped. He repeated part of his account of the first occasion, including the friendly conversation they had for 35 minutes, that CD was laughing and smiling, and that "she was making everything look fine". He reiterated that he did not move from the tram stop or go near her home. He said that the CCTV footage from the tram would confirm this. He now felt that she was "faking [him] that everything [was okay] and fine".

v) Then, when asked to respond specifically to the allegations concerning the third occasion, AB reiterated the positive impression he believed he had been given by CD. He said that at no point had she told him "not to talk to her or go near her or anything like that". It was against that background that, on this occasion, having seen her pass by and then stop, he "went ... in a very friendly and nice way to ... show her that I'm there and that ... I'm happy to see her ...". He said that he had the impression that "everything is fine and great" and that he:

went to, in a way, show her that I'm there and in case she wanted to talk to me. And, yeah, and to show her that I'm there ... in a very calm ... a very gentle way, I touched her so that - because otherwise she was looking in a different direction and, as you said, I went near her and stood ... and smiled [which] clearly shows that what I was believing and what was the impression that she was making me believe was is everything is fine and that coming across her ... it may be, like, nice - a nice thing. And after that, after maybe [a few seconds], I turned around and left. ... [F]rom the moment she didn't respond to the fact that I smiled at her, she didn't want to talk to me, and so that's why I immediately turned around and left. ... And so with that nice and positive impression I had at that point and was created to me, I went to make my presence known that I'm there, in a very friendly way.

w) When asked specifically about the fourth occasion, AB said that he believed that the tram had cameras and would have footage, and he asked whether the police could get the footage. Of the incident, he said that, when he got on the tram, CD was nearly in front of him. He said a quick "Hi", in a very friendly manner, and, when CD did not reply, he moved to the front of the tram. CD was then behind him. He did not look or stare at her. He also said, "Have a great evening." He denied being angry. He denied touching signs or anything like that.

x) When asked why he was in the city on each of the four days, AB said that he goes to the city "about every day"; he goes there to get dinner most days, or to walk around, get a haircut, go to the bank, or do anything he has to do there. He denied going to the tram stop because of CD. That was the tram stop he attended every day he went to the city well before he knew CD. He said that the CCTV footage of that stop would prove that.

y) AB also said that at no point during the first two interactions did CD make it clear that she did not want to speak to him. On the contrary, the impression he got was that everything was fine. AB also said that at no point during their interactions was there anything that indicated that she was fearful or anything like that.

No prior or subsequent convictions or findings of guilt

114 Detective Paulet gave evidence that AB had no prior or subsequent convictions or findings of guilt in either Australia or the two other countries in which he had lived before coming to Australia.

115 Through Detective Paulet, defence counsel tendered, and the judge received, bank records showing AB making numerous purchases at 7-Eleven shops in the city between 20 March and 20 June 2018.

N****O DISCUSSION OF PARTIES' CASES, ISSUES IN DISPUTE OR APPLICABLE LAW

116 Immediately following Detective Paulet's evidence, the prosecutor announced the close of the prosecution case.

No evidence given or called by AB/No submission of no case to answer

117 The judge then called upon defence counsel to indicate AB's proposed course.[20] Counsel answered the judge's query by announcing that AB did not intend to give evidence or to call any witnesses.

118 Counsel did not seek to make, nor was he invited by the judge to make, a submission that there was no case to answer on any of the charges.[21]

No discussion of prosecution case, defence case, issues or law

119 Neither at this stage nor at any other on the appeal did either party seek to raise any issue about how the prosecution put its case on any of the charges or how the defence case was put in response. Nor did the judge invite any such discussion.

120 Counsel did not make, and the judge did not call for, any submissions on the law. No mention was made of the meaning of "sexual" in s 40(1)(b), of when "touching may be sexual", of the terms of s 35B(2), or even of the existence of either that provision or s 35. I find this puzzling, not only because his Honour is such an experienced judge, but also given the nature of the allegations of sexual assault in this case and the dearth of authority on sexual touching.

121 Further, neither the prosecutor nor defence counsel sought leave to give a final address.[22] Nor did the judge invite final addresses.

122 Instead, immediately after defence counsel indicated AB's course, the judge gave his reasons for finding the charges proved.

123 The judge commenced his reasons by explaining that the appeal was from three charges found to have been proved in the Magistrates' Court following pleas of not guilty. He recounted the magistrate's sentence.

124 The judge read out the charges. He then listed the four elements of sexual assault substantially in the terms in which they appear in s 40(1) of the VCA (which I shall set out fully later). In particular, his Honour said this:[23]

[6] ... The four elements of sexual assault are: (1) that the accused intentionally touched the complainant in the way alleged; (2) that the touching was sexual; (3) that the complainant did not consent to the touching; and (4) that the accused did not reasonably believe that the complainant consented to the touching.

No mention of s 35B(2) of the VCA

125 Consistently with his failure to raise these issues with counsel, however, at neither this nor any other point in his reasons did the judge make any reference to the terms, or even to the existence, of s 35B(2) of the VCA, or of how this provision might apply to the evidence led in support of the two charges of sexual assault.

126 I find these omissions even more striking than the lack of discussion of these provisions and issues with counsel. Of course, it is not necessary to go into chapter and verse on the applicable law, especially when it is well known or there is no controversy about it. The same often goes for the way in which the prosecution and defence cases are put. Many a summary hearing is conducted in this way, and usually that is sufficient. But this case was different. It cried out for at least some outline of the prosecution and defence cases and an analysis of the relevant provisions and the meaning of sexual touching.

127 The judge listed a truncated version of the elements of stalking in s 21A of the VCA (the relevant parts of which I shall set out later):

[7] So far as the charge of stalking is concerned, the prosecution must prove two elements: first, that the accused intentionally engaged in a course of conduct that included particular types of actions; and secondly, that the accused either intended that his course of conduct of[24] the complainant made her feel frightened or apprehensive about her own safety or about the safety of someone else or that the accused knew that his course of conduct would be likely to harm the complainant or make her feel frightened or apprehensive about her own safety; or [three] that the accused ought to have understood that his actions would be likely to harm or frighten the complainant or make her feel apprehensive about her own safety and his conduct actually did have that effect.

128 After observing that the appeal was by way of a hearing de novo,[25] the judge noted the following:[26]

[8] ... [T]he prosecution relies on the evidence of [CD] and [AB's] record of interview, which I shall later return to, and some CCTV footage taken on 15 June 2018 and on a still photo shot taken from that footage. It relies upon all of this evidence to prove its case beyond reasonable doubt.

[9] [CD] gave evidence of four separate incidents that occurred on [5, 7, 15 and 19] June 2018. It's necessary to traverse some of her evidence.

Evidence of first incident (i.e., the cheek-kiss)

129 His Honour then turned to a summary of the evidence concerning the first incident:[27]

[10] ... [CD] said that she was working at [her workplace] in the city of Melbourne at an office near the intersection of Swanston Street and Bourke Street. On 5 or 6 June ... she finished work at around 5:30 and went to catch the Number 6 tram.

[11] [CD] and [AB] have but one thing in common in this proceeding and that is that they both lived, at the relevant time, at addresses serviced by the Number 6 or Glen Iris tram which runs from Melbourne University at the northern end to the terminus at Glen Iris. The tram, relevantly, travels across[28] Swanston Street in Melbourne, down St Kilda Road, where it makes a left-hand turn, and then travels along High Street to Glen Iris.

[12] [CD] gave evidence, which I accept, that she boarded the tram at around 5:30 at the corner of Bourke Street and Swanston Street. She said she was then aged 19. A man, later identified as [AB], approached her on the tram. She said he sat down next to her. She was pretty sure it was [6 June], but it could have been [5 June]. She said, "I was sitting on a tram. There was a spare seat. ... [He] appeared to be aged in his late-20s." She said, "He sat down and engaged in friendly conversation. He was aboard the tram for about a half an hour, maybe 35 minutes." She said she got off the tram at [her home stop]. She said the man told her that he lived in [a suburb further on]. They had 30 minutes ... of nice conversation before she got off. She said, just before she got off, he asked her if she would go out with him on a date, which she declined. She said she was caught off-guard. She declined the invitation for a date.

[13] She got off at her normal stop ... . She was unsure whether he asked her for a date more than once. She said she got off the tram and [AB] was still on the tram, but she then heard him ask the driver to reopen the doors. She got a bit of a shock. [AB] got off the tram and they walked off to the footpath and [AB] came towards her. She said that he asked for her phone number, which she did not want to give him, because, as she said, "I'd just met the man on the tram." ... She said she wasn't comfortable giving him her number as she just met him. He asked a few times and she refused. Then [CD] said in evidence, which I accept, that she asked [AB] for his phone number, which he gave her, and she put it into her phone and put it down under the name [AB].[29] ... She said that [AB] wanted her to text him. He kept saying to her, "Make sure you text me." She said that she went home. One other tram travelling in an easterly direction along [her street] went past.

[14] She then went to walk to her house some 300 metres away and she was asked if anything happened. Before that, she said that, before they departed, [AB] "kissed me on the cheek". She said, "He grabbed me with my arms, pulled me in a foot or two" - she said they were a foot or two apart when talking - "He pulled me in, kissed me on the cheek. I can't remember if it was the left or the right side." She said, when he kissed her, she felt shocked, violated and not safe, and didn't say anything or do anything to invite it.

[15] In cross-examination, she agreed that she at first went to shake hands with [AB] and offered her hand, which he did not take, but grabbed her on both arms[30] and pulled her towards him. There was an issue in cross-examination where at one point she said that [AB] did not kiss her, but in re-examination this was clarified and she said that he intended - appeared to intend - to want to kiss her on the lips,[31] and that's what she understood the question to be addressed to, but [AB] definitely kissed her on the cheek. [CD] said that she was shocked. She didn't want to do anything.

[16] She said that, as she went towards her home, she looked back and [AB] was still the tram stop, looking in her direction.

[17] In his record of interview, [AB] denied these actions alleged against him.

[18] This is a case of one witness's word against the other and it's a case where [AB] appears before the court with no prior convictions, either before or since, either in this country or in [the countries in which] he has previously resided. He is a permanent resident of Australia, according to what he told the police when later interviewed.

131 His Honour then directed himself on the use to be made of evidence of good character. As there is no complaint about these directions, it is unnecessary to extract them here.

CD as "an impressive witness" contrasted with AB in his interview

132 Next, his Honour said these things about CD as a witness:

[21] [CD], in my view, was an impressive witness. She was wont to understate the circumstances in which she found herself. She held back in complaining to police. I thought she made appropriate and relevant concessions during the course of her evidence, both in-chief and in cross-examination.

133 Immediately thereafter, and in contrast, the judge said the following about AB's approach in his police interview:

[22] [AB], on the other hand, when interviewed went out of his way to accuse [CD] of conjuring up a case against him and that it was a pack of lies. [AB], when interviewed, was most cautious, and I don't hold that against him, however, he seemed anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events.

Conclusions on first charge of sexual assault (i.e., the cheek-kiss)

134 The judge then reached the following conclusions on the first charge of sexual assault:

[23] I accept the evidence of [CD] in relation to the first charge. I find that, after a pleasant exchange on the tram between [CD] and [AB], [AB] seems to have mistaken the signals advanced by [CD], who was only being polite. He misinterpreted the short relationship that he had with [CD] during a short conversation on the tram and took the liberty to kiss her on the cheek. This was unwarranted. It was a touching by him of [CD] which she did not consent to and, in my view, he ought to have known that she did not consent to, if only from the fact that she offered her hand to shake hands; a very different action, in my view, from a kiss, either on the lips or on the cheek. The kiss in the circumstances here was an unwarranted touching by [AB] of [CD]. It clearly was of a sexual nature, given that the two had barely met and had met in a most informal way, both being passengers on the tram.

Evidence and conclusions on second charge of sexual assault (i.e., the waist-touch)

135 Next, his Honour addressed the second charge of sexual assault:

[24] The second charge of sexual assault relates to what I find again is an unwarranted touching in the street ... at about 6:42:48 on 15 June of 2018. The touching is depicted in ... the still photograph taken from the video evidence. It is clear from that photograph that [AB] engaged in a totally unwarranted and unsolicited and not consented to touching by touching [CD] on her right waist area with a flat open hand when she was not even looking. Indeed, he was not even looking at her, but purports to be looking straight ahead. The video evidence shows that he touched [CD] in the way alleged, walked away, and then he can be seen stopping and looking back. There is a delay on the video footage where [AB] disappears out of sight, but, then, within a short time later, can be seen walking back in the opposite direction. That touching also is a touching unwarranted, [not] consented to, and [AB] knew, or ought to have known, from his previous discussions with [CD], the fact that she had not texted him, the fact that she had not engaged with him in any way, despite their meeting some 10 days earlier. The touching, in my view, having regard to the area where [AB] touched [CD], must be held as a touching of a sexual kind. I find Charge 2 also to be proven.

[25] [AB's] answer to this in the record of interview is not to be accepted by me. His answers, in my view, were evasive and he did not want to deal with the real issue when confronted by the image and the video evidence. His answer was to allege that he had been set up by [AB], which, in my judgment, was an attempt to besmirch the character and credit of [CD] and showed little insight into what he had actually done. I reject what he said in his record of interview absolutely.

136 The judge then addressed the charge of stalking:

[26] The charge of stalking is Charge 3. The prosecution relies upon all of the evidence of [CD] of a series of approaches by [AB] of [CD] over a number of days, commencing on or about 5 or 6 June, and then a second incident which occurred on 7 June. It also relies upon what occurred on 15 June in Swanston Street and later an incident that occurred on 19 June on the tram.

[27] On 7 June, [CD] gave evidence that, the day after the first meeting,[32] where there had been a pleasant exchange on the tram followed by the unwarranted kiss on the cheek ..., ... she went to catch the tram and she observed [AB] standing on ... a planter box in Swanston Street near the tram stop. ... He saw her. He smiled at her. She thought,[33] "I thought it was weird. I walked past him and sat down on a seat near the [bank] some distance away from the actual tram stop," because she wanted to be out of his vision. The tram came along. She didn't get the first tram. She was still sitting at the [bank] and noticed a male stood in front of her. She was looking at her phone. She looked up from her phone. [AB] was standing in front of her. He asked why [she] didn't text him. She said, "Because we met on a tram." She said, "I'm going to stand somewhere else. Don't follow." [CD] told him [she] had a boyfriend. That wasn't true, but she was hoping it would put [AB] off and stop his intentions. [CD] said that she was pretty blunt when she asked him to stand away from her. She said she pointed. She said that she didn't do anything which would have suggested to [AB] that she was happy to have him round. [CD] said she eventually got the Number 6 tram. She saw [AB] again. She was concerned about [AB] following her. She recalls she got on the tram and she phoned her flatmate ... and told her that a male that she had previously seen was on the tram.

[28] On 15 June, the incident occurred in Swanston Street. ... [CD] went to ... a tobacconist ... outlet ... . [EF] was with her. [CD] was standing at the front of the shop in a queue. She felt [AB] touch her lower hip area, pelvic area. She said it was an intimate touch. It was [AB] ... . He was smiling at her. She said she felt violated, uncomfortable when the touch happened, and she then spoke to [EF] and told him that that was the man that had been stalking her. [EF] gave evidence to that effect, which is complaint-type evidence. [CD] said [AB] went about 10 to 20 metres away with his arms crossed, smiling back at her. [CD] and [EF] later went out that evening socialising.

[29] Then on 19 June, [CD] said that she was going home from work at about 5:45. She got to the same tram stop in Swanston Street ... to catch the Number 6 tram. She saw [AB] where she usually got the tram. She said, "He saw me when I looked at him." She said [AB] got a Number 3 tram, which follows a similar route along Swanston Street, then St Kilda Road, but at the point of High Street it proceeds further on and goes either down Malvern Road or Dandenong Road ... . [At] High Street, [AB] got off the Number 3 tram and got on the Number 6 tram. ... She said he came straight up to her and said "Hi" in a cheery fashion. He walked to the front of the tram. She said, "I think he was pacing up towards the front of the tram." She said he was looking, facing in the opposite direction with her back to him, but she was looking at his reflection and she could see [AB] looking back at her or in her direction. She said she didn't respond to his actions, trying to attract her attention. She said she remembered that he was hitting something and making a noise in her direction. She said his demeanour was such that he appeared to be annoyed that she would not respond to his presence. She said that she was scared, and felt scared, and she got off at her usual stop and reported the matter to the police.

[30] The charge of stalking alleges that [AB] engaged in a course of conduct which included following [CD], loitering at the tram stop at the intersection of Swanston Street and Bourke Street where he knew [CD] caught the tram, and he directed acts against her, abusive acts against her, by angrily hitting the sign on the tram when she ignored him.

[31] I find that [AB] did engage in a course of conduct which included following [CD] and that he, having ascertained that she after work caught the Number 6 tram home, did loiter at or near that tram stop. There are too many occasions where the two happen to cross paths at or near the tram stop or on the same tram. [CD's] movements were relatively predictable. She worked at the same place ... and she caught the same tram at about the same time. [AB], on the other hand - there is no evidence of him working. There is evidence that he frequented the city. There is evidence received today of him regularly attending 7-Eleven stores and using his card in the city, but there is no reason to explain the extreme coincidence of the fact that he regularly found himself in the presence of [CD]. The actions that occurred on 15 June at about 6:42 p.m., where [CD], oblivious to [AB], whilst she was waiting to buy her cigarettes, would be an amazing coincidence that [AB] would walk in one direction whilst tapping [CD] in the hip, pelvic area, and then standing some distance away, and then walking back in the other direction. In my view, that is clear evidence of his stalking of [CD].

[32] He knew, or ought to have understood, that his actions would be likely to frighten [CD] or make her feel apprehensive about her own safety, and he ought to have known that his unwarranted actions in pursuing [CD] would have that effect.

[33] Accordingly, I find the charges proved on the evidence beyond reasonable doubt. In my view, the prosecution has proven each element for each of the offences charged.

138 Immediately after the judge delivered his reasons, the prosecutor confirmed that AB had no prior convictions. Next, the prosecutor filed a victim impact statement, which he read aloud. He also foreshadowed an application for an order for a forensic sample. There was no application, however, that AB's name be placed on the Sex Offender Register.

139 Following discussion and then a break in proceedings, defence counsel advised the judge that AB's appeal against sentence was abandoned. Counsel made no submissions on sentence.

140 The prosecutor indicated that no submission would be made against the imposition of the same sentence as had been imposed in the Magistrates' Court, which, he added, included that there be no conviction recorded.

Judge's further remarks about AB "misreading the signals"

141 During discussion on the plea hearing, the judge said these things to counsel for AB:[34]

Look, if I may say so, ... , from [AB's] point of view, this is a case, it seems to me, where [he] made the mistake of misreading the signals. ... And this is what led to all of this. I know little about him, but he seemed to me to be a fairly, if I may say so, lonely individual that found himself in a situation where he misread the signals ... .

142 Similarly, in his reasons for declining to make an order for a forensic sample, the judge made the following remarks:[35]

In my judgment, although the charges have been proved, the level of offending for each of the offences charged falls towards the lower end of offending of the kind charged and proved. In discussion with counsel, I indicated that, in my view, [AB] committed the offences because he misread the signals from [CD] who was, in their initial meeting certainly, just behaving politely and engaging in general discussion with him.

143 The judge went on to say that counsel for AB "made no submissions on sentence" and, "[t]hat being the case, the appeal against sentence will be treated as having been abandoned". His Honour set aside the orders of the Magistrates' Court[36] and, in their stead, made the same orders. Accordingly, as indicated earlier, on the three findings of guilt, the judge imposed an aggregate fine of $10,000, without conviction.

144 In this Court, leave was granted to AB to file more than one amended originating motion, each containing differing constellations of grounds for review. During the substantive hearing, grounds were added, some were amended, and yet others were abandoned. Given that AB was unrepresented, the Director - properly and fairly - did not object to this course.

145 Ultimately, AB sought to agitate four groups of grounds. Each of the first three groups relates to each of the findings of guilt, respectively. The fourth group applies to all three findings of guilt. In the end, the grounds, as argued, were as follows.[37]

Grounds re Charge 1 (sexual assault by cheek-kiss)

146 The parts of Ground 1 pursued comprise the following complaints concerning the finding of sexual assault alleged in Charge 1 (i.e., the cheek-kiss):

• Ground 1(a) complains that it was unreasonable to find that AB actually kissed CD.

• Grounds 1(b)(i), (ii), (iii) and (iv), which concern the finding that the kiss on the cheek was sexual, complain:

▪ that it was unreasonable to make the finding that the kiss on the cheek was sexual;

▪ that it was unreasonable to exclude the hypothesis that the cheek-kiss was merely a farewell gesture;

▪ that the judge applied the wrong test in making that finding, including by failing to consider the immediate circumstances of the touching or that a cheek-kiss is a common farewell gesture; and

▪ that the judge's reasons for making that finding were inadequate.

• Grounds 1(c)(i), (ii) and (iii), which concern the finding that AB did not reasonably believe that CD was consenting to a kiss on the cheek, complain:

▪ that the judge applied the wrong test in making that finding, including by failing to consider all of the circumstances; and

▪ that the judge's reasons for making that finding were inadequate.

Grounds re Charge 2 (sexual assault by waist-touch)

147 Grounds 2(a), (b) and (c), which concern the finding of sexual assault alleged in Charge 2 (i.e., the waist-touch), complain:

• that it was unreasonable to find that the touch on the waist was sexual;

• that the judge applied the wrong test in making that finding, including:

▪ by failing to consider the immediate circumstances of the touching; and

▪ by finding that the touching, "having regard to the area where [AB] touched [CD,] must be held as a touching of a sexual kind"; and

• that the judge's reasons for making that finding were inadequate.

148 Grounds 3(b)(ii), (d) and (e), which concern the finding of stalking alleged in Charge 3, complain:

• that it was unreasonable to find the charge of stalking established, and particularly the fault element; and

• that the judge's reasons for making that finding were inadequate.

149 The parts of Ground 4 pursued comprise the following complaints concerning all three findings of guilt:

▪ that it was unreasonable to find that CD was "wont to understate the circumstances in which she found herself"; and

▪ that the judge failed to provide adequate reasons for that finding.

• Ground 4(c) complains that the judge made unreasonable findings when assessing the credibility of AB and the overall case, including by finding that, during his police interview, AB "seemed anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events"; that AB was "evasive"; and that his response was designed to "besmirch" CD.

• Ground 4(e) complains that the judge was biased or that there was a reasonable apprehension of bias.

150 Before going any further, I must address some preliminary points about the proper approach to AB's complaints of unreasonableness under the foregoing grounds.

151 At times, AB's submissions on unreasonableness tended to invite merits review of the judge's findings. On other occasions, his arguments were more akin to submissions of unreasonableness of verdict (or the "unsafe and unsatisfactory" ground) under the common form criminal appeal provisions.[38] On an application for judicial review, both approaches are misplaced.[39]

152 However, some of AB's unreasonableness grounds were, in substance, complaints that there was no evidence for the findings in issue.

153 Whether there is any evidence to support a factual finding is a question of law, not of fact.[40] Accordingly, a finding made in the absence of evidence involves an error of law. If such an error appears on the face of the "record",[41] it will be amenable to judicial review. An error of this kind may also amount to a jurisdictional error where the finding is a "critical step" in the decision-maker's path of reasoning.[42]

Facts found could not, in law, satisfy statutory criterion

154 Some of AB's submissions on unreasonableness amounted to complaints that, on the facts found by the judge, it was not open to conclude, in law, that the relevant statutory criterion was satisfied. As the authors of the leading text on judicial review explain:[43]

Conclusions as to whether the facts as the decision-maker has found them fall within the relevant legal criterion in the governing law can be challenged for error of law if they are not open. In other words, decision-makers have an either-way margin. That much has always been clear in the context of so-called "mixed questions" of law and fact.

155 Part of AB's challenges to the judge's conclusions on the element of sexual touching involved complaints of this kind. And, as we shall see, the question whether an instance of touching is sexual is a mixed question of fact and law.

156 Again, an error of this kind, if established, may be classified as either an error of law on the face of the record or a jurisdictional error, or both.

Unreasonableness or irrationality of reasoning or finding

157 Some of AB's submissions on unreasonableness also appeared to amount to complaints that, on the evidence, it was unreasonable or irrational to make certain findings, whether on the elements of the offences charged or on other matters.

158 A question arises, however, as to whether, if established, a complaint that the judge's finding of guilt or his or her reasoning towards it is unreasonable or irrational is capable of amounting to a jurisdictional error for the purposes of judicial review in a matter of this nature.

159 In 2015, after referring to recent decisions of the High Court,[44] Neave JA said the following in Ryan v The Grange at Wodonga Pty Ltd:[45]

[92] Despite these decisions, there remains considerable uncertainty about the circumstances in which the irrationality/illogicality/unreasonableness grounds of review may apply. In particular it is not clear about the circumstances, if any, in which these principles permit the setting aside of:

• factual decisions which cannot be regarded as 'jurisdictional facts' such as the 'satisfaction' of the decision-maker, as was the case in SZMDS;[46]
• decisions which do not involve the exercise of a discretion.[47]

[93] Nor is it clear whether, assuming that these grounds for review are available, the decision itself must demonstrate irrationality, illogicality or unreasonableness, or whether it is sufficient to show that it has been reached by reasoning which demonstrates such flaws.[48]

[94] There is also uncertainty about the relationship between these principles and the concept of Wednesbury unreasonableness, which in Australia has been confined to a ground for review of the exercise of a discretion.[49]

[95] Recent decisions in the trial division of this Court have acknowledged these uncertainties.[50] In Rees v County Court, where it was argued that a judicial officer in an inferior court had made a finding of guilt that was so unreasonable that no reasonable person could make it,[51] Cavanough J considered it was unnecessary to reach a conclusion as to the extent to which deficient fact finding could amount to jurisdictional error. He observed that:

The 'illogicality or irrationality' ground of review referred to in SZMDS seems to be quite new and its scope remains to be fully explored, notwithstanding that it is at least closely related to the well known 'Wednesbury unreasonableness' ground. The arrival of the new ground casts very great doubt on any continuing role that Wednesbury unreasonableness might otherwise have had in relation to non-discretionary decision-making of the kind presently in question. Nevertheless, bearing in mind ground 2 of the plaintiff's originating motion, I will assume in the plaintiff's favour, without deciding, that it is open to him to allege both 'illogicality or irrationality' and 'Wednesbury unreasonableness' as separate grounds. On the other hand, I will respectfully adopt the view apparently taken by Crennan and Bell JJ in SZMDS that they are similar allegations, in that the former is 'of the same order' as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' (in the sense that it could not be arrived at by a reasonable person).[52]

[96] In Barro Group Pty Ltd v Brimbank City Council,[53] Emerton J said that:

In my view, the availability of the illogical or irrational ground remains somewhat uncertain where the provision conferring the decision-making power does not require the decision-maker reach a state of satisfaction about a specified matter. Justice Cavanough has very helpfully reviewed the current status of the illogical or irrational ground in Rees v County Court. His Honour referred to the recent decision of the High Court of Australia in Minister for Immigration and Citizenship v SZDMS, in which Gummow and Kiefel JJ appeared to hold that jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, whereas according to Crennan and Bell JJ, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker.[54]

160 For reasons that will become apparent later, I would accept AB's attack on the judge's findings of guilt on each of the sexual assault charges if irrationality were available as a complaint in the present context.

161 In Rees, while Cavanough J assumed without deciding that the plaintiff could rely on a ground of this nature in an application for judicial review of a County Court judge's finding of guilt in a criminal matter in a summary hearing,[55] he appeared to doubt it.[56] His Honour went on to conclude that such a ground, even if available, could not be established in the circumstances of that case.

162 So far as my research reveals, the point has not been resolved since Rees. On the other hand, on one view, it may well be that, in the decade that has passed since then, the law has developed in such a way that a ground of that type would be available now.[57]

163 However, given that AB has available to him other good bases for challenging the findings of guilt of both sexual assault and stalking (which complaints come within his grounds and lead to the same forms of relief), it is unnecessary to decide in this case whether a ground of this type is an available basis for a finding of jurisdictional error in an application of the present kind. Further, I did not hear any argument addressed specifically to whether such a ground was available in the present case. Thus, I think it is preferable that the resolution of such an important issue should await an application in which it is critical to the outcome and in which the Court has heard argument.

164 That said, in the course of considering the grounds argued by AB, I will offer a view, where relevant, on whether a ground like this, if available, would have succeeded or not.

165 Further, I note at this stage that AB also argues, separately from his unreasonableness grounds, that the judge must have applied the wrong test in determining that each instance of touching was sexual.

166 The test for whether touching is sexual is found in ss 40(1)(b) and 35B(2) of the VCA. A misconstruction of such a statutory test provides a basis for a complaint of jurisdictional error.[58]

167 As we shall see, one of the reasons why I consider that these complaints are made good is that on no correct application of the statutory test for sexual touching could it be concluded, on the evidence before the County Court, that either instance of touching was sexual. Thus, in my view, the very same conclusion that would establish a ground that, on the evidence, a finding of guilt of an offence was unreasonable or irrational, if such a ground were allowed, is available to go in proof of a ground that the judge must have applied the wrong legal test for criminal liability.

168 That I am persuaded to take this view of the evidence is also an important consideration in determining any consequential relief that might be granted in respect of the sexual assault charges. More of that later.

169 Finally, I note for completeness that there is no controversy about the availability of AB's other grounds on an application for judicial review. Those other grounds, as well as those argued but not contained in his amended originating motion, include complaints that the judge's reasons were inadequate, that his Honour failed to take into account relevant considerations, and that he constructively failed to exercise jurisdiction.

170 At this point, I shall set out a road map of the topics to be dealt with in the balance of these reasons.

171 Under the next heading, I shall set out ss 40 and 35B of the VCA, in full, as well as relevant parts of the other key legislative provisions concerning sexual assault.

172 Thereafter, I shall set out the indecent assault provision that was repealed when the sexual assault provisions were introduced into the VCA.

173 Next, I shall outline the parties' submissions and then, separately, my conclusions on the meaning of sexual touching.

174 After that, I shall address AB's complaints about the judge's conclusions, approach and reasons concerning each charge of sexual assault, in particular as they relate to his findings on the element of sexual touching.

175 Next, I shall address each of the other grounds concerning sexual assault, followed by those relating to stalking and then those of general application.

176 Finally, I shall address the proposed relief and orders.

177 On 1 July 2015, by operation of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) ("the 2014 Amending Act"), a new Subdivision (8A) (headed "Rape and sexual assault") and some related provisions were inserted into Division 1 ("Offences against the person") of Part I ("Offences") of the VCA.[59] Among the new provisions was s 40, which created the offence of sexual assault.

178 In his second reading speech to the Legislative Assembly in support of the 2014 Amending Bill, the Attorney-General of the time, the Honourable Robert Clark, explained that these amendments were based on the proposals made by the Department of Justice's Criminal Law Review in its Review of Sexual Offences: Consultation Paper (September 2013) ("the Consultation Paper").[60] Later, I shall refer to parts of this paper and to some other extrinsic materials when stating my conclusions on the interpretive task.

179 When first enacted, some of the headings and the provisions in the new legislation were, to a greater or lesser extent, in different terms or had different section numbers from their equivalents today.[61] However, at the time of the relevant events in this case, the provisions I am about to set out were in the terms in which they appear in this judgment, and remain so today.

(a) A intentionally touches another person (B); and

(d) A does not reasonably believe that B consents to the touching.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

1 An exception applies to this offence - see section 48A.

1. A mistaken but honest and reasonable belief that the touching was not sexual is not a defence to this offence - see section 48B.

181 Section 35(1) relevantly provides as follows:[63]

sexual, in relation to touching - see section 35B;

Section 35B: "Touching" and when it "may be sexual"

(c) through anything, including anything worn by the person doing the touching or by the person touched.

(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

(c) any other aspect of the touching, including the circumstances in which it is done.

(3) For the purposes of Subdivisions (8A) to (8FA), a reference to a part of the body includes a reference to a surgically altered or constructed part of the body.

183 The predecessor to s 35B was enacted in a slightly different form and had a different section number (namely, s 37E).[64]

Section 48B(a): No defence of mistaken belief that touching not sexual

184 Section 48B(a) provides that an accused's mistaken but honest and reasonable belief that the touching was not sexual provides no defence to a charge for an offence against s 40(1):

It is not a defence to a charge that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that ... for an offence against section 40(1) ... - the touching was not sexual[.]

Sections 36 and 36A: Consent and reasonable belief in consent

185 While they do not impact directly on the meaning of sexual touching, it is as well to set out ss 36 and 36A of the VCA[65] because they concern somewhat interrelated elements and because, as we shall see, AB challenges the judge's finding that he did not reasonably believe that CD was consenting to a kiss on the cheek.

186 Section 36(1) provides that "consent means free agreement". Section 36(2) sets out a non-exhaustive list of "[c]ircumstances in which a person does not consent to an act", including where "the person does not say or do anything to indicate consent to the act".

187 Section 36A addresses the concept of whether or not a person reasonably believes that another person is consenting to an act:

(1) Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.

(2) Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents or, in the case of an offence against section 42(1), would consent to the act.[66]

Sections 37A & 37B: Objectives & guiding principles

188 Sections 37A and 37B of the VCA set out the objectives of, and guiding principles in interpreting and applying, all provisions contained in Subdivisions (8A) to (8G).

(a) to uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity;

(b) to protect children and persons with a cognitive impairment or mental illness from sexual exploitation.

It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that -

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under‑reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment or mental illness; and

(d) sexual offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

191 These two provisions were already in the VCA prior to the introduction of s 40 and its related provisions, albeit they were in a slightly different form.[67]

192 While I have considered these provisions in attempting to construe the element of "sexual" touching in sexual assault, they provide no guidance on the meaning of "sexual". Instead, they appear to be drafted on the assumption that the meaning of the word "sexual" is understood.

193 As we have seen, in Victoria, the predecessor to the offence of sexual assault was the offence of indecent assault. On the day before it was repealed, s 39 of the VCA set out the offence of indecent assault in this way:

(2) A person commits indecent assault if he or she assaults another person in indecent circumstances -

(a) while being aware that the person is not consenting or might not be consenting; or

(b) while not giving any thought to whether the person is not consenting or might not be consenting.

194 There were no definitions in the VCA of the expressions "indecent" or "in indecent circumstances". Instead, much of the learning on that element stemmed from decisions specific to s 39 and its predecessors or their equivalents in other common law jurisdictions.[68]

195 While it is helpful to understand the scope of indecent assault when comparing it with the potential scope of sexual assault, the old offence is really only of historical interest. As I shall emphasise later, the new provisions must be construed according to their own terms.

S****UBMISSIONS ON MEANING AND SCOPE OF SEXUAL TOUCHING

196 I turn now to some, but not all, of the submissions made by the parties and amici curiae on the meaning and scope of sexual touching in s 40(1)(b).

197 It is convenient to commence with some of the principal submissions made on behalf of the Director, which may be summarised as follows.

198 First, s 35B(2) provides an inclusive definition of when touching may be sexual.

199 Secondly, to the extent that they arise, the circumstances in s 35B(2) must be considered but are not exhaustive of whether a given touching is sexual.

200 Thirdly, the considerations in s 35B(2)(a) and (b) include matters that were previously relevant to the sexual connotation or sexual intent required for indecent assault.

201 Fourthly, while, under s 35B(2)(b), the intention to seek or get sexual arousal or sexual gratification must arise at the time of the touching, "this does not preclude evidence [of events] preceding and, in certain circumstances, subsequent to the touching from being taken into account" in determining whether that intention existed.

202 Fifthly, touching that does not fall within either paragraph (a) or paragraph (b) of s 35B(2) may nonetheless fall within paragraph (c) and be sexual in light of the manner of the touching or the circumstances in which it occurred.

203 Sixthly, the circumstances that may fall within paragraph (c) of s 35B(2) include any sexual connotation arising from the circumstances, or any sexual interest that the accused had in the complainant, surrounding or leading up to the time of engaging in the touching, which in turn may contribute to a finding that the touching was sexual.

204 Seventhly, what makes an instance of touching sexual need not derive from its immediate circumstances. Section 35B(2), and in particular paragraph (c), allows for consideration of events and circumstances that are not contemporaneous with the touching, including, for example, the prior relationship between the accused and the complainant. In this way, the requirement, applicable to the law of indecent assault, that there must be something indecent in the immediate circumstances of the assault, does not apply by analogy to the element of sexual touching in sexual assault.[69]

205 Eighthly, whether an instance of touching is sexual is to be determined objectively.

206 Finally, the complainant's subjective belief or opinion about whether an instance of touching was sexual is not required. Nor is such evidence admissible to prove that the touching was sexual. However, a complainant's evidence on similar issues may be relevant as a physical description of the touching (for example, with respect to the precise location of the touching or its manner, such as a caress), which in turn may be relevant to whether the touching was sexual.

207 In the Director's submission, when CD said that the waist-touch was an "intimate touch ... not like a stranger", she was not expressing an opinion about whether the touching was sexual, but rather was giving a physical description of the touching. Used in this way, the submission continued, the evidence was relevant and admissible, but could not be determinative of whether the touching in issue was sexual.

208 Some of the principal submissions of amici curiae were these.

209 First, whether the person doing the touching seeks or gets sexual arousal or sexual gratification (within the meaning of s 35B(2)(b)) is a matter to be determined objectively. Similarly, the overall assessment of whether a touching is sexual under any part of s 35B(2) is to be determined objectively.

210 Secondly, on the question of "immediacy", s 35B(2)(a) is phrased in such a way that the concept seems to have no work to do. Section 35B(2)(b), in contrast, must require that the accused intended to seek or get sexual arousal or sexual gratification from the touching at the time of the touching. Section 35B(2)(c) appears not to import a concept of timing in relation to the circumstances of the touching, and it might be that matters which occur prior or subsequent to a touching may be taken into account, though those in the latter category may hold little weight.

211 Finally, while a complainant's evidence of a given instance of touching may be relevant to an assessment of what physical action occurred, the witness's opinion is not relevant to determining whether the touching was sexual.

212 In the main, AB adopted the submissions of amici curiae. However, he maintained the submission, for which he sought to draw support from the law of indecent assault - in particular, Lasry AJA's reasoning in Sabet v The Queen[70] - that only the circumstances immediately connected with the touching can go to whether or not it is sexual.

C****ONCLUSIONS ON THE MEANING AND SCOPE OF SEXUAL TOUCHING

213 My conclusions on the meaning and scope of the element of "sexual" touching follow. While some of these conclusions are not strictly necessary to the resolution of AB's case, I think it is preferable that I state them for guidance in matters to come.

214 The collective structure of ss 40(1), 35(1) and 35B(2) is somewhat unusual. Where their proper construction is concerned, the relationship in which those sections stand to one another and various aspects of their wording pull in different directions.

215 Section 40(1)(b) has the result that an instance of touching will not amount to a sexual assault unless (putting to one side the elements in s 40(1)(a), (c) and (d)) the touching is "sexual".

216 Relevantly, s 35(1) reads that "[i]n Subdivisions (8A) to (8FA) ... sexual, in relation to touching - see section 35B". Section 35(1) is entitled "definitions", and various of its paragraphs contain definitions in the strict sense of that term, whether in themselves[71] or by reference.[72]

Section 35B(2) does not codify the meaning of "sexual" in relation to touching

217 Given the foregoing, s 35(1), with its austere reference to s 35B(2), might be thought to suggest that the latter provision effectively codifies the meaning of "sexual" vis-à-vis touching. But, for the reasons that follow, s 35B(2) is not to be read in that way. Section 35B(2) does not contain a definition of "sexual", much less an exhaustive one. As we shall see, reading s 35B(2) as if it provided a definition of "sexual" in relation to touching will in many cases be semantically inapt. Where it is possible to read the section in that way, in the sense that one could do so intelligibly, doing so would produce absurd results.

218 Textual considerations alone provide a solid basis upon which not to read s 35B(2) as furnishing a definition of the expression "sexual" in relation to touching, or an exhaustive test for when touching will be sexual.

219 Before turning to consider each of the paragraphs in s 35B(2), there are six components of s 35B of relevance for present purposes. First, there is the word "may" in the chapeau to s 35B(2). Second, there is the phrase "due to" following close behind. Third, there is the disjunctive conjunction "or" separating each paragraph of s 35B(2). Fourth, there is the fact that the word "sexual" is used in paragraph (b). The fifth and sixth components relate to s 35B(1), the wording of which is relevant to the construction of s 35B(2) for reasons I shall explain. Section 35B(1) opens with the words "[t]ouching may be done". Further, each of the three paragraphs of that subsection is separated by an "or".

220 Section 35B(2)(a), in so far as it refers to "the genital or anal region, the buttocks or ... the breasts", might be thought to have the effect that the touching of any of the listed areas is necessarily sexual. But that is not so. First, to read s 35B(2)(a) in that manner would be to ignore the word "may". It follows from the use of "may" that the fact a person is touched in one of the listed areas will not necessarily make that touching sexual.

221 Second, the words "including (but not limited to)" in s 35B(2)(a) have the effect that the expression "the area of the body that is touched" has an indeterminate reference. Because the paragraph contemplates that the touching of any area of the body might be sexual, it cannot furnish a test (or part of a disjunctive test) for when touching will be sexual. There is no warrant for reading the paragraph in such a way that a touching of an expressly listed area will be considered sexual, whereas a touching of some other area might be, according to the circumstances. Thus, s 35B(2)(a) does not determine whether touching is sexual, even in certain instances (for example, where the "genital area" is touched).

222 This reading of s 35B(2)(a) might be thought inconsistent with the decision of the Court of Appeal in Seymour (a pseudonym) v The Queen.[73] Seymour is the only decision of this Court in which the element of sexual touching has been considered. In that case, the applicant challenged four guilty verdicts returned against him on charges of sexual offences, including one of a sexual assault of a child under 16, contrary to s 49D(1) of the VCA. On the latter charge, it was alleged that, during what was said to be a game, the applicant tickled his daughter (aged 11) on her stomach, and on or near her vagina beneath her underpants, on multiple occasions. As in the offence of sexual assault under s 40(1), one of the elements of the offence in s 49D(1) is that the touching was sexual.[74] The applicant submitted that the verdict was unreasonable because that element was not proved.

223 For the purposes of determining the ground of appeal, Kaye and Weinberg JJA,[75] in a joint judgment, appeared to accept what their Honours described as "the underlying premise" in the applicant's submissions - namely, that the jury could not have been satisfied that the touching was in the genital region (within the meaning of s 35B(2)(a)) and that, accordingly, they could not have convicted unless satisfied that the applicant sought or got sexual arousal or sexual gratification from the tickling (within the meaning of s 35B(2)(b)).[76] But their Honours held that it was well open to the jury to draw the latter inference from the evidence that the applicant tickled the child near the vagina, beneath her underpants, on a number of occasions.[77] Accordingly, this point failed.[78]

224 On one reading of their Honours' remarks, they considered that a touching of the genital region necessarily would be "sexual", but that the touching of some other area would not be, at least not by force of s 35B(2)(a). I do not think that reading of their Honours' remarks is correct, however. The most that can be said is that, in the circumstances of the case before them, satisfaction that the touching was on the complainant's vagina would have been enough, without more, to justify a conclusion that the touching was sexual. If the jury found that the touching was only near the complainant's vagina, consideration of other evidence that would tend to prove that the applicant sought or got sexual gratification or arousal was necessary.

225 The same observations apply a fortiori to s 35B(2)(c), which refers simply to "any other aspect of the touching, including the circumstances in which it is done". It is difficult to see what facts, matters and circumstances are not contemplated by that paragraph: it does not provide a criterion capable of satisfaction.

226 Section 35B(2)(b) is different, in the sense that it refers to a situation in which the person doing the touching "seeks or gets sexual arousal or sexual gratification from the touching". A person either seeks or gets sexual arousal or sexual gratification from touching another, or he or she does not. However, it does not follow that touching by a person whose circumstances are described by paragraph (b) is ipso facto sexual.[79] To read paragraph (b) in that way would be to ignore the word "may". It would also involve attributing to the paragraph an operation and effect different from that of paragraphs (a) and (c). Given the structure of s 35B(2), the paragraphs should be read consistently where possible.

227 The construction of s 35B(2) I have proposed is supported by consideration of s 35B(1), which provides that "[t]ouching may be done ... (a) with any part of the body" or "(b) with anything else" or "(c) through anything". Section 35(1) refers a reader searching for the meaning of "touching" to s 35B in the same way as it refers the reader looking for the meaning of "sexual" to s 35B. But, plainly, s 35B(1) does not provide a definition of "touching". Instead, it provides only that certain forms of touching will be considered "touching" for the purposes of Subdivisions (8A) to (8FA).

228 Thus, it will not follow necessarily from proof of a matter contemplated by any of the paragraphs (a) through (c) of s 35B(2) that the touching to which the proof relates is sexual. Instead, section 35B(2) should effectively be construed as if its opening words read, "In considering whether touching is sexual, regard may be had to", and as if paragraph (b) commenced with the word "whether" and not the words "the fact that". All s 35B(2) says is that touching "may" be sexual in a variety of circumstances, which circumstances are not exhaustively specified.

229 The way I have chosen to construe s 35B(2) might be thought to involve a significant departure from the words of that provision. However, as I have demonstrated, subsection (2) cannot be read as if it provided a definition, in the strict sense of that term.

230 Something should be said about the disjunctive separation of paragraphs (a) through (c). That is because at first blush, in combination with the expression "due to" in the chapeau to s 35B(2), the use of "or" might not seem to sit well with the construction of s 35B(2) I have proposed. The assertion that touching may be sexual "due to" a number of factors, each of which is separated by an "or", might be thought to mean that the fact that an instance of touching is describable by reference to one of those factors, say, paragraph (a), is enough to render it sexual without the need to consider the matters in paragraphs (b) and (c). Indeed, taken at its highest, the word "or" implies not just sufficiency but mutual exclusivity.

231 But the use of "or" does not have that effect. Insofar as mutual exclusivity is concerned, it should be obvious that an instance of touching might be sexual on account of matters contained in more than one paragraph. It would be artificial to read s 35B(2) in such a way that a court was required to reach its conclusion that an instance of touching was sexual on the basis of a confined set of circumstances.

232 Where sufficiency is concerned, it is simply not the case that a trier of fact will be relieved of the need to have regard to all the circumstances in determining whether or not a touch to a named area in s 35B(2)(a) is sexual. As will become apparent in the examples I turn to below, reading s 35B(2) in that way would produce absurd results.

233 In refusing to read "or" disjunctively, I take some comfort in the fact that the paragraphs of s 35B(1) are separated in the same manner notwithstanding the fact that it is clearly possible, say, to touch another person both with an object (see s 35B(1)(b)) and through clothing (see s 35B(1)(c)).

234 That is not to say, however, that proof of a matter falling within only one of the paragraphs of s 35B(2) might not by itself suffice to prove that the touching was sexual. Section 35B(2) is worded positively. It says that touching may be sexual due to, for example, the fact that it is on the breast. That is, proof of that fact may be sufficient, in some circumstances, to render an instance of touching sexual. Suppose a man is walking down the street and, without warning, reaches out and touches the breast of an oncoming pedestrian. Proof of that fact alone, in all the circumstances, might render that instance of touching sexual. True enough, one might think, the reason that instance of touching is sexual is because of the absence of any other factor that might render it innocuous. But, in this example, proof of the absence of some other factor is not required.[80]

Alternative construction of s 35B(2) would produce absurd results

235 In case the linguistic analysis above does not provide sufficient reason to justify the reading of s 35B(2) I have proposed, for the following reasons, in circumstances where it is logically open, the alternative construction - whereby the provision is read as if it provided a definition stricto sensu - would produce absurd results.

236 Consider this example. Suppose that a woman hugs another - whether it be her child, her partner, a friend, an acquaintance or a virtual stranger. In doing so, her breasts inevitably come into contact with the other person, albeit through clothing. The woman has no intention, purpose or motive of the kind specified in s 35B(2)(b). Nor does she receive any form of arousal or gratification mentioned in that paragraph. Further, there is nothing else about the circumstances that suggests that the touching is sexual. Yet, if nothing more than proof of an instance of touching that, on its face, came within the words of s 35B(2)(a) were required to establish sexual touching, then the woman's behaviour would be held to be sexual for the purposes of s 40(1)(b).

237 Further, let it be assumed that the woman in this example knows that her breasts will touch the other person in the course of the hug. Conventional reasoning about intention in the criminal law would mean that it can be inferred that the woman intended that her breasts touch the other person - because she knows that such contact is inevitable when she deliberately engages in a hug - even though that is not her purpose or motive in doing so.[81] Thus, s 40(1)(a) ("intentionally touches another") is also potentially satisfied.

238 But is this woman at risk of being charged, prosecuted or convicted? I should hope not. There would be no offence of sexual assault - and therefore the woman would not be put in jeopardy - because of the likely presence of consent (s 40(1)(c)) and a reasonable belief in consent (s 40(1)(d)). But, in my view, that likelihood is not a sufficient safeguard against charging, prosecution or conviction.

239 More importantly in the present context, it is the touching itself that could not sensibly be described as sexual. The woman just wants to hug the other person for reasons unconnected with matters sexual. Yet to read s 35B(2)(a) as if it were a definition, instead of permissively, would lead to the absurd result that the woman's touching of another in this way was sexual. It is nonsense to think that the legislature intended that any such touching could, or should, be classified as sexual. When women hug others in the circumstances I have described, there is not the slightest hint of anything sexual in their contact. If it were otherwise, many would be surprised - and appalled - to learn that millions more instances of sexual touching were occurring every day in this State.

240 In like situations, the same is true for both males and females when it comes to their buttocks or genital areas. These areas of the body may touch another person or each other (through clothing) when hugging or when other innocuous, albeit intentional, contact occurs. Despite the view expressed in the Consultation Paper - namely, that a requirement of intentional touching "will exclude unintentional touching from this offence, such as may happen on a very crowded train"[82] - I would be less confident that those determinedly making their way to the exit on a crowded tram or train would not be held to have intentionally caused their breasts, genitals or buttocks to touch another commuter. Yet, on any sensible view of the world, this is not sexual touching, and should not be considered to be sexual touching for the purpose of s 40(1)(b).

241 Of course, it might be entirely different if the accused in these examples sought sexual arousal or gratification from the touching, within the meaning of s 35B(2)(b). For example, if the hugging woman sought sexual arousal or gratification from her breasts touching the chest or shoulder of another, or the commuter had the same purpose when he or she brushed his or her buttocks or genitals up against another in a dash for the tram door, then, despite the permissive words "[t]ouching may be sexual due to", it is difficult to see how these instances of touching would not be sexual. Thus, provided the other elements in s 40(1) are met, frottage would amount to sexual assault.

242 Similarly, if there were some "other aspect of the touching, including the circumstances in which it is done" (within the meaning of s 35B(2)(c)), capable of rendering the touching sexual, then the trier of fact might well legitimately conclude that the touching was indeed sexual. Such circumstances might include sexually suggestive remarks made by the accused at the time of the touching, or a sexually suggestive manner of contact.

243 As it happens, the foregoing construction of s 35B(2) is consistent with the extrinsic materials that preceded the passage of the amending legislation. Thus, in the Consultation Paper, under the heading "The touching is sexual", the following was said:[83]

The sexual nature of the touching would be defined in an inclusive way. This definition would cover what is currently covered by the notion that the act had a 'sexual connotation'.

Under the proposed approach, the touching may be sexual due to the areas of the body that are touched or used in the touching (for example, touching on the genitals or breasts). But it is also possible that the accused's motivation to obtain sexual gratification is what primarily gives the conduct its sexual characteristic. Further, for the definition to be appropriately open and inclusive, it would specify that 'some other aspect' of the touching could be involved in making the touching sexual, including its circumstances.

244 Further, under the heading "Exception for good faith medical or hygienic procedures", the following was said in the Consultation Paper:[84]

The use of the word 'may' in the proposed definition of 'sexual' touching is intended to make it clear that just because a certain part of the other person's body is touched (such as the genitals), this is not always sufficient to make the touching 'sexual'.

245 Similarly, in the Explanatory Memorandum to the 2016 Amending Bill, it was said of the proposed s 35B(2) that it is "an inclusive definition of what may make touching sexual".[85] The same was said in the Explanatory Memorandum to the 2014 Amending Bill, which introduced s 37E(3), which was the predecessor to s 35B(2).[86]

246 It will be apparent from the foregoing that the expression "sexual" in s 40(1)(b) must be given some content. That is not to say, however, that the considerations in paragraphs (a) through (c) of s 35B(2) might not inform the meaning of the expression "sexual" in s 40(1)(b). They will. But, if all s 35B(2) does is set out considerations relevant to whether a given instance of touching is sexual, then, clearly, something more is required - namely, the trier of fact must ask whether, taking into account these considerations, the touching is sexual. It is, however, no easy task to say precisely what that something more might be.

247 While "sexual" is an ordinary English word, whether touching is sexual or not will be clear in some cases but not so clear in others, particularly in those at the margins. Matters sexual may be nuanced and complex. It is therefore difficult, if not impossible, to provide a touchstone for what is sexual.

248 Nevertheless, I think it can be said that, in addition to the considerations in s 35B(2), common understandings of social behaviour may inform whether an instance of touching is sexual.

249 In saying this, however, I am not to be taken as suggesting that the question whether touching is sexual is one of public morals, or contemporary standards of modesty and decency, in the same way the test for whether an assault was indecent was.[87] As well as importing considerations which the text of the provisions cannot bear, to measure whether a touching was sexual by these considerations would tend to subvert the legislature's attempt to replace "the outdated and ambiguous concept of 'indecency' with the clearer concept of sexual touching without consent".[88]

Objective test with subjective factors, where relevant

250 Further, I am persuaded that whether an instance of touching is sexual is to be assessed objectively.

251 In the examples discussed earlier, whether or not there were subjective considerations involved, in the end, the conclusion that the touching was or was not sexual involved an objective assessment of the character of the touching in issue.

252 Section 40(1) of the VCA does not ask whether a reasonable person would consider that the charged instance of touching is sexual, nor does s 35B(2) make reference to any such test.[89] But it does not follow from the fact that whether touching is sexual is not to be determined by reference to what a reasonable person would consider that the test is subjective in the sense that the answer to it depends upon - or, perhaps more accurately, is determined by - the mental state of the accused at the time of the offending. Rather, consistently with the submissions of the parties and amici curiae, the test is objective.

253 Though my conclusion in this regard may seem obvious, for two reasons, I have taken care to justify it in what follows. First of all, the common law presumption in favour of mens rea might be thought to mean that a subjective approach to whether touching is "sexual" is the default position.[90] Second, what is important here is not the rule, but the qualification: while the question whether touching is "sexual" is objective, subjective considerations may be relevant to its answer.[91] It will be seen that the justifications for construing ss 40(1)(b) and 35B(2) so that they create an objective test do not furnish a reason for disregarding such subjective considerations.

254 A wholly subjective approach to the question whether touching is "sexual" would be inconsistent with the text of the VCA. Section 48B(a) excludes as a defence the accused's mistaken but honest and reasonable belief, contemporaneous with the touching, that the touching was not sexual. This is relevant in two ways. First, the fact that the provision refers to a "reasonable" belief suggests that the question whether an instance of touching is sexual is capable of being ascertained objectively.[92] Secondly, and more fundamentally, s 48B(a) on its face forecloses the possibility that the question whether touching is sexual is subjective in that it depends upon the belief of the accused.

255 As a matter of common sense, were such a defence allowed, it would lead to absurdity. It would allow an accused to grant him or herself absolution with his or her own idiosyncratic views about what is and what is not "sexual".

256 The qualification to which I referred earlier is that an accused's knowledge, belief, intention, purpose, motive or the like may be relevant to whether an instance of touching was, objectively considered, sexual. A glance at s 35B(2)(b) makes that obvious. Plainly, a court cannot ascertain whether, for example, an accused sought sexual gratification by touching the complainant without inquiring into the state of the accused's mind at the relevant time. Accordingly, evidence that, for example, an accused was not seeking sexual arousal when he or she touched the complainant will be relevant. Such evidence may be given positively as well as negatively. Consider the example given earlier of the person who allows his or her genitalia or buttocks, or, in the case of a woman,[93] her breasts, to brush up against fellow commuters on a crowded train. Evidence that the accused was hurrying to alight at his or her stop before the doors closed would be relevant to the inquiry called for by s 35B(2)(b).

257 It will be apparent that allowing evidence - whether from an accused or otherwise - that the charged act was unaccompanied by the circumstances specified in s 35B(2)(b) is not inconsistent with s 48B(a), which relates to the belief of an accused as to whether an instance of touching was "sexual" within the meaning of s 40(1)(b). Nor will admitting such evidence give rise to the danger that the accused's idiosyncratic notion of what it means for touching to be sexual will determine the outcome. In the example just given, evidence that the accused was in a hurry to get off the train would not be evidence about what he or she thought it meant for touching to be sexual.

258 It need hardly be said that a complainant's belief that an instance of touching was sexual is irrelevant. In the first place, were it relevant, an accused's guilt might depend upon the complainant's peculiar ideas about when touching is sexual. But more fundamentally, it follows from what I have said that the question whether an instance of touching is sexual is a question of mixed fact and law: it involves determining whether the facts as found fall within the legal standard provided by s 40(1)(b). Accordingly, a complainant's belief that a charged instance of touching was sexual is irrelevant, and to admit evidence of such a belief would be to permit the abdication or usurpation of the duty of the trier of fact.[94]

259 In that connection, however, it is again necessary to admit of a qualification. A complainant's evidence of the nature of the touching or the circumstances in which it was done will often be relevant to the question whether the touching is sexual. A complainant's description of a touch as, for example, a "caress" or even as "intimate" might be relevant as evidence of a lay opinion. But such evidence will be relevant only to the extent that it is used to describe the physical act of the touch itself,[95] which in turn may be relevant to whether the touching was sexual.

260 Finally, I note that the conclusion I have reached on the construction of ss 40(1)(b) and 35B(2) is consistent with the Explanatory Memorandum to the 2016 Amending Bill, where it was said that "the sexual nature of the touching ... is objective".[96]

Whether s 35B(2)(a) and (b) include matters relevant to indecent assault

261 It will be remembered that the Director submitted that the considerations in s 35B(2)(a) and (b) include matters that were previously relevant to the sexual connotation or sexual intent required for indecent assault.[97]

262 That is so. But this is neither here nor there in ascertaining the meaning of sexual touching in the new sexual assault provisions, which must be construed according to their own terms.

Whether sexual connotation or sexual interest relevant to whether touching is sexual

263 It will also be remembered that the Director submitted that the circumstances that may come within the terms of paragraph (c) of s 35B(2) include any sexual connotation arising from the circumstances, or any sexual interest that the accused had in the complainant, surrounding or leading up to the time of engaging in the touching, which in turn may contribute to a conclusion that the touching was sexual.

264 I accept that submission, but the following matters must be mentioned. First, it is important not to treat the notion of sexual connotation, as that term was understood in the law of indecent assault, as providing a criterion for determining whether an instance of touching is sexual under the current provisions. As I have just said, these provisions must be construed according to their own terms. However, if the term sexual connotation is used in its descriptive sense - namely, that the circumstances of the touching have sexual overtones - then any such finding may contribute to a conclusion that the touching in issue was indeed sexual.

265 Secondly, if there is evidence that an accused has a sexual interest in the complainant, that too may contribute to a conclusion that the touching was sexual. For example, such evidence may assist in proof that the accused sought sexual arousal or gratification from the touching, within the meaning of s 35B(2)(b).

266 But an instance of touching will not be sexual merely by virtue of a sexual interest the accused might have had in the complainant at or around the time of the touching. If it were otherwise, it would be sexual for an accused to touch a complainant in any way - even, say, by way of a handshake - if he or she had a concurrent sexual interest in the complainant. The accused might have found the complainant very attractive, and may even have harboured a secret desire to have sex with him or her, but those circumstances would not, by themselves, render the touching sexual.

267 On a new topic, it will be remembered that AB submitted that only the immediate circumstances of an instance of touching may be considered when assessing whether the touching is sexual.

268 He relied on a passage from the judgment of Lasry AJA in Sabet, where his Honour said the following:[98]

I do not accept the respondent's written submissions that there is no requirement for immediacy in the indecent circumstances that would make the act an indecent assault. This Court has not been referred to authorities that support a concept of a continuing offence. On the contrary, authorities including R v Harkin[99]... clearly support a requirement that the assault be directly accompanied either by a sexual connotation, with the assault itself of a sexual nature or associated touching of the complainant being of a sexual nature, or by a specific intention to obtain sexual gratification.

269 But, for reasons that follow, I do not accept AB's submission.

270 First, Sabet concerned the offence of indecent assault, not the new offence of sexual assault or the element of sexual touching. Thus, the reasoning on this issue cannot impact in any direct way on the construction of the new sexual assault provisions.

271 Secondly, I prefer the Director's submission on the topic, which, in part, was put in the following terms:

In considering any other "aspect of the touching" [in s 35B(2)(c)], the individuals involved and factors such as the relationship between the individuals involved and how the conduct was embarked upon must be relevant. For example, the relationship and shared experience between individuals is capable of giving sexual colour to touching in a manner, or on a part of the body, that may not be sexual between other individuals. Indeed, to exclude such factors surrounding the touching would require a construction of [s 35B(2)(c)] which would be devoid of any context to the touching in question and it is difficult to see what work "including the circumstances in which it is done" would have to do if immediacy [were] required.

272 Plainly, the relationship between the individuals involved and how the conduct was embarked upon may be relevant to whether the touching was sexual. So too might there be relevance in a host of other considerations that are not immediately connected with the touching, but which are necessary to consider in order to have a true understanding of whether the touching is sexual. Invariably, the context in which an instance of touching occurs will be important.

273 That said, in some cases, there will be nothing more than the immediate circumstances of the touching to go on. Further, in most cases, the immediate circumstances are likely to be more important than those further removed from the touching. As amici curiae submitted, s 35B(2)(b) addresses situations where the accused sought or got sexual arousal or sexual gratification from the touching, which must mean at the time of the touching. But that does not exclude the potential relevance, to any of the situations described in the three paragraphs of s 35B(2), of events occurring prior (or even subsequent) to the touching.

274 It is, however, impossible to lay down a rule of general application in advance. Each case necessarily will turn on its own facts.

275 As we shall see shortly, while matters somewhat removed from the instances of touching alleged in this case might potentially have been relevant to whether each touching was sexual, in my view, they were not, in law, capable of amounting to anything probative of sexual touching.

276 I turn now to apply these principles to the question whether the judge's conclusion that the cheek-kiss amounted to a sexual assault was vitiated by jurisdictional error or error of law on the face of the record.

277 It will be remembered that, in summary, Grounds 1(b)(i), (ii), (iii) and (iv) complain:[100]

a) that the judge applied the wrong test in making the finding that the kiss on the cheek was sexual, including by failing to consider the immediate circumstances of the touching, which included the fact that a cheek-kiss is a common farewell gesture;

b) that it was unreasonable to make that finding and to exclude the hypothesis that the cheek-kiss was merely a farewell gesture; and

c) that the judge's reasons for making that finding were inadequate.

Application of wrong test/Conclusion not open in law

278 I will consider together AB's complaint that the judge applied the wrong test in concluding that the cheek-kiss was sexual, and his complaint that the latter conclusion was not open in law on the facts found by his Honour. That is because, for reasons I will explain, the findings of fact the judge made could not sustain a conclusion that the cheek-kiss was sexual. It follows that, in order to conclude as he did, the judge must either have asked himself the wrong question or else erred in his application of the test for sexual touching to the facts as found.

279 It may be apparent from the foregoing - and from the reasons below - that I accept that it was unreasonable of the judge to exclude the hypothesis that the cheek-kiss was "merely" a farewell gesture, insofar as saying so is simply a positive way of expressing the conclusion that it was not open for the judge to conclude that the touching was sexual. But that is not to say that the judge's error lay specifically in excluding the hypothesis that the cheek-kiss was simply a means of saying goodbye.

280 In addition to the inability of the judge's factual findings to sustain a conclusion that the cheek-kiss was sexual, there are four further matters which suggest that the judge applied the wrong test. First, on no rational view of the evidence could there be findings of fact that would justify a conclusion that the cheek-kiss was sexual. Secondly, as I indicated earlier, the judge made no mention of s 35 or s 35B(2) during the hearing or in his reasons. Nor does examination of his reasons reveal that he was cognisant of either of those provisions. Thirdly, he did not call for submissions on those provisions, or on the more general question of when an instance of touching will be "sexual". Fourthly, while it is hard to parse, one of the available constructions of the passage in the judge's reasons in which he purports to explain why the cheek-kiss was sexual provides positive support for the conclusion that he asked himself the wrong question.

281 Apart from setting out the elements in s 40(1) and (some of) the evidence relevant to the first charge, the judge's reasons for finding that the cheek-kiss constituted a sexual assault amounted to this:[101]

[23] [i] I accept the evidence of [CD] in relation to the first charge.

[ii] I find that, after a pleasant exchange on the tram between [CD] and [AB], [AB] seems to have mistaken the signals advanced by [CD], who was only being polite.

[iii] He misinterpreted the short relationship that he had with [CD] during a short conversation on the tram and took the liberty to kiss her on the cheek.

[v] It was a touching by him of [CD] which she did not consent to and, in my view, he ought to have known that she did not consent to, if only from the fact that she offered her hand to shake hands; a very different action, in my view, from a kiss, either on the lips or on the cheek.

[vi] The kiss in the circumstances here was an unwarranted touching by [AB] of [CD].

[vii] It clearly was of a sexual nature, given that the two had barely met and had met in a most informal way, both being passengers on the tram.

282 The Director submitted that the essence of the judge's stated reasons for finding that the kiss was sexual is found in sub-paragraph [vii]. I shall return to this issue later.

283 Sub-paragraph [v] appears to address the absence of both consent and a reasonable belief in consent (albeit, in the latter case, not in the terms employed in s 40(1)(d), which I shall discuss later). Sub-paragraphs [ii] and [iii] refer to AB's mistaken understanding of "the signals advanced by [CD]", which goes to reasonable belief in consent (which, again, I shall address later). Sub-paragraphs [iv] and [vi] refer to the kiss being "unwarranted" (to which I shall return shortly).

284 In relation to the question whether the judge was cognisant of ss 35 and 35B(2), the Director submitted that it could be inferred that the judge relied on s 35B(2)(c), but not on s 35B(2)(a) or (b). There were four reasons. First, there was no mention of any findings that would fall within the considerations mentioned in either paragraph (a) or (b). Secondly, the Director submitted that there was no evidence that would support a finding that AB sought or got sexual arousal or gratification within the meaning of paragraph (b). Thirdly, paragraph (a) was said to be inapplicable, because the cheek-kiss did not involve any of the areas of the body expressly listed in that provision.

285 Fourthly, on the other hand, it was said that the judge must have had regard to the matters within paragraph (c) because, following his conclusion that the touching "clearly was of a sexual nature", his Honour went on to list the circumstances which drove him to that view, namely "that the two had barely met and had met in a most informal way, both being passengers on the tram".

286 Insofar as the Director's submission that the judge had regard to some of the circumstances surrounding the cheek-kiss was geared towards a conclusion that he must have been cognisant of paragraph (c), I do not accept it. In the absence of any express reference to paragraph (c) or its terms, or to any part of s 35B(2), this is speculative. My conclusion in that regard does not matter much, however, because whether or not the judge was aware of paragraph (c) is of subsidiary importance; it is only of indirect relevance to the question whether he applied the wrong test. That said, I consider that the fact that the judge's reasons do not suggest he had regard to the sections which inform the judgment whether an instance of touching will be sexual make the conclusion that his Honour did not ask himself the right question more likely.

287 However, I do accept the Director's submission insofar as consideration of the judge's reasons reveals that he had regard to some of the circumstances surrounding the cheek-kiss. But even accepting that is so, that fact cannot overcome the reality that the judge could not have applied the correct test and still have concluded that the cheek-kiss was sexual. For reasons I shall give shortly, the evidence before his Honour simply could not support that conclusion.

288 Returning to sub-paragraph [vii] of his Honour's reasons, I mentioned earlier that it is difficult to parse. This is because those reasons are so thin. Nevertheless, I think that the most likely interpretation is this. By his statement that the kiss was sexual because AB and CD had "barely met" and had done so in an "informal" context, the judge meant that it was not proper - in the sense that it was contrary to some unarticulated standard of acceptable conduct - for AB to kiss CD on the cheek in those circumstances. That interpretation of the reasons might be thought more likely in light of his Honour's repeated characterisation of the kiss as "unwarranted".

289 Alternatively, the judge might have relied on the fact that the two had barely met to ground an inference that AB cannot have had an innocuous motive, as it were, for the kiss - for example, to communicate affection or farewell platonically, as one might to a friend - but instead had some sexual purpose in kissing CD, or that he derived sexual arousal or gratification from it. However, an unexpressed finding of this nature is extremely unlikely given its potential importance in this case. Surely, a judge of his Honour's experience would have mentioned such a crucial finding in his reasons if indeed he had made such a finding. In any event, the evidence could not sustain such a finding.

290 Plainly, if the first construction of sub-paragraph [vii] is correct, then his Honour asked himself the wrong question.[102] Whether an instance of touching is sexual does not depend on whether the trier of fact thinks it is unwarranted or improper - the relevant question is whether the touching is sexual.

291 Because I accept AB's argument that, on the facts as found, the judge's conclusion that the cheek-kiss was sexual was not open, were I to assume that the judge properly directed himself as to the law, I would find that he must have erred in the course of applying it.[103]

292 AB submitted that neither the kiss nor the circumstances in which it was given were capable of being considered sexual. That submission was supported by amici curiae.

293 The Director resisted that submission. She argued that, in addition to the cheek-kiss itself, the matters said to provide a reasonable basis for the judge's conclusion included the following facts (which, I should add, the judge can be taken to have found): that AB met CD on a tram only 35 minutes earlier; that he invited her on a date; and that he left the tram at her stop and approached her again.

294 In my view, the matters relied on by the Director could not allow the cheek-kiss to be held to be sexual. In addition, I have considered whether any other facts found might be capable of supporting a conclusion that the cheek-kiss was sexual.[104] In my view, however, none of those facts could justify such a conclusion.

295 This particular charge of sexual assault provokes the question, What's in a kiss?[105] It is commonly understood that kissing is an action protean in its purpose and character. Depending on the circumstances, a kiss may signify affection, love, concern, respect, reverence, peace, romance, greeting or farewell.

296 Or a kiss may be sexual, depending on the circumstances. The Director was right to submit that, in some circumstances, even a kiss to the cheek could amount to sexual touching. But, in my view, no such conclusion could be reached in the circumstances of this case.

297 The non-sexual cheek-kiss has been around for a good while. When Judas betrayed Jesus, he did so with a kiss to the cheek disguised as a customary mark of respect. Today, the cheek-kiss is a common form of greeting and farewell. When relatives, friends, acquaintances (old or new) or even lovers kiss in this way, it is not usually sexual.

298 To be sure, this practice is not for everyone, and some are less comfortable with it than others. What is more, common sense tells that there might be even greater unease between virtual strangers. Thus, as famously as they might have appeared to him to be getting along, having just met CD on a tram only 30 minutes earlier, AB may have been a tad rash in kissing her cheek instead of shaking her hand, as offered. But neither social misjudgment nor the feeling of violation it caused could be relevant to whether this cheek-kiss was sexual.[106] Something more was required.

299 But there was nothing more. While, on occasions, dating may lead to sexual contact, contrary to the Director's submission, to ask another out does not, of itself, imply anything sexual. Nor was there any evidence that AB's invitation suggested any such thing. The same is true of his request for CD's number after he followed her off the tram. Nor could CD's taking his number or her promise to text him reasonably be seen to give the circumstances a sexual colour. An interest in spending time with, or obtaining the means of contacting, another - whether or not a virtual stranger - cannot, without more, amount to or imply anything sexual. Only by speculation or surmise (as opposed to the legitimate drawing of inferences from evidence) could any contrary conclusions be reached in this case.

300 Further, there was nothing sexual in the location or manner of the kiss. It was to the cheek, not to the neck, ear or lips, a kiss to which might more readily be judged sexual. It was neither passionate nor lingering. It was not accompanied by any words or actions that might have added a sexual overtone (such as a sexualised remark or an amorous embrace).

301 Nothing AB said or did, none of the circumstances, whether considered alone or in combination, was reasonably capable of connoting anything sexual.

302 For these reasons, I am persuaded that the judge must have applied the wrong test or that he wrongly concluded that the facts as found amounted to sexual touching. Accordingly, his Honour's conclusion that the cheek-kiss amounted to sexual touching is afflicted with jurisdictional error.

303 I note that I am also of the view that, if the ground of review recognised in SZMDS and discussed in Rees and Ryan were to apply to findings made once a decision-maker has embarked upon the exercise of its jurisdiction, the judge's finding of guilt would be vitiated by irrationality. I would reach that conclusion all the more readily in light of the fact that the timing of the kiss and the context in which it occurred serve only to confirm that it was merely a farewell gesture. That context included the fact that, as they went to part, CD put out her hand to shake; then AB kissed her on the cheek; and the two then bid each other good evening and went their separate ways.

Constructive failure to exercise jurisdiction

304 AB complained that various matters of relevance to the element of sexual touching were not taken into account by the judge. Rather than a complaint of a failure to take into account relevant considerations, this complaint may be better characterised as one of a constructive failure to exercise jurisdiction.[107] I shall return to the proper characterisation of this complaint shortly.

Went to kiss in "a good way, not like it's a man and a woman"

305 A fact that ought to have been taken into account, but was not, was AB's statement to police in his interview that he leaned in to kiss CD on the cheek "as a gesture ... of a good way, not like it's a man and a woman".[108] The judge made no mention of this evidence at all in his reasons. I am satisfied that he paid no regard to this explanation.[109]

306 AB's statement was relevant to the question whether he sought or got sexual arousal or gratification from the kiss, as well as to whether, for example, he intended by the kiss to communicate sexual interest in CD. It seems obvious that, were a judge confronted with a case in which an accused admitted to kissing the complainant with an intent to obtain sexual gratification to fail to consider the accused's admission, he would thereby err. Equally, then, the fact that the judge here failed to consider AB's statement that, among other things, negatived such an intent, amounts to an error.

307 AB's explanation is also consistent with this instance of touching being merely a farewell gesture (and therefore not sexual), as cheek-kisses commonly are. Thus, there is error in failing to have regard to the evidence on this basis as well.

308 This evidence, then, went to the heart of AB's defence on sexual touching. It was a potentially exculpatory explanation for his attempt to kiss CD on the cheek. It is difficult to see how, in the circumstances of this case, AB's explanation, if accepted (or not rejected beyond reasonable doubt), could not have resulted in a dismissal of the charge.

309 That AB also denied actually going through with the kiss, and that the judge found otherwise, did not rob this explanation of its potentially exculpatory importance.

310 The importance of AB's explanation in his interview is heightened by the fact that a cheek-kiss is indeed a common farewell gesture.[110] The judge also failed to mention, let alone pay any regard to, this important consideration. Yet this too was fundamental to AB's defence. For, again, it went to whether the touching could be sexual.

311 While there was, of course, no express evidence led of this consideration, it is a matter of common knowledge and experience of which a court would be expected to take judicial notice or about which no evidence was required.

312 In my view, it was essential that the judge have regard to this factor, but I am satisfied that he did not.

313 Under this aspect of the complaint, AB submitted that the judge failed to consider the immediate circumstances of the touching. For example, neither in his summary of the evidence nor in his expressed reasons for concluding that the cheek-kiss was sexual did the judge mention the evidence that, at the time of the kiss, AB and CD were about to part or that they bid each other good evening immediately afterwards. Yet this evidence, of course, also went to whether the cheek-kiss was just a farewell gesture. I am satisfied that the judge's failure to mention this evidence shows that he cannot have considered these matters.

314 While it is a close-run thing, I am in the end persuaded that this particular failure amounts to an error as well. My only hesitation is that, while these facts were relevant to whether the touching was just a farewell gesture, they might not be regarded as of the same level of importance to that issue as AB's explanation in his interview and the fact that the cheek-kiss is a common farewell gesture. However, the nature of circumstantial evidence is that one piece of evidence can make another piece stronger.[111] In my view, taken in conjunction with those other pieces of evidence, this evidence was of sufficient importance to the question whether the touching might have been just a farewell gesture that the failure to pay regard to it was another critical error.

315 The legal basis upon which AB put his argument was not entirely clear. However, I consider that the judge's reasons betray a constructive failure to exercise jurisdiction,[112] whether by reason of a failure to take into account a mandatory relevant consideration[113] - namely, that provided by s 35B(2)(c) - or because the fact that his Honour did not deal with a substantial body of evidence relevant to his function evidenced a failure to apply himself to the real question to be decided under s 40(1)(b).[114]

316 Turning to the first possibility, s 35B(2)(c) provides that touching may be sexual due to "any ... aspect of the touching, including the circumstances in which it was done". I consider that paragraph (c) has the consequence that the judge was required to consider the nature of the cheek-kiss and the circumstances in which it happened, including its immediate circumstances. Though the VCA does not state expressly that the trier of fact must consider the matters in paragraph (c), the "subject-matter, scope and purpose" of the relevant provisions make it clear that it must.[115] As the examples I referred to in justifying the construction of ss 40(1)(b) and 35B(2)(c) demonstrated, in determining whether an instance of touching is sexual, context is everything. I also regard it as relevant that an accused's criminal liability will depend on whether his or her act is "sexual". The subject matter with which the provisions deal dictates that a trier of fact is required to consider the nature of the charged act and its surrounding circumstances.

317 It may be objected that the judge's failure to consider the potentially exculpatory matters mentioned above does not amount to a failure to take into account a mandatory consideration; there is a difference between evidence, factual matters and considerations.[116] Accepting that is so, however, I am of the view that his Honour's failure to consider those matters - or, for that matter, anything other than those matters to which he referred in sub-paragraph [vii] of the reasons - is probative of his failure to consider fully the nature and circumstances of the touching, which s 35B(2)(c) required him to do.

318 Further, or alternatively, the judge's failure to consider those same matters evidenced a failure to apply himself to the question to be decided under s 40(1)(b).

319 As I understood the Director, her submission was that the judge set out the evidence in a relatively comprehensive manner and can be taken to have had regard to all relevant matters, including those identified above, whether or not they were mentioned in the reasons.

320 As I have said, however, I am satisfied that his Honour paid no regard to AB's explanation, to the fact that a cheek-kiss is a common farewell gesture, or to the evidence that, at the time of the kiss, AB and CD were about to part and that they bid each other good evening immediately afterwards. I am also satisfied that the judge's failure to refer to these matters makes it plain that he gave no consideration to the possibility that this cheek-kiss was merely a farewell gesture - and therefore to the possibility that the touching might not, in the circumstances, have been sexual.

321 Thus, I am satisfied that the judge constructively failed to exercise his jurisdiction.

322 While it may not strictly have come within his grounds, AB also submitted that the judge misstated the evidence, or drew from that evidence an impermissible inference on a significant issue. Sensibly and fairly, given that AB was unrepresented, the Director nevertheless addressed these complaints as if they were within the grounds.

323 In his summary of the evidence, the judge recorded that CD said that AB "intended - appeared to intend - to want to kiss her on the lips". As AB submitted, this is simply wrong. CD said no such thing. Instead, as we have seen, the following exchange occurred in re-examination:[117]

Now, my learned friend then put to you that he lent in to kiss you - this is at the time when you put your hand out to shake it - he lent in to kiss you on the cheek, but he put to you that he didn't kiss you on the cheek. Remember him saying that question? - - - Yes.

Now, a matter for his Honour, but there was a pause but you said "yeah" to that. Do you remember saying that? - - - I - it - I said "yeah" because I, like, recall - like, it was almost on the lips, like, I think that's what he was referring to because if he was referring to he didn't kiss me at all, that's - I don't know, that's stupid. So I'm guessing he's referring to he, like, kissed me almost on the lips.

324 Thus, CD's evidence was that the kiss on the cheek was "almost on the lips".

325 It follows that the judge mistakenly characterised CD's evidence or illegitimately drew the inference that AB intended - or appeared to intend - to want to kiss CD on the lips. Either way, there was no evidence for the judge's finding, and accordingly it amounted to an error of law.[118]

326 The question then becomes whether that error of law was material.[119] I am satisfied that it was. To begin with, I find it impossible to say that the finding that AB intended or appeared to intend to want to kiss CD on the lips did not deprive him of the possibility of a dismissal of the charge. Further, later in his reasons, in the course of considering the issue of reasonable belief in consent, the judge remarked that AB ought to have known CD did not consent to the kiss, "if only from the fact that she offered to shake hands; a very different action, in my view, from a kiss, either on the lips or on the cheek".[120] There appears to be positive evidence, then, that the judge's finding had an impact on his reasoning towards guilt.

327 In these circumstances, I am persuaded that the judge made a material error of law on the face of the record.

328 Further, I uphold AB's complaint that the judge's reasons on sexual touching were inadequate.

329 A court's reasons, even when hearing a matter summarily, must, at least, expose the path of reasoning which led the judge (or the magistrate) to arrive at his or her decision.[121] A failure to give adequate reasons can and often does lead to a real sense of grievance that a party does not know or understand why a decision was made, and amounts to an error of law.[122] By virtue of s 10 of the Administrative Law Act 1978 (Vic), that error of law will appear on the face of the record.[123]

330 The judge repeatedly described the cheek-kiss as "unwarranted". As I have said, if the judge considered that the fact that the kiss was unwarranted was relevant to the question whether it was sexual, his use of that description suggests he applied the wrong test; in particular, it suggests his Honour thought that notions of propriety or acceptable behaviour inform whether an instance of touching will be sexual. Further, if the judge took his characterisation of the kiss as unwarranted into account in concluding that the kiss was sexual, he thereby took into account an irrelevant consideration.

331 In that connection, I note that the Director submitted as follows:

When stating that the kiss was unwarranted touching in the circumstances, the ... judge did not state that this was relevant to the issue of whether the touching was "sexual". The preceding sentence related to consent and the following sentence related to the issue of whether the kiss was "sexual". Further, as a very experienced judge, his Honour was highly unlikely to have erred in the manner asserted.

332 I neither accept nor reject that submission. It is unclear whether the judge's finding was directed at the question of consent or reasonable belief in consent, or whether it was considered relevant to whether the touching was sexual. It follows that it is impossible to see from the judge's reasons whether or not his decision involved an error of law in that respect, and, accordingly, that those reasons are inadequate.

333 Even accepting, for the sake of argument, the Director's submission that sub-paragraph [vii] contains the entirety of the judge's path of reasoning in relation to whether the touching was sexual, that passage is far too thin adequately to expose his Honour's reasoning. To say that the touching "clearly was of a sexual nature, given that the two had barely met and had met in a most informal way, both being passengers on the tram", reveals nothing about how those factors rendered the touching sexual. Nor was there any analysis of competing considerations or how they might have been excluded.

334 In submitting that the reasons were adequate, the Director argued that allowance must be made for the fact that they were delivered ex tempore in a summary hearing. The Director also submitted that whether the cheek-kiss was sexual was a relatively straightforward issue not requiring any more detailed reasons than those given.

335 I do not accept either of those submissions. The reasons were not, in fact, wholly ex tempore. I think it is plain that, at least in part, they had been drafted between the first and second days of the hearing, and were added to ex tempore by reference to the brief further evidence called on the second day. On the first day, the judge heard evidence from CD, EF and in part from Detective Paulet, which included the playing of AB's record of interview. On the second day, the judge heard the balance of Detective Paulet's evidence-in-chief, which involved playing a short piece of the CCTV footage, and his cross-examination, which was brief and included the tendering of bank records showing AB making numerous purchases at 7-Eleven shops in the city. There was no dispute that, immediately after the close of the prosecution case, the judge went straight into the delivery of what appeared, in the main, to be prepared reasons. If I might say so, the logical structure and detailed nature of substantial parts of the reasons only adds to the view that they had been prepared, in part, between the two hearing days. That said, I accept that allowance still must be made for the fact that these reasons were, in part, ex tempore, and for the summary nature of the hearing.

336 Further, as the fact of the dispute in this Court shows, whether the touching was sexual was not a straightforward issue. This was a case that required analysis of s 40(1)(b) and s 35B(2) and those aspects of the evidence that might be thought to support or undermine the proposition that the cheek-kiss was sexual.

337 I turn now to the grounds concerning the element of sexual touching in second charge of sexual assault, which was based on the touching of CD's waist.

338 It will be remembered that, in summary, Grounds 2(a), (b) and (c) complain:

a) that the judge applied the wrong test in making the finding that the touch on the waist was sexual, including:

• by failing to consider the immediate circumstances of the touching; and

• by finding that the touching, "having regard to the area where [AB] touched [CD,] must be held as a touching of a sexual kind";

b) that it was unreasonable to make that finding; and

c) that the judge's reasons for making that finding were inadequate.

Application of wrong test/Conclusion not open in law

339 AB's complaints that the judge applied the wrong test in concluding that the waist-touch was sexual, and that that conclusion was not open in law on the facts as found by the judge, raise very similar points to those raised in respect of analogous complaints about his Honour's conclusion that the cheek-kiss was sexual. Accordingly, there will necessarily be some repetition in discussing these matters. As in the case of the cheek-kiss, I will consider these complaints together.

340 In order to conclude as he did about the waist-touch, the judge must either have asked himself the wrong question or else erred in his application of the test for sexual touching to the facts as found.

341 In addition to the inability of the facts as found to warrant a conclusion, in law, that the waist-touch was sexual, there are four further matters which suggest that the judge applied the wrong test. First, on no rational view of the evidence could there be a justifiable conclusion that the waist-touch was sexual. Secondly, again, the judge made no mention of s 35 or s 35B(2) during the hearing or in his reasons. Nor does examination of this or any other part of the reasons reveal that his Honour was cognisant of either of those provisions. Thirdly, he did not call for submissions on those provisions, or on the more general question of when an instance of touching will be "sexual". Fourthly, the preferable construction of the passage in the judge's reasons in which he purports to explain why the waist-touch was sexual provides positive support for the conclusion that he asked himself the wrong question.

342 As we have seen, in substance, the judge's reasons for finding that the waist-touch constituted a sexual assault amounted to this:[124]

[24] [i] The second charge of sexual assault relates to what I find again is an unwarranted touching in the street ... at about 6:42:48 on 15 June of 2018.

[ii] The touching is depicted in ... the still photograph taken from the video evidence. It is clear from that photograph that [AB] engaged in a totally unwarranted and unsolicited and not consented to touching by touching [CD] on her right waist area with a flat open hand when she was not even looking.

[iii] Indeed, he was not even looking at her, but purports to be looking straight ahead.

[iv] The video evidence shows that he touched [CD] in the way alleged, walked away, and then he can be seen stopping and looking back.

[v] There is a delay on the video footage where [AB] disappears out of sight, but, then, within a short time later, can be seen walking back in the opposite direction.

[vi] That touching also is a touching unwarranted, [not] consented to, and [AB] knew, or ought to have known, from his previous discussions with [CD], the fact that she had not texted him, the fact that she had not engaged with him in any way, despite their meeting some 10 days earlier.

[vii] The touching, in my view, having regard to the area where [AB] touched [CD], must be held as a touching of a sexual kind. ...

343 The Director submitted that the essence of the judge's stated reasons for finding that the waist-touch was sexual is found in sub-paragraph [vii]. I shall return to this point later.

344 Sub-paragraphs [ii] and [vi] address the absence of consent. Sub-paragraph [vi] also addresses the absence of reasonable belief in consent (although, again, not in the terms of s 40(1)(d)). In a similar way that the issue was mentioned in the reasons in respect of the cheek-kiss, sub-paragraphs [i], [ii] and [vi] refer to the waist-touch being "unwarranted" or "totally unwarranted" (to which I shall return shortly).

345 In relation to the question whether the judge was cognisant of ss 35 and 35B(2), the Director made similar submissions to those made in respect of the judge's reasons for concluding that the cheek-kiss was sexual. In particular, it was submitted that it could be inferred that the judge relied on s 35B(2)(c), but not on s 35B(2)(a) or (b). There were said to be four reasons why. First, again, there was no mention of any findings that would fall within the considerations mentioned in either paragraph (a) or (b). Secondly and thirdly, it was said that there was no evidence that would support a finding that AB sought or got sexual arousal or gratification within the meaning of paragraph (b); and that paragraph (a) was also inapplicable, because the waist-touch did not involve any of the areas of the body expressly listed in that provision.

346 Fourthly, on the other hand, while the judge did not in sub-paragraph [vii] refer to lead-up circumstances of the type he mentioned when addressing the cheek-kiss, as I understood the Director, it was submitted that his Honour must have had regard to the matters within paragraph (c) because the location of the waist-touch was itself an "aspect of the touching" or was one of "the circumstances in which [the touching] was done", within the meaning of that paragraph. That said, in the next breath, it was conceded that his Honour did not, in this part of his reasons, specifically refer to any other circumstances of the touching - as opposed to the area touched - in stating his conclusion. On the other hand, it was submitted - somewhat faintly, I thought - that the judge had already referred to those circumstances elsewhere in his reasons, and that therefore they somehow should be incorporated into an assessment of the reasons given in sub-paragraph [vii].

347 I do not accept the last set of the Director's submissions. In the absence of any express reference to paragraph (c) or its terms, or to any part of s 35B(2), it is speculative to say that his Honour must have had regard to the terms of that provision. Again, my conclusion in that regard does not matter much, because whether or not the judge was aware of paragraph (c) (or of s 35B(2) at all) is of only indirect relevance to the question whether he applied the wrong test. That said, I consider that the fact that the judge's reasons do not suggest he had regard to the sections which inform the judgment whether an instance of touching will be sexual make more likely the conclusion that his Honour did not apply himself to the correct question.

348 However, the judge's reasons in sub-paragraph [vii] make it plain that he had regard to the location of the touching in coming to his conclusion that the waist-touch was sexual. Whether the area where CD was touched is a consideration capable of fitting the description in s 35B(2)(c) (or, for that matter, s 35B(2)(a) - given the words "but not limited to" in that provision), that cannot overcome the reality that the judge could not have applied the correct test and still concluded that the waist-touch was sexual. For reasons I shall give shortly, the evidence before his Honour simply could not support that conclusion.

349 Returning to his Honour's reasons, it is difficult to interpret sub-paragraph [vii] because so little is said. Taken at face value, that passage conveys that the judge held the touching to be sexual because of where AB touched CD - namely, on the side of the waist. But an examination of the CCTV footage of the incident reveals nothing sexual about the manner of the touching or its location. Instead, it is plain that AB was merely attempting to alert CD to his presence. (I shall say more about this below.) As in the case of the cheek-kiss, it appears that his Honour considered that to touch another on the side of the waist, in the particular circumstances, was contrary to some unarticulated moral standard. Again, that interpretation of the reasons might be thought more likely in light of the judge's repeated characterisation of the waist-touch as "unwarranted" or "totally unwarranted".

350 Another possibility is that his Honour considered that to touch a woman on the waist is inherently sexual or, consistently with the submission of the Director, that he considered that such a touching will be sexual because the waist is an area of the body that, unlike, say, the shoulder, is close to the genitalia and the buttocks.

351 As I said when addressing the reasons given in respect of the cheek-kiss, so too here, I think it is highly unlikely that a judge of his Honour's experience would have made a finding that AB had a sexual purpose in touching CD on the side of the waist, but then failed to express that finding in his reasons. Thus, I am not prepared to interpret the reasons as if they contained an unexpressed finding of that kind. Nor could the evidence sustain such a finding in any event.

352 Again, if my preferred construction of the judge's reasons is correct, then his Honour asked himself the wrong question.[125] Whether an instance of touching is sexual does not depend on whether the trier of fact thinks it is unwarranted or improper. Instead, the relevant question is whether the touching is sexual.

353 Further, if the judge considered that to touch someone on the waist is sexual, whether inherently so or on account of the waist's proximity to the genitalia, he was wrong to do so. There is nothing inherently sexual about a woman's waist. With respect to the latter point, ordinarily, there could be nothing sexual in touching, say, another's shoulder, arm or back in order to gain attention. History shows that, for the purpose of facilitating formal introductions, dignitaries sometimes touch Queen Elizabeth II's back in a guiding and affectionate manner. While this might be a breach of royal protocol,[126] it could not sensibly be regarded as sexual touching. The same must be true for the rest of us.

354 That said, the touching of some areas of the body other than, but near to, an area listed in s 35B(2)(a) (i.e., the genital or anal region, the buttocks or the breasts) may more readily be classified as sexual than the touching of other unlisted areas. A touch on another's inner thigh might provide an example. An inference of sexual purpose might be drawn in a situation of that kind, which in turn could justify a conclusion that the touching was sexual. Similarly, even absent such an inference, it still may be open in the circumstances - taking into account the location, manner and context of the touching - to conclude that such a touching was sexual.

355 It is difficult, though, if not impossible, to see how a fleeting touch on the side of another's waist could give rise to any such inference or classification. This area of the body is not usually regarded as sexual. Nor, contrary to the Director's submission, is the side of the waist any closer (meaningfully, if at all) to the buttocks or the genitalia than is the shoulder or the back to the breasts. Again, there would need to be something more in the manner or circumstances of the touching of a waist to render the touching sexual.

356 But, here, there was nothing more. AB's touch of CD's waist involved no caressing or lingering. Instead, it was momentary. It was not on the bare skin but over heavy winter clothing.[127] AB made no sexually suggestive remarks or gestures at any point.

357 That, eight days earlier, CD told him she had a boyfriend, and not to follow her, could not render the touching sexual. To be sure, it was open to infer that AB's appearance in CD's presence was no coincidence, and perhaps even that it was borne of a fixation, which could go to stalking. But there was no evidence that his motive for being there or touching CD in this way was sexual.

358 Nor could anything be added by the fact that the touching was disconcerting to CD or even that it was non-consensual or that AB did not have a reasonable belief in consent.

359 Because I accept AB's argument that, on the facts as found, the judge's conclusion that the waist-touch was sexual was not open, were I to assume that the judge properly directed himself as to the law, I would find that he must have erred in the course of applying it.[128]

360 In the result, I am satisfied that the judge must have applied the wrong test and that, in any event, he wrongly concluded that the facts as found amounted to sexual assault. Either way, his Honour's conclusion that the waist-touch amounted to sexual assault is vitiated by jurisdictional error.

361 I am also of the view that, if the ground of review recognised in SZMDS and discussed in Rees and Ryan were to apply to findings made once a decision-maker has embarked upon the exercise of its jurisdiction, the judge's finding of guilt would be vitiated by irrationality. I would reach that conclusion all the more readily in light of the fact that the context in which the touching occurred serves only to confirm that AB's action was merely a means of alerting CD to his presence. After he touched her waist, fleetingly and over heavy clothing, AB walked a little further, turned and stood there smiling, obviously waiting for CD to turn and respond. All of this is clear from the CCTV footage. Further, CD's evidence in cross-examination was that the contact was a "trying to get my attention type touch".

Failure to consider relevant considerations/Constructive failure to exercise jurisdiction

362 AB submitted that the judge failed to have regard to all of the circumstances of the waist-touch in considering whether it was sexual. For example, neither in his summary of the evidence nor in his expressed reasons for concluding that the waist-touch was sexual did the judge mention the following potentially exculpatory facts:

a) AB's touch of CD's waist was momentary (it did not involve a caress or a lingering touch).

b) The touching was done through heavy winter clothing (it was not, for example, on the bare skin).

c) CD's evidence in cross-examination was that the touch was a "trying to get my attention type touch". This, in my opinion, was capable of being treated as an exculpatory descriptor of the nature of the touch.

d) Consistent with the foregoing evidence was AB's account, in his police interview, that he touched CD's waist in a "friendly" way to "show her that [he was] there".[129]

363 I accept that the judge failed to consider those matters. The sum total of his Honour's reasoning on the point was that "[t]he touching, ... having regard to the area where [AB] touched [CD], must be held as a touching of a sexual kind".

364 It is true that the judge also observed (in sub-paragraphs [ii] and [iii]) that the touch was done with an open hand, that AB purported to be looking straight ahead, and that CD was not looking at the time. But none of those circumstances, properly considered, could bear upon the question whether the touching in the present case was sexual.

365 As in respect of the like complaint concerning the conclusion that the cheek-kiss was sexual, the question here is whether the judge's failure to consider the immediate circumstances of the waist-touch in considering whether it was sexual amounts to an error. Again, the legal basis upon which AB put his argument was not entirely clear.[130] However, I consider that the judge's reasons betray a constructive failure to exercise jurisdiction,[131] whether by reason of a failure to take into account a mandatory relevant consideration[132] - namely, that provided by s 35B(2)(c) - or because the fact that his Honour did not deal with a substantial body of evidence relevant to his function evidenced a failure to apply himself to the real question to be decided under s 40(1)(b).[133]

366 As I indicated earlier, I consider that s 35B(2)(c) has the consequence that the judge was required to consider the nature of the touching and the circumstances in which it happened, including its immediate circumstances. Though the VCA does not state expressly that the trier of fact must consider the matters in paragraph (c), the "subject-matter, scope and purpose" of the relevant provisions make it clear that it must.[134] The context in which an instance of touching occurs is crucial. I also consider it relevant that an accused's criminal liability will depend upon whether his or her act is "sexual"; that is, the subject-matter with which the provisions deal dictates that a trier of fact is required to give the nature of the charged act and its surrounding circumstances genuine and realistic consideration.

367 It might be objected that the judge's failure to consider the potentially exculpatory matters listed in sub-paragraphs (a) to (d) above does not amount to a failure to take into account a mandatory consideration. As I noted earlier, there is a difference between evidence, factual matters and considerations.[135] Accepting that is so, however, I am of the view that his Honour's failure to consider those matters - or, for that matter, anything other than "the area where [AB] touched [CD]" - is probative of his failure to consider fully the nature and circumstances of the touching, which s 35B(2)(c) required him to do.

368 It will be apparent from my conclusion in this regard that I do not accept the Director's submission that the judge set out the evidence in detail and can accordingly be taken to have had regard to all relevant matters, whether or not they were mentioned in his reasons. On the contrary, the fact that his Honour's reasons were quite detailed on some points, but that he made no mention of the matters identified above, strengthens the inference that his failure to refer to the manner of the waist-touch and to important elements of its surrounding circumstances reflected a failure to consider them.

369 I also accept AB's complaint that the judge's reasons on sexual touching were inadequate. I do so substantially for the same reasons that I found that his Honour's reasons with respect to the cheek-kiss and sexual touching were inadequate.

370 It is unclear from the reasons he gave for his conclusion whether the judge relied on his finding that the touching was, in his view, "unwarranted" or "totally unwarranted" in determining whether the waist-touch was sexual. If he did, then he would thereby have taken into account an irrelevant consideration. Alternatively, as I indicated earlier, his having done so would tend to prove that he applied the wrong test in determining whether the waist-touch was sexual.

371 More generally, it is not clear how the judge reasoned to his conclusion that the waist-touch was sexual. Putting aside the possibility that his Honour considered that his characterisation of the touching as unwarranted justified his conclusion in that respect, merely to assert that the touch was sexual because it was on the waist was manifestly inadequate to expose the path of reasoning which led him to arrive at his conclusion. It was not clear whether, for example, his Honour inferred an inculpatory intent from the location where AB touched CD,[136] or whether he considered that something about the side of a woman's waist makes touching it inherently sexual.

372 Again, I do not accept the Director's submissions to the effect that the reasons were adequate in view of their ex tempore nature and the relatively simple nature of the issue at hand. As I have explained earlier, the reasons were not, in fact, wholly ex tempore. Further, the issue was not simple.

373 In the result, AB's complaint that these reasons were inadequate must be upheld.

374 I turn now to AB's complaint under cover of Ground 1(a) - namely, that the judge's finding in respect of the occurrence of the kiss on the cheek was unreasonable.

375 As we have seen, in cross-examination, CD expressly conceded that, while AB leaned in as if he were about to kiss her, he did not actually do so. In re-examination, however, CD said that she misunderstood counsel's question, gave an explanation for that misunderstanding, and confirmed that there was a kiss.

376 Further, there was AB's account to police to the effect that, while he leant in to kiss CD, he stopped short of actually doing so.

377 It will be remembered that the judge addressed the issue in this way in his reasons:[137]

[15] ... There was an issue in cross-examination where at one point [CD] said that [AB] did not kiss her, but in re-examination this was clarified and she said that he intended - appeared to intend - to want to kiss her on the lips, and that's what she understood the question to be addressed to, but [AB] definitely kissed her on the cheek. ...

[23] I accept the evidence of [CD] in relation to the first charge. ... [AB] misinterpreted the short relationship that he had with [CD] during a short conversation on the tram and took the liberty to kiss her on the cheek. ...

378 AB submitted that, on the whole of the evidence, it was unreasonable or irrational to find that the cheek-kiss actually occurred. Further, he submitted that the judge misstated the evidence, which, in turn, must have infected his finding about the occurrence of the cheek-kiss.

379 The Director argued that the question in cross-examination that provoked CD's answer was compound in nature, and that it in fact comprised two questions:[138]

And in fact, at that point, [1] he leaned in as if he was going to kiss you on the cheek, [2] but didn't in fact kiss you on the cheek. Correct? - - - Yes, yes.

380 It was also submitted that AB's argument did not have adequate regard to CD's evidence in re-examination, which clarified that answer and confirmed that the kiss occurred. Further, the Director argued that counsel did not put to CD that AB did not in fact kiss her.

381 The Director's last point, however, was wrong. As we have seen, counsel expressly put this: "but [he] didn't in fact kiss you on the cheek". While it is true that counsel did not put to CD that no kiss, as opposed to no cheek-kiss, occurred, the fact of the matter is that the allegation with which counsel was faced from CD's evidence-in-chief was that AB kissed her on the cheek.

382 Further, I am not attracted to the argument that the question asked of CD was compound in nature. Yes, it was a compound question. But, standing alone, it is plain that CD's answer addressed what might be thought to be both parts of the question.

383 That said, whether or not it might have been reasonable to doubt CD on this issue, I am not persuaded that it was, on the evidence, irrational of the judge to accept her explanation or to be satisfied beyond reasonable doubt that AB did in fact kiss her cheek.

384 Unlike the questions whether the cheek-kiss or the waist-touch amounted to sexual touching, which each turned on what could be made of undisputed facts, this issue turned on disputed evidence. And, whether or not her explanation in re-examination might have appeared unconvincing to others, CD did in fact confirm that the cheek-kiss occurred.

385 In this context, it is also significant that the judge had the singular benefit of seeing and hearing CD give evidence. AB's argument was essentially an attack on the judge's assessment of CD's credibility. Even if the unreasonableness or irrationality ground were available in the present context, it would be a rare case in which this type of argument could succeed on judicial review. In short, his Honour was entitled to accept CD's account.

386 As to AB's argument that the judge's misstatement of CD's evidence infected his finding about the occurrence of the cheek-kiss, I have already concluded that there was no evidence for his Honour's finding that AB intended - or appeared to intend - to kiss CD on the lips. It is unnecessary for me to consider whether that finding infected his Honour's conclusion about the occurrence of the cheek-kiss.

387 I turn to Grounds 1(c)(i), (ii) and (iii), which, in summary, complain:

a) that the judge applied the wrong test in making the finding that CD was consenting to a kiss on the cheek, including by failing to consider all of the circumstances;

b) that the judge's reasons for making that finding were inadequate; and

388 It will be remembered that, when setting out his findings on the first charge, the judge said that AB "seems to have mistaken the signals advanced by [CD], who was only being polite", and that he "misinterpreted the short relationship that he had with [CD] during a short conversation on the tram". His Honour went on to find this:[139]

[23] ... It was a touching by him of [CD] which she did not consent to and, in my view, he ought to have known that she did not consent to, if only from the fact that she offered her hand to shake hands; a very different action, in my view, from a kiss, either on the lips or on the cheek. ...

389 As we have seen, during the course of discussion on the plea in mitigation, the judge repeated his remarks about AB "misreading the signals".

390 The words employed by the judge for this element of sexual assault ("ought to have known that she did not consent to [the touching]") are different from those in s 40(1)(d) ("[the accused] does not reasonably believe that [the complainant] consents to the touching"). However, for the following reasons, I am not persuaded that this difference amounts to a material error.

391 First, the judge correctly outlined the words of s 40(1)(d) early in his reasons. In those circumstances, and given that whether an accused does not reasonably believe in consent would be a familiar concept to a judge of his Honour's experience, it is likely that the different words employed were either a slip or just a convenient way of describing essentially the same requirement, rather than an error in stating or applying the law.

392 Secondly, while there is arguably a difference between the two, which might sometimes be material, the question whether an accused ought to have known that the complainant did not consent and the question whether he or she did not reasonably believe in consent - both of which involve an objective inquiry - are similar. The one approximates the other. An accused who ought to have known that the complainant was not consenting to an act will usually not have held a reasonable belief in the latter's consent.

393 In so far as AB's complaint that the judge's failure to consider all of the circumstances was probative of his having applied the wrong test for this element is concerned, I do not accept that the judge failed in this respect.[140] This is really a complaint about the judge's reasons, which I shall address below.

395 Despite my conclusion above - namely, that it cannot be said that the judge failed to take into account the circumstances relevant to whether or not AB had a reasonable belief that CD consented to being kissed on the cheek - I do consider that the reasons his Honour gave for the conclusion that AB lacked such a belief are inadequate.

396 Those reasons consisted of the statement that AB ought to have known CD did not consent "if only from the fact that she offered her hand to shake hands; a very different action, in my view, from a kiss, either on the lips or on the cheek". They might also be thought to include his Honour's observation that AB "misread the signals", for, given his conclusion, the judge must be taken to have meant that AB misread them unreasonably.

397 The judge's statement to the effect that a handshake is of a different nature to a cheek-kiss is problematic, for this reason. The expression "if only" implies that the judge considered that there were other reasons why AB's belief in consent was not reasonable. But any such reasons are absent from his Honour's remarks.

398 This point is fortified to the extent that the judge's remark about AB's misreading the signals might be thought to go towards explaining his finding that AB's belief was not reasonably held. Nowhere did his Honour explain which signals he was referring to, how AB interpreted them, or why it was unreasonable for him so to interpret them.

399 This ground must be upheld. Again, I come to this conclusion making due allowance for the fact that his Honour's reasons were given in part ex tempore.

400 AB submitted that, in view of the 35 minutes of friendly chatting, CD's taking his number, her promise to text him and all of the surrounding circumstances, there was no reasonable or rational basis to find that he had no reasonable belief in consent to a mere cheek-kiss.

401 He also submitted that the judge's finding that he mistook "the signals advanced by [CD]" is inconsistent with the finding that he "ought to have known that she did not consent [to the kiss]".

402 The Director submitted that the judge's findings - including that AB ought to have known that the complainant was not consenting - were reasonably open on the evidence and disclose no error of fact or law.

403 Further, she pointed to AB's record of interview, in which he said that he went to kiss CD after she had offered her hand but then did not do so because he "had just met her and maybe that would be too much".

404 The first limb of AB's argument on this ground appeared to invite merits review. The judge's finding that AB lacked a reasonable belief in CD's consent cannot be characterised as illogical or irrational merely because there is evidence pointing towards the opposite conclusion. In view of the surrounding circumstances, including the fact that the two had met only 35 minutes earlier, it was not irrational for the judge to conclude that AB did not reasonably believe that CD was consenting to a cheek-kiss. Further, while the judge made no mention of this evidence, AB's statement in his interview - that he "had just met her and maybe that would be too much" - was capable of supporting the impugned finding.

405 As to the second limb of AB's argument, while it might be possible reasonably to mistake social signals, the proposition that AB mistook the signals advanced by CD unreasonably is not irrational or illogical. And, in the circumstances, in particular in light of the judge's finding that AB ought to have known CD was not consenting, this is what I consider his Honour must have meant. Needless to say, a finding of belief in consent is not necessarily inconsistent with a finding of no reasonable belief in consent.

406 Accordingly, even if I considered this ground were available on an application of this kind, I would reject it.

407 I turn to AB's grounds addressed directly to the finding of guilt of stalking. In summary, Grounds 3(b)(ii), (d) and (e) complain:

a) that it was unreasonable to find the fault element of stalking established; and

b) that the judge's reasons for making that finding were inadequate.

408 While this may not have come strictly within his grounds, AB also argued that there was no evidence that he followed CD onto the tram on 7 June. In the course of argument, I also raised whether there was any evidence for a possible finding that AB had hit the tram on 19 June. Again, the Director addressed these points as if there were grounds of review raising them.

409 In this particular case, in order to address these complaints, it is necessary:

a) first, to identify the findings the judge was required to make in order to be satisfied of guilt in this case;

b) next, to identify those findings his Honour did in fact make; and

c) finally, to consider whether any of those findings lacked evidence or whether the reasons for those findings were inadequate.

410 The required findings turn upon, first, the applicable law and, secondly, the particulars of the charge or the way in which the case was put by the prosecution.

411 Section 21A of the VCA creates the offence of stalking. At the time of the offence alleged in this case, s 21A was, and remains, relevantly, in the following terms:

(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following -

(c) entering or loitering outside or near the victim's ... place of residence or of business or any other place frequented by the victim ... ;

(dc) performing abusive or offensive acts in the presence of the victim;

(g) acting in any other way that could reasonably be expected -

(ii) to arouse apprehension or fear in the victim for his or her own safety ... -

with the intention ... of arousing apprehension or fear in the victim for his or her own safety ... .

(3) For the purposes of this section an offender also has the intention ... to arouse apprehension or fear in the victim for his or her own safety ... if -

(a) the offender knows that engaging in a course of conduct of that kind would be likely to ... arouse such apprehension or fear; or

(b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to ... arouse such apprehension or fear and it actually did have that result.

412 In Berlyn v Brouskos, Nettle J dealt with the meaning of "course of conduct" in s 21A in this way:[141]

[24] The essence of stalking under the American model, and thus I think an essential element of stalking as defined by s 21A of the Crimes Act, is a course of conduct of the kind prescribed in the California Penal Code. And for the reasons already given, that means that there must be a pattern of conduct evidencing a continuity of purpose. Indeed, for those reasons, s 21A is in some respects more limited than the legislation in other Australian States, which speaks only in terms of proscribed conduct on at least two occasions, or on one, as in New South Wales, without the requirement of a course of conduct evidencing a continuity of purpose. It is readily conceivable that conduct on two separate occasions may not always constitute a pattern of conduct evidencing a continuity of purpose and it is unlikely that conduct on only one occasion could constitute a pattern of conduct evidencing a continuity of purpose, unless the conduct were protracted. In order to constitute a pattern of conduct there must be something more, and I think with respect that McDonald J was correct when his Honour said in Gunes, in effect, that the something more is that the conduct must be engaged in on more than one occasion, or it must be protracted.

[25] That is not to suggest that proscribed conduct which is engaged in on more than one occasion or which is protracted will necessarily constitute a course of conduct evidencing a continuity of purpose. It may not, and I do not take McDonald J to have suggested otherwise. Something additional about the conduct or the surrounding circumstances will need to be shown before it can be said of the conduct that it amounts to a pattern of conduct evidencing a continuity of purpose. But I think that for all intents and purposes, it will not be open to say of conduct that it amounts to a course of conduct unless it is engaged in on more than one occasion or unless it is protracted; whatever else may need to be shown.

413 Further, in R v Anders, Redlich JA said this about the elements of stalking:[142]

The offence involves a pattern of conduct evidencing a continuity of purpose in relation to the victim and committed with the proscribed intent.[143] The offender must have the intent to perform the acts associated with and directed towards the victim and which comprise a course of conduct which includes the conduct particularised in s 21A(2) - in this case particular (f) - 'keeping the victim under surveillance'. The offender must also have the subjective intent specified in s 21A(3)(a) or the circumstances must satisfy the objective test set out in s 21(3)(b). The 'course of conduct' must be directed towards a particular victim with that continuing intent.[144]

414 As I understood the submissions, there was no dispute between the Director and AB that in order for stalking to be established in this case:

a) the course of conduct must involve behaviour of the type alleged in the charge on at least two of the four separate occasions on which AB and CD interacted; and

b) those instances of behaviour must be accompanied by the necessary intent, whether it be:

i. the subjective knowledge set out in s 21A(3)(a);[145] or

ii. both the objective "intent" set out in s 21A(3)(b) (i.e., "ought to have understood [etc]") and the further element that the course of conduct "actually did have that result" (i.e., arousal of apprehension or fear in CD for her own safety).

415 It is convenient to reproduce the stalking charge here again. As amended, it was in these terms:

[Charge 3] [AB] at Melbourne between [on or about 6 and 19 June] 2018 did stalk another person namely [CD] by engaging in a course of conduct which included following her, loitering at the tram stop at the intersection of Swanston and Bourke Street where he knew she caught the tram and directing abusive acts towards her by angrily hitting a sign on a tram when she ignored him, with the intention of arousing apprehension or fear in the victim for her own safety.

The way in which the prosecution case on stalking was put

416 Absent an opening or closing address or any other discussion about the matter at the hearing before the County Court, it is difficult to know precisely how the prosecutor put the case on stalking. In those circumstances, perhaps the best that can be done is to look to the particulars of the charge and the evidence.

417 It is notable, though, that it would have been unnecessary to amend the dates of the stalking charge in the way sought unless the prosecutor intended the charge to embrace the period during which all four of the interactions occurred.

The way in which the judge understood the prosecution case on stalking was put

418 It is instructive to turn to the judge's reasons in order to determine how he considered the prosecution put its case on this charge. As we saw earlier:

a) his Honour read out the charge (although he did not read out the inserted words "on or about");

b) after identifying the categories of evidence, he said (when speaking of all three charges) that the prosecution "relies upon all of this evidence to prove its case" and that CD "gave evidence of four separate incidents"; and

[26] The charge of stalking is Charge 3. The prosecution relies upon all of the evidence of [CD] of a series of approaches by [AB] of [CD] over a number of days, commencing on or about 5 or 6 June, and then a second incident which occurred on 7 June. It also relies upon what occurred on 15 June in Swanston Street and later an incident that occurred on 19 June on the tram.

419 Thus, it appears that the judge considered that the prosecution case relied on the behaviour alleged on all four occasions as forming the course of conduct at the heart of the stalking charge.

420 As I understood them, however, both the Director and AB argued that the judge, in his findings, did not rely on either the first or the fourth incident as part of the course of conduct. This was said to be evident from his Honour's reasons.

421 In my view, it is not so clear. On the one hand, as we have seen, the judge commenced his reasons by observing that the prosecution relied on all four "approaches" by AB of CD from 5 to 19 June.

422 On the other, after summarising the events of 7, 15 and 19 June - including, wrongly and without qualification, part of CD's evidence about AB "hitting something" on the tram - his Honour said this:[146]

[30] The charge of stalking alleges that [AB] engaged in a course of conduct which included following [CD], loitering at the tram stop at the intersection of Swanston Street and Bourke Street where he knew [CD] caught the tram and he directed acts against her, abusive acts against her, by angrily hitting the sign on the tram when she ignored him.

[31] I find that [AB] did engage in a course of conduct which included following [CD] and that he, having ascertained that she after work caught the Number 6 tram home, did loiter at or near that tram stop. ...

423 Thus, it was submitted that it is evident from the foregoing reasons that, while the judge reiterated that the charge alleged following, loitering and hitting of the tram (in paragraph [30]), his findings were confined to following and loitering (in paragraph [31]), as there was no further mention of "angrily hitting the sign on the tram" (which was part of the alleged events on the fourth occasion).

424 I am prepared to act on the basis that it is unclear whether the judge, in his findings, relied on the fourth incident, including the hitting of the tram.

425 Yet, while it is not entirely clear, the "following" mentioned in the judge's findings, on its face, is capable of embracing not just the second and third incidents, but also the first and the fourth.

426 On the other hand, apart from following CD off the tram, there does not appear to be any potentially meaningful instance of following on the first occasion. Further, it does not seem that there could be any basis for finding the necessary fault element (whether subjective or objective) associated with that behaviour. Nor could loitering form part of the first incident, as there was no evidence that AB loitered at CD's usual tram stop on that occasion before sitting next to her on the tram.

427 As for the fourth incident, once the hitting of the tram is removed from consideration (which I shall address in more detail shortly), it does not seem that there was any other element of a course of conduct falling within s 21A(2) or the particulars of the charge upon which the prosecution could have relied. First, there was no following. For it will be remembered that AB took the Number 3 tram and then CD boarded the Number 6 tram that followed. While AB then changed trams to the Number 6 at High Street, that was necessary for him to get onto his home route. Further, I do not think that the interaction that he and CD had thereafter on the tram, such as it was, could be regarded as following. As for loitering, while the evidence is that the two saw each other from afar at the city tram stop, it is difficult to conclude that AB was there for any purpose connected to CD when it was he who took the Number 3 tram first and CD who followed by taking the Number 6 immediately behind it.

428 All of that said, and despite the parties' joint submission to the contrary effect, it remains unclear whether his Honour found that AB loitered at the city tram stop and/or followed CD on the first and fourth occasions.

Second incident: AB did not follow CD onto the tram

429 I turn now to consider whether there are aspects of the judge's findings for which there was no evidence.

430 It will be remembered that, in the summary given earlier in this judgment, I noted that the judge found that, during their interaction on the second occasion, despite CD telling him not to follow her, AB did just that - by following her onto the tram she took shortly thereafter. However, the fact of the matter is that CD's own evidence was incapable of proving that AB had boarded the same tram at all. Instead, she accepted that, after her remarks to AB, the two went their separate ways.[147]

431 The Director conceded that there was no evidence for the judge's finding. In her submission, however, this was not a vitiating error, because, absent the error, stalking still would have been proved.

432 I reject that submission. I consider that the judge's finding is capable of amounting both to jurisdictional error and error of law on the face of the record.

433 A factual finding for which there is an absence of evidence will amount to jurisdictional error where the finding is a "critical step" in the decision-maker's path of reasoning.[148] The judge's finding that AB followed CD onto the tram on the second occasion was a finding that part of the conduct element of the offence of which he was charged was made out. Not only was the conduct that his Honour found AB to have engaged in constitutive of the offence of which he was found guilty, but it was also relevant to the fault element of that offence more generally - plainly, the more frequently AB followed or engaged in other identified conduct vis-à-vis CD, the more likely it is that he ought to have understood that it would be likely to arouse apprehension or fear in her. I consider that the judge's finding was critical to his conclusion.

434 The judge's finding also constituted an error of law on the face of the record. It is uncontroversial that a decision-maker who makes a factual finding for which there is no evidence commits an error of law.[149] What is more controversial is whether the judge's error in this case appeared on the face of the record. While the judge's reasons form part of the record by virtue of s 10 of the Administrative Law Act 1978 (Vic), Kaye J has warned that s 10 "does not, of itself, have the effect of incorporating, into the record, the evidence before the lower court".[150] But the qualification his Honour added is important. While a court exercising its supervisory jurisdiction is not permitted to "scour" the evidence and exhibits before a lower court in search of error, evidence may form part of the record if it is specifically incorporated into the reasons.[151]

435 It will be recalled that, when examined in chief about the events of 7 June, and specifically in relation to the question whether AB had boarded the same tram as her after she told him, in effect, that she was not interested in having any further contact with him, CD appeared to imply that he had. But then the following exchange ensued:

Did you see [AB] on the tram - on any tram again on 7 June? - - - I can't recall, sorry.

That's okay. Can you recall an occasion where you got on the tram and you rang your flatmate, [GH]? - - - Yes, yes.

Was this on 7 June? - - - Yes, I recall now. Yes, it was.

Why did you ring [GH]? - - - After I told him, [AB], to, like, not be near me, I called [GH] just because I was feeling unsafe and thought, yes -

Where were you when you were talking to [GH]? - - - I think I was still at the - I'm unsure sorry.

So, on 7 June 2018, as best you recall, after the conversation you had with him, did you see where [AB] went? - - - I can't recall, sorry.

436 Then, in cross-examination, the following proposition was put to CD:

And you moved away from the area as well and you never saw him - there was no other interaction between the two of you that night?

437 Her response was "Yes, yes." Following that, CD agreed with the proposition that she and AB "just decided to go [their] separate ways" after she told him she was not interested in texting him.

438 The relevant finding was expressed by the judge in the following terms. In the course of summarising CD's evidence in relation to the events of 7 June, the relevant part of which I have just reproduced, the judge said:

She saw [AB] again. She was concerned about [AB] following her. She recalls she got on the tram and she phoned her flatmate ... and told her that a male that she had previously seen was on the tram.

439 His Honour continued summarising CD's and EF's evidence in relation to 15 and 19 June and then immediately went on to find that AB "did engage in a course of conduct which included following [CD]". I consider that CD's evidence about the events of 7 June was incorporated into the judge's reasons and therefore formed part of the record.

440 A legal error will only go to jurisdiction if it is material. Similarly, a court will grant relief in respect of an error of law on the face of the record only where it is material. Contrary to the Director's submission, it is simply not possible to say that, had the judge not found that AB followed CD onto the tram on the second occasion, he would still have found Charge 3 proved. It would seem to follow a fortiori from my finding that the judge's error was critical that it also deprived AB of the possibility of a successful outcome. Materiality requires only that the judge's decision might have been different had the error not been made.[152]

441 I should add this. I did not accept the parties' joint submission that it was clear that the judge made no findings of stalking in relation to the first and fourth occasions, and I reach my conclusions on materiality and criticality on that basis. I would have reached those conclusions more readily had I accepted the parties' joint submission.

442 The judge also summarised the evidence in a way that suggested that he may have found that AB's final interaction with CD involved him "hitting something in a tram".[153]

443 The Director conceded that, when regard is had to CD's evidence in cross-examination and re-examination, there was no evidence of that alleged incident. However, I consider that it is not possible to tell whether the judge made a finding that AB had hit something on the tram, or whether he was only recounting CD's evidence-in-chief on the issue (but without her retraction in cross-examination and re-examination).

Fear or apprehension as part of the objective fault element

444 AB submitted that the judge erred by making no finding that the course of conduct alleged against him actually did arouse apprehension or fear in CD for her own safety.

445 Further, he submitted that the evidence was not capable rationally of allowing such a finding in any event, or, for that matter, a finding that he ought to have been aware of any such fear or apprehension.

446 That an accused's course of conduct did in fact arouse apprehension or fear in the complainant for his or her own safety is an additional element of proof necessary when the objective fault element in s 21A(3)(b) is relied on. In particular, as we have seen, that paragraph provides that:[154]

the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to ... arouse such apprehension or fear and it actually did have that result.

447 The judge said this when concluding his reasons on stalking:[155]

[32] He knew, or ought to have understood, that his actions would be likely to frighten [CD] or make her feel apprehensive about her own safety, and he ought to have known that his unwarranted actions in pursuing [CD] would have that effect.

448 I should dispose of another matter first. As can be seen, the judge used the word "knew" in the foregoing passage. There was no evidence that AB knew that his actions would be likely to frighten CD or make her feel apprehensive about her own safety. In any event, such a finding would have been inconsistent with his Honour's finding that AB mistook the signals advanced by CD. Thus, I regard the judge's use of the word "knew" as a mere slip. Instead, the only fault element on which the judge could sensibly have relied in this case was the objective state of mind specified in s 21A(3)(b).

449 At the end of the sentence in the reasons extracted above, his Honour appears to have picked up what might be thought to be the substance of the last clause of s 21A(3)(b) - by his use of the words "would have that effect". However, nowhere in his reasons, apart from his recitation of the provision at the outset, did he expressly mention the terms of that provision. Nor, as I read those reasons, did he state explicitly that he found that AB's course of conduct involved in that incident did in fact arouse apprehension or fear in CD for her own safety.

450 All of that said, while it is unclear, I am not persuaded that the judge failed to make the necessary finding. Instead, his use of the words "he ought to have known that his unwarranted actions in pursuing [CD] would have that effect",[156] in context, are capable of being read as an attempt, albeit infelicitously expressed, to state that the course of conduct in which AB engaged did in fact have the result of arousing apprehension or fear in CD for her own safety. In this regard, it is also relevant that his Honour said, when outlining the evidence of the third incident, that CD "said she felt violated, uncomfortable when the [waist-touch] happened, and she then spoke to [EF] and told him that that was the man that had been stalking her".

451 It follows that this limb of the complaint fails.

452 I also reject AB's further submissions that the evidence was not capable reasonably or rationally of allowing either a finding that the relevant parts of the course of conduct did in fact arouse apprehension or fear in CD for her own safety or a finding that AB ought to have been aware of any such fear or apprehension.

453 It was open to find that, on the second occasion, AB loitered at the tram stop and followed CD to the point where she sat down near the bank. CD said that, when she first noticed AB, she deferred taking the next tram in the hope that he would take it and then she could take another. She also moved to the steps near the bank so that AB would not see her. When he came over to her, she was hoping that, by bluntly telling him that she had met him on a tram and that she had a boyfriend, this would "stop his intentions". Given that evidence and the evidence of what had gone before on the first occasion, including her feelings of shock and being unsafe, I think it was open, perhaps only just, to find that CD experienced apprehension for her own safety as a result of the loitering and the more limited following on the second occasion.

454 As for the third incident, I think it was open to find that AB must have loitered near the tram stop and followed CD to the shopfront. Further, it was open to find that that conduct, when combined with the waist-touch and her feelings about it (which, as we have seen, the judge included in his summary of the evidence of stalking), resulted in CD experiencing apprehension for her own safety.

455 Again, it is thin, and all the more so given the judge's finding that AB mistook the signals advanced by CD, but it was also open to find that AB ought to have understood that engaging in the behaviour just discussed in the second and third incidents would be likely to arouse such apprehension or fear.

456 This too was a complaint that a finding of fact was unreasonable or irrational rather than, say, a complaint of no evidence. Given the foregoing reasons, even if I were prepared to entertain such a complaint, I would reject it.

457 I am persuaded, however, that the judge's reasons on stalking were inadequate, in the following respects.

458 First, I think it is at least unclear whether his Honour found proven the allegation that AB hit the tram during the fourth interaction, or that he relied on any such finding, in concluding that stalking was established.

459 Secondly, given the way in which the judge described the prosecution case on stalking - as relying on all four incidents and as comprising loitering, following and hitting the tram - but referred only to loitering and following in his findings, without reference to specific occasions, it is quite unclear on which of the alleged instances of conduct his Honour's finding of guilt was based.

460 I reject the Director's submission that the judge's reasons were adequate to reveal his path of reasoning to his conclusion that the stalking charge was proved.

461 For the reasons I have given, they were not adequate to achieve this requirement at all. An accused must not be left to guess at which parts of the evidence the judge has acted on in reaching his or her ultimate conclusion of guilt. Nor may an accused be left in the dark about which alleged instances of conduct his or her conviction is founded upon. Reasons which suffer from this defect have the potential to leave the accused with a justified sense of grievance that the judge has not reasoned towards guilt in accordance with the law and the evidence, yet with an inability to ascertain precisely why that is so. That, at least in part, is the situation that faces AB with these reasons.

463 Under cover of Grounds 4(a)(ii) and (b)(ii), AB complained:

a) that it was unreasonable to find that CD was "wont to understate the circumstances in which she found herself"; and

b) that the judge failed to provide adequate reasons for that finding.

464 The impugned findings and reasons are located in passages of the judge's reasons that I extracted earlier, when setting out most of those reasons en bloc. Nevertheless, it is convenient to reproduce them again here:[157]

[21] [CD], in my view, was an impressive witness. She was wont to understate the circumstances in which she found herself. She held back in complaining to police. I thought she made appropriate and relevant concessions during the course of her evidence, both in-chief and in cross-examination.

465 AB submitted that, far from being "wont to understate [things]", CD was shown to have lied, or at least to have given inconsistent, exaggerated and incredible accounts, and to have been unsure, unable to recall and unreliable. He also attacked the judge's related findings - namely, that CD was "an impressive witness" and that she "made appropriate and relevant concessions" in evidence.

466 In support of this submission, AB pointed to several parts of CD's evidence, including the following:

a) As we have seen, while CD conceded in cross-examination that AB did not actually kiss her, she went on, in re-examination, to give (what was submitted to be) an implausible excuse for her concession.

b) In evidence-in-chief, CD said that, when they got off the tram, there was discussion about her taking AB's number, whereas, in cross-examination, she accepted that, at that point, "the conversation [was] still about [her] taking his mobile phone number",[158] which, in context, implied that she accepted that it had been happening while they were on the tram. Further, she was asked, "Prior to that, though, he had been offering you his phone number?"; but her answer was, "I don't recall that, but if that's how it happened - yes, yes, no comment. I don't know." Yet, only moments before, CD accepted that, in the Magistrates' Court, she had agreed that AB had offered his phone number at effectively the same time as he had asked her out, which had occurred on the tram.

c) In evidence-in-chief, CD said that AB put his number into her phone (expressly in answer to the judge's question), whereas, in cross-examination, she conceded that she did this herself.

d) CD gave evidence of being touched on "the like, hip, lower hip, pelvic area". This, AB submitted, was at least an exaggeration - the opposite of being wont to understate - as the CCTV showed clearly that she was touched on the right side of her waist.

e) As we have seen, in evidence-in-chief, CD implied that she saw AB hit a sign on the tram. However, in cross-examination, she conceded that, while she had told police that she saw him do this and had made a written statement confirming this, she had seen no such thing. She also confirmed in re-examination that her concession in cross-examination was correct.

467 The Director submitted that AB's contentions that CD lacked credibility and reliability were simply not made out. In her submission, the judge had the significant benefit of seeing and hearing CD during her evidence. In those circumstances, his Honour was entitled to reach the positive conclusions he did about CD's evidence.

468 I think that the better characterisation of the judge's positive finding about CD (i.e., that "she was wont to understate the circumstances in which she found herself") is that it was not so much about understatement versus exaggeration or truth versus lies but a finding that, given the concerns CD expressed in evidence about AB's repeated presence, she showed some restraint in delaying her report to police. So much is apparent from the very next sentence, where his Honour said that CD "held back in complaining to police".

469 The judge's related findings - namely, that CD was "an impressive witness" and that she "made appropriate and relevant concessions" in evidence - more squarely suggest that his Honour accepted that CD was credible and reliable. But, for the following reasons, I am not persuaded that it was irrational for the judge to make these findings.

470 First, each point made by AB is capable of being answered by the limitations of human observation and memory, and by the stress that is often involved in giving evidence. The relevant events occurred in June 2018. The appeal was heard over two years later, in September 2020. Experience tells that, sometimes, some witnesses simply are not as observant as others. Equally, many forget detail over time or find it hard to be composed and clear-headed when giving evidence.

471 Secondly, some witnesses do make mistakes or become confused, but are honest enough to admit their errors when they appreciate them. CD's concessions to being unsure about various matters are capable of being viewed as falling into this category.

472 Finally, it must be remembered that, unlike the police interview, which was before both the judge and this Court in audio-visual form, only the judge had the benefit of seeing and hearing CD give evidence (albeit via WebEx). Given that singular advantage, it would be a rare case in which this Court, on judicial review, would be persuaded that a judge's findings about a witness's credibility and reliability, which necessarily are informed in part by matters of impression, were in excess of jurisdiction.[159]

473 As it happens, I am not so persuaded. Indeed, while the considerations to which AB has pointed may have caused others to make less favourable findings about CD as a witness and to doubt disputed aspects of her evidence, I think it was open to the judge to find that she was an "impressive" witness, that she "was wont to understate the circumstances in which she found herself", and that she "made appropriate and relevant concessions". In short, I am not persuaded that these findings were irrational.

474 It follows that, even if this ground were available, I would reject it.

475 AB also submitted that the judge's reasons were inadequate to explain his path of reasoning towards the impugned conclusions. He relied on a passage in the judgment of Ginnane J in Grabski v Beier,[160] where his Honour said this:

Douglass v The Queen[161] suggests that in criminal trials conducted by judge alone, where credibility is in issue, reasons may be insufficient if they simply state that the complainants are believed over the accused.

476 In AB's submission, instead of addressing the numerous inconsistencies, exaggerations and flaws in CD's evidence, the judge misleadingly described her as making "appropriate and relevant concessions during the course of her evidence". This, in his submission, was inadequate.

477 The Director submitted that the judge's reasons were adequate to explain his path to the impugned findings in what was a relatively straightforward case on credibility. The present case was unlike Grabski v Beier, which involved a finding that the complainants were credible in circumstances involving contradictory and implausible evidence, and the absence of any reference to the good character evidence of the accused. In the Director's submission, the reasons given did not infringe the requirements established by the High Court in Douglass.

478 A judge, when giving reasons, need not address every possible argument or piece of evidence suggesting inconsistency or the like in a witness's evidence. There is still room for a degree of impression and shorthand findings. I think that, when read as a whole, the judge's reasons were clear enough in explaining why he took a positive view of CD as a witness.

479 While I agree that it would have been preferable if the judge, in making any finding about CD as a witness, or at some other point in his reasons, had addressed the various issues that AB identified in respect of the impugned findings, I am not persuaded that his reasons were inadequate. Accordingly, I reject this ground too.

480 Ground 4(c) complains that the judge made unreasonable findings when assessing the credibility of AB, including by finding that, during his police interview, AB "seemed anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events"; that he was "evasive"; and that his response was designed to "besmirch" CD.

481 AB also complained that the judge erred in failing to consider his exculpatory responses in the police interview.

482 As we have seen, immediately prior to stating his conclusions on Charge 1 (i.e., sexual assault arising out of the cheek-kiss incident), the judge said this:

[22] [AB], on the other hand, when interviewed went out of his way to accuse [CD] of conjuring up a case against him and that it was a pack of lies. [AB], when interviewed, was most cautious, and I don't hold that against him, however, he seemed anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events.

483 Further, immediately following his conclusions on Charge 2 (i.e., sexual assault arising out of the waist-touch incident), the judge made these remarks:

[25] [AB's] answer to this in the record of interview is not to be accepted by me. His answers, in my view, were evasive and he did not want to deal with the real issue when confronted by the image and the video evidence. His answer was to allege that he had been set up by [AB], which, in my judgment, was an attempt to besmirch the character and credit of [CD] and showed little insight into what he had actually done. I reject what he said in his record of interview absolutely.

484 His Honour did not make any references to AB's answers in his interview vis-à-vis Charge 3 (stalking).

485 AB submitted the judge's findings were unreasonable or without any evidentiary basis. He submitted that it was unreasonable for his Honour to find that he was "anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events". Instead, he submitted that it is plain that it was he who was urging police to get the CCTV to show his innocence. He pointed out that he told police, among other things, that the CCTV would show:

a) that there was no case of anything like sexual assault;

b) that he did not follow CD to her home on 5 June;

c) that he did not follow CD on 7 June and that they took different trams;

e) that he regularly used the tram stop in the city, well before he met CD.

486 Further, AB submitted that he engaged with the police and answered the questions asked of him in the interview. The only occasion on which he asked whether police had CCTV footage, and whether he could view it, was in respect of 15 June. But it was obvious that the police in the interview had with them a screenshot of the moment AB touched CD's waist on that date, which they showed him anyway.

487 Amici curiae submitted that part of the sting in the judge's reasons is that he appears to have used AB's answers against him as if they amounted to incriminating conduct or something similar. It was said that the reasons read as if the judge was intending to convey that only a guilty person would ask about CCTV footage before answering questions. Further, it was submitted that the fact that an accused asks police during an interview about the nature and type of evidence said to support the allegations against him "is not a matter which [could] or should weigh against [his] credibility or character".

488 The Director submitted that the judge's findings were reasonably open on the evidence. It was said that, when the impugned passages in the reasons are read against the interview as a whole, it can be seen that there was no error.

489 In response to amici curiae's submission, the Director submitted that, while the judge said that AB was "most cautious", he added that he did not "hold that against him". I accept that, in view of the latter remark, and the failure to state explicitly that he was doing so, it is unlikely that his Honour employed incriminating conduct reasoning or the like.

490 I am, however, persuaded that the judge made unreasonable findings in respect of AB's responses in his police interview.

491 In my view, there was no rational basis for the finding that AB was "anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events". On the contrary, as AB submitted, far from showing concern about CCTV footage that might inculpate him, it was he who suggested, repeatedly, that police might obtain the footage as it would exculpate him. He even gave the police specific examples of how he believed the CCTV would support his account.

492 Contrary to the judge's findings, there was no rational basis for concluding that AB was "evasive" or that he "did not want to deal with the real issue when confronted by the image and video evidence". Nor was it reasonable to find that AB was "most cautious". On my observation of the interview, AB responded to each of the allegations put to him in a forthright and comprehensive fashion.

493 It is, however, apparent that AB was thrown somewhat when the police conveyed that CD had said that the first incident occurred on 6 June 2018, the day before the second incident on 7 June. As we have seen, this was wrong - the first incident was on 5 June, two days before the second incident. It is also clear that AB was aghast at the allegation that he had followed her to her home (which allegation was not the subject of any evidence by CD in the County Court, and which he strenuously denied). Further still, AB appeared shocked to be told that CD's view of their interactions was quite different from what he had perceived. Yet the latter impression is also consistent with the judge's finding that AB mistook the signals advanced by CD, which finding his Honour seems to have forgotten when assessing the interview. It is against this background that AB asserted that CD must be trying to "fake" or "trap" him. In my view, it was unreasonable to conclude from these responses that he was attempting to "besmirch the character and credit of [CD]". AB, who was clearly taken aback, was simply attempting to defend himself.

494 That said, given the approach I have taken in this case to the ground alleging unreasonable findings, I am reluctant to uphold this part of the ground. I hesitate in saying so for this reason. Some of the judge's impugned findings appear to have no basis in the content of AB's responses. For example, as I have said, it was AB who was urging police to obtain CCTV; I do not think it can be said that "he did not want to deal with the real issue when confronted by the image and video evidence". If that is correct, some of those findings would be bad in law. On the other hand, it seems that most, and perhaps all, of the impugned findings were influenced by his Honour's impression of AB's demeanour and the tenor of at least some of his responses. While I, like the judge, have had the benefit of seeing and hearing the audio-visual recording of the interview, it might be said that reasonable minds could differ on what to make of AB's approach when answering questions. For that reason, I would not uphold this aspect of the ground, even if it were available.

495 However, I can and do uphold the second aspect of AB's complaint - namely, that the judge erred in failing to consider at least some of his exculpatory responses in the police interview.[162]

496 In my view, the judge mischaracterised AB's responses to the allegations. Further, he failed to identify several of the key parts of AB's account. Consider the following.

497 In respect of the first charge of sexual assault, after setting out (part of) CD's evidence on the events of 5 June 2018, his Honour said that AB "denied these actions alleged against him". But, as we have seen, while AB denied that he went through with the kiss, he accepted, in the main, the account of the lead-up events put to him, including that he went to kiss CD on the cheek. Yet the judge made no attempt to make these important distinctions. Thus, to say that AB "denied these actions alleged against him" was a mischaracterisation of his response. At most, given that the judge accepted CD's evidence (in re-examination) that the kiss occurred, this might be taken as a rejection of AB's denial of actually going through with the cheek-kiss.

498 But, as we have seen, AB said a good deal more that was relevant to the first charge. For example, it will be remembered that AB said that he leant in to kiss CD on the cheek "as a gesture ... of a good way, not like it's a man and a woman". Yet the judge made no mention of this evidence. Whatever else might be concluded about the character and circumstances of the cheek-kiss, this evidence was relevant to whether the kiss amounted to sexual touching and to whether AB might have reasonably believed that CD consented to the touching.

499 On the second charge of sexual assault, after setting out his findings and concluding that the charge was proved, the judge said that AB's "answer to this in the record of interview is not to be accepted by me", and that he "reject[ed] what [AB] said in his record of interview absolutely". But, again, AB accepted the substance of the allegations concerning the waist-touch, including the surrounding circumstances. However, the judge failed to refer to AB's explanation that, when he touched CD's waist, he did so "in a very friendly and nice way to ... show her that [he was] there". As I said earlier in these reasons, this explanation was capable of placing this instance of touching in an innocuous light, at least where the element of sexual touching is concerned.

500 When addressing the stalking charge, the judge made no mention at all of AB's responses in the interview, let alone any of those responses involving a denial of particular factual allegations that went (or may have gone) in proof of that charge. Thus, his Honour made no mention of either AB's denial that he followed CD onto the tram on 7 June or his denial that he hit the tram on 19 June. As we have seen, the judge also failed to mention CD's evidence on these issues in cross-examination and re-examination, where she effectively retracted these allegations. That his Honour made these omissions when summarising CD's evidence makes it all the more likely that he paid no regard to these responses by AB.

501 In my view, even if the judge was entitled to make the adverse findings discussed under the first limb of this ground, it was still incumbent on his Honour to consider AB's responses identified above. Much of what AB said in his interview had to be accepted (or could not reasonably be excluded) because those responses were consistent with other evidence, or became so after cross-examination and re-examination of CD and the evidence of Detective Paulet.[163] In that context, it was particularly important to consider all of AB's responses, and especially those that went to factual issues critical to the elements of the offences charged (such as whether he followed CD onto the tram on 7 June and whether he hit the tram on 19 June) or were the only direct evidence on AB's state of mind when he was engaging in the cheek-kiss and the waist-touch.

502 A trier of fact need not be convinced of an accused's response before considering it in a criminal matter. On the contrary, an issue must not be found against an accused if his or her account gives rise to a reasonable doubt.[164] Thus, that account must be considered along with all of the other evidence when engaging in the fact-finding task and determining whether the element in issue is established beyond reasonable doubt. In the course of that process, the relevant aspect of the accused's account may be rejected, but it must be considered.

503 However, in my view, it is apparent, from the judge's reasons, including his failure to refer to AB's particular responses identified above, that his Honour did not engage in this task at all on any of those matters in issue.

504 It follows that I do not accept the Director's submission that, because the judge set out much of the evidence in detail, he can be taken to have had regard to all relevant matters, whether or not they were mentioned in his reasons.

505 Accordingly, I am satisfied that this aspect of AB's complaint is made good. Further, this failure affects all three findings of guilt, as the judge failed to consider AB's responses that went to each of the three charges. In my view, the judge thereby failed to give any, or any genuine and realistic, consideration to matters central to the charges. The error is plainly material, as the decisions on those charges might have been different had this error not been made.

506 Alternatively, if I am wrong in concluding positively that his Honour failed to have regard to these particular responses in AB's interview, it is at least unclear from his reasons whether he did err in this way. In those circumstances, his Honour's reasons are inadequate, which amounts to an error of law on the face of the record.

507 Under cover of Ground 4(e), AB contended that the judge was biased or that a reasonable apprehension of bias attended his decisions.

508 AB submitted that bias or an apprehension of bias was demonstrated in three ways:

a) First, he pointed to questions the judge asked of CD, in evidence-in-chief, that went to identification. While identification was not in issue, this questioning, submitted AB, showed that the judge "intervened to fill gaps in the prosecution case".

b) Secondly, AB submitted that the judge made "absurd findings".

c) Thirdly, he submitted that his Honour's reasons "were unfair and inaccurate". By way of illustration, AB pointed to some of the findings and reasons challenged under other grounds, as well as the judge's failure to refer to other evidence that, in his submission, showed CD to lack credibility and reliability. (These findings and reasons, and AB's particular criticisms of them, need not be rehearsed again here.)

509 AB submitted that these matters might cause a lay observer to apprehend that "the judge may not have been entirely impartial".

510 While his ground alleged actual bias as well, AB did not appear to put any matters in support of that complaint other than those said to go to apprehended bias.

511 The Director submitted that there was nothing improper in the judge's questions of CD. Instead of filling gaps in the prosecution case, his Honour appeared simply to be asking questions in order to clarify CD's evidence about matters that, as the trier of fact, he thought he might have to resolve. The Director also submitted that the impugned findings were reasonably open. There was, in the Director's submission, no basis for finding either actual bias or apprehended bias.

512 I do not accept that the judge's questions of CD were designed to fill any perceived gaps in the prosecution case. The parties agreed that it appeared that, at the time he asked the impugned questions, his Honour failed to realise that identification was not in issue. So do I. But, on my reading of the transcript, he did no more than ask a few questions to clarify part of CD's account about which she appeared to be uncertain.

513 Further, defence counsel took no objection to these questions. Nor did he make any application for the judge to disqualify himself based on these questions or any others. That AB's counsel, imbued with the atmosphere of the hearing, took neither course only adds to the view that there was no suggestion of bias and no basis for finding apprehended bias.

514 In the main, AB's submissions under this ground appeared to proceed on the premise that, just because the judge made findings or gave reasons that were (or were argued to be) unreasonable or inadequate, bias or apprehended bias was established. But the premise is misplaced. If a judge makes findings or gives reasons that involve, or might involve, error of some kind, that does not, of itself, either establish bias or give rise to a reasonable apprehension of bias. Proof of either contention requires much more than that.

515 Establishing a claim of apprehended bias requires the party alleging it, first, to identify the factor which it is hypothesised might have caused the decision to be made otherwise than in accordance with its merits and, second, to articulate how that factor might have caused that deviation.[165] AB did not manage to point to any such factor, much less to articulate how it might have led the judge to make his decision otherwise than in accordance with the factual and legal merits of the case. To conclude that a decision is vitiated by apprehended bias on the basis that it is unreasonable, without identifying what it is that is said might have given rise to that bias, would be to speculate.

516 Nor am I persuaded that a fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the issues before him. There was nothing in his Honour's conduct of the case that gave any cause for an apprehension of partiality. Nor, necessarily, do I consider that there is any basis for AB's claim that the judge was in fact biased.[166] In the result, this ground must be rejected.

517 I should say that I think it is a great pity that neither party raised, or that the judge himself did not raise, many of the issues that have featured in the other grounds. For example, had the prosecution case on sexual touching been articulated in an opening, a closing or in discussion, and had s 35B(2) been raised and discussed, I think it is all but inevitable that the judge would have realised that there was no case on sexual touching and then dismissed the sexual assault charges in consequence. Equally, had the prosecution verbally articulated its case on stalking, the uncertainty that has bedevilled the judge's findings on that charge is unlikely to have occurred.

Application succeeds; findings of guilt and sentence quashed

518 Given the grounds that I have upheld, AB's application for judicial review must succeed. I will make an order in the nature of certiorari quashing each finding of guilt and the aggregate sentence imposed.

Submissions on consequential orders on stalking

519 The parties agreed that, as there was still an arguable case on stalking, it would be appropriate to make an order in the nature of mandamus in respect of the stalking charge, so that it would be remitted to the County Court for rehearing. I also agree.[167]

Submissions on consequential orders on sexual assault

520 As I understood them, the parties and amici curiae also submitted that, were I satisfied that the evidence before the County Court was incapable of establishing either charge of sexual assault, then there should be no further hearing in respect of those charges. Instead, it was agreed that it would be appropriate to make an order in the nature of prohibition in respect of any such rehearing.

Further orders, if any, on sexual assault charges

521 For the reasons I have given above, I am satisfied that the evidence was incapable of warranting a finding or conclusion that either instance of touching was sexual. On reflection, however, I am not so sure that prohibition would be an appropriate consequential form of relief.

522 That said, given that it follows from what I have held that the only order open to the County Court on the sexual assault charges was to dismiss them, I do not think it would be appropriate to remit the matter for rehearing on those charges. Further, I consider that it would be unfair if AB were made to face those charges a third time.

523 There was no suggestion by the Director on the application in this Court that the prosecution were in any way wrongly denied an opportunity to prosecute the case on the sexual assault charges in the County Court. Nor was there any suggestion that the prosecution should be allowed to run a new case based on fresh or new evidence.

524 If this were an appeal to the Court of Appeal from the verdicts of a jury (or those of a judge sitting alone) on indictment, the conclusions I have reached on sexual touching would dictate that the appropriate further orders would be to direct verdicts and judgments of acquittal on the charges of sexual assault.[168]

525 Similarly, if this were an appeal from the findings of guilt of a magistrate, on a question of law, to this Court, the appropriate order would be to direct that the sexual assault charges be dismissed.[169]

526 It may seem odd that this Court, on the present application, cannot simply substitute or make orders dismissing the sexual assault charges. But that is the reality. Judicial review is a supervisory jurisdiction. In exercising that jurisdiction, this Court does not have the power to make orders of that type.

527 It seems that there may be at least four options instead. The first is simply to make no further order.[170] In that event, when the fact that all three findings of guilt have been quashed is coupled with these reasons and the remittal of the stalking charge, but the absence of an equivalent remittal order on the sexual assault charges, it would be a clear signal to all that that is the end of the latter charges. But it would not amount to the dismissals that ought to have been ordered in the County Court.

528 A second option would be in addition to the first. It would be for the Director and Victoria Police to undertake not to prosecute the sexual assault charges any further. This would ensure that AB would not be put in jeopardy of revival of the charges or of any possible findings of guilt or penalty. However, he would still be without orders dismissing the charges.

529 A third option is to make an order in the nature of prohibition, in line with the submissions of the parties and amici curiae. This would mean that the sexual assault charges could not be prosecuted again. Assuming prohibition is indeed available at law in the present circumstances, about which (despite the submissions of the parties) I am not entirely certain, this would give AB the added comfort that, by order of this Court, the sexual assault charges could not be revived. There would also be these reasons explaining that there was no case on sexual assault. Still, however, there would be no dismissals.

530 A fourth option may be this. Assuming these orders are available at law, about which I am not certain, this Court could remit the sexual assault charges to the County Court with a direction that they be dismissed, as they should have been in the first place. Presumably, dismissals would be ordered on the sexual assault charges by the County Court at the outset of the remitted proceedings on all three charges, before any evidence were called. If need be, the Director could, in conformity with the remittal, announce that she leads no evidence on the sexual assault charges. Either way, the County Court could then dismiss those charges and commence hearing the stalking charge, if it were still pursued. This option would achieve what the law required originally in the County Court - namely, dismissal of the sexual assault charges.

531 In light of the foregoing, and despite the previous submissions of the parties and amici curiae, I will refrain from making an order in the nature of prohibition in respect of the sexual assault charges, at least for the moment. Instead, before finally deciding which further orders, if any, to make on those charges, I wish to receive further submissions from the parties, and amici curiae, on whether the third and fourth options are available at law and, in any event, on the preferable course to take. The Director will be asked whether she and Victoria Police are prepared to give the undertakings spoken of in the second option, and the parties and amici curiae will be asked for submissions on whether that possible course may be appropriate.

532 AB and counsel are to liaise with my chambers to arrange a date for further oral submissions on these issues or, if an oral hearing is thought unnecessary, the provision of written submissions only.

533 While allowing for the possibility that I may make further orders at a later time, I shall make the following orders now:

1. The findings of guilt on Charge 1 (sexual assault), Charge 2 (sexual assault) and Charge 3 (stalking), and the aggregate sentence imposed on those findings of guilt, in the County Court on 29 September 2020, are quashed.

2. The County Court, differently constituted, is directed to rehear and determine Charge 3 (stalking) in accordance with law and this Court's reasons.

3. The Court will otherwise adjourn this application to hear further submissions on:

a) whether to make, and, if so, the nature and form of, any further orders in respect of Charge 1 (sexual assault) and Charge 2 (sexual assault); and

534 As AB was unrepresented in this Court, he did not incur the costs of solicitors or counsel. Nor did he submit that any costs order should be made in his favour. On the other hand, he may have had to pay administrative costs in bringing this application. If so, then I shall also hear the parties on those costs.

535 AB was, however, legally represented in the County Court and the Magistrates' Court. Ordinarily, if an accused successfully appealed a conviction from the Magistrates' Court to the County Court, he or she would receive his or her costs of the appeal, and also those in the Magistrates' Court. I shall hear the parties on whether I have the power to make orders of that kind in this Court on judicial review and, if I do, whether I should make any such orders or leave their consideration to the County Court upon the remittal of the stalking charge.

536 This, I think, is also a case in which amici curiae might consider making an application for costs in this Court, if they wish to do so.[171]

537 Any submissions on costs may be made at the same time (or in the same written submissions) as those made on the options for further orders on the sexual assault charges.

I certify that this and the 135 preceding pages are a true copy of the reasons for judgment of the Honourable Justice Croucher of the Supreme Court of Victoria delivered on 27 July 2022 and revised on 28 July 2022.

[1] By a pseudonym order, the plaintiff is designated AB, and the complainant, CD.

[2] Contrary to s 40(1) and s 21A(1), respectively, of the Crimes Act 1958 (Vic). See below.

[3] In relation to the cheek-kiss, AB also challenges the judge's findings and reasons in respect of the first and third elements of the offence. See below.

[4] Section 35B(1) of the VCA also sets out how "[t]ouching may be done". See below.

[5] See the Explanatory Memorandum (at p 11) to the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic) ("the 2014 Amending Bill"), which became the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), which repealed the provision on indecent assault and introduced the sexual assault provisions into the Crimes Act 1958 (Vic). See below.

[6] It is also a preferable course in the event of any appeal from my orders.

[7] Although, to an Australian ear, or at least mine, AB's heavy accent made him a little hard to understand at times.

[9] See s 65 of the Criminal Procedure Act 2009 (Vic) ("CPA"). See also s 256(2)(c) of the CPA, which provides that the County Court "may exercise any power which the Magistrates' Court exercised or could have exercised".

[10] While a pseudonym order was not made in respect of the witness EF, it is preferable to assign him a pseudonym too, especially given that, as CD's colleague, identification of him is likely to identify her and, in turn, perhaps, AB as well.

[15] EF appeared to be young man, perhaps in his twenties.

[20] See ss 66 and 67 of the CPA.

[21] See s 69 of the CPA.

[22] See ss 73 and 74 of the CPA.

[23] I have altered the paragraphing and edited some of the punctuation found in the transcript. For the sake of brevity, but hopefully without distorting the context, I have excised some passages (which excisions are shown by ellipses). For convenience, I have also inserted paragraph numbers for these and the following passages in the judge's reasons.

[24] Presumably, his Honour meant something like "towards" or "in respect of".

[25] While such appeals "must be conducted as ... rehearing[s]" (see s 256(1) of the CPA), they are, in truth, conducted as hearings de novo (see, for example, Neil v County Court of Victoria & Anor [2003] VSC 328; (2003) 40 MVR 265 at 270[14]-271[15] (per Redlich J) on the equivalent provisions in the Magistrates' Court Act 1989 (Vic), which were in similar terms to those in the CPA; and Keech v County Court [2017] VSC 525 at [18], [52], [93], [95] & [100] (per Riordan J)).

[28] The context makes clear that his Honour meant "down" or "along".

[29] AB gave her his nickname, which I shall not repeat, as it may tend to identify him.

[30] These emphasised words, or their gist, were said in evidence-in-chief by CD, but not in cross-examination when she was specifically asked about this cheek-kiss.

[31] As we have seen (from the evidence outlined earlier), this emphasised passage is not an accurate account of CD's evidence in re-examination. See further below.

[32] Other evidence shows that this incident cannot have occurred on "the day after their first meeting".

[33] The context makes clear that his Honour meant to say, "She said."

[36] In the course of discussion on the plea, when it was suggested by the prosecutor that the judge had set aside "the decision" of the magistrate, his Honour said that he had "not made any orders yet". When the prosecutor then suggested that, to hear the appeal, the judge "effectively had to set aside the decision of the magistrate", his Honour said, "One doesn't do that ... until one finds whether or not the appeal has been sustained"; and, "The decision of the magistrate remains on foot until I set it aside, which I will do and then ... I will make orders." However, the true position is that, at the commencement of an appeal, the order of the Magistrates' Court is either formally set aside or deemed to be set aside (see s 256(2) of the CPA and Quick v Creanor [2015] VSCA 273; (2015) 49 VR 479 at 483[20]-484[21] (per Maxwell P, Beach JA and Kaye JA), approving of Helfenbaum v Sattler [1999] VSC 548; (1999) 109 A Crim R 134 at 138 (per Beach J); see also Neil v County Court of Victoria & Anor [2003] VSC 328; (2003) 40 MVR 265 at 271[16] (per Redlich J) and Keech v County Court [2017] VSC 525 at [21] (per Riordan J)).

[37] As we shall see below, AB also took some other points that are not reflected in these grounds.

[38] See, for example, s 276(1)(a) of the CPA ("the verdict of the jury is unreasonable or cannot be supported having regard to the evidence").

[39] See, for example, Rees v County Court (2010) 34 VAR 250 at 261[23] & 263[26] (per Cavanough J).

[40] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418[91] (per Hayne, Heydon, Crennan and Kiefel JJ). See also O'Connor v County Court (Vic) (2014) 67 MVR 66 at 76[39] (per Kaye J).

[41] As to what may constitute the record in light of s 10 of the Administrative Law Act 1978 (Vic), see, for example, O'Connor v County Court (Vic) (2014) 67 MVR 66 at 72[23]-74[30] (per Kaye J).

[42] See, for example, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at 407[19] (per Mansfield, Selway and Bennett JJ); and Moore v Barton [2014] VSC 78 at [65] (per Dixon J), quoting SZNKV v Minister for Immigration and Citizenship [2010] FCA 56 at [37] (per Kenny J).

[43] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Government Action and Government Liability, 7th edition, Thomson Reuters (2022), at p 212[5.70].

[44] In particular, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 620[23]-621[24], 622[31] & 624[38] (per Gummow ACJ and Kiefel J) & 636[96], 647[128] & 647[130]-649[133] (per Crennan and Bell JJ); and Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at 362-363[64] & 367[76] (per Hayne, Kiefel and Bell JJ). Neave JA also referred to Minister for Immigration and Border Protection v Singh (2014) FCR 437 (Allsop CJ, Robertson and Mortimer JJ).

[45] Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 135 at [92]- [96] (per Neave JA, Santamaria JA and Ginnane AJA agreeing).

[46] This is a reference to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

[47] In a footnote, Neave JA here cited Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 624[39] (per Gummow ACJ and Kiefel J) & 647[128]-648[130] (per Crennan and Bell JJ); and Rees v County Court (2011) 34 VAR 250 at 253-254[7] (per Cavanough J).

[48] In a footnote, Neave JA here referred to her earlier discussion of Minister for Immigration and Citizenship v SZMDS and also to Rees v County Court (2011) 34 VAR 250 at 260-261[22].

[49] In a footnote, Neave JA here cited Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, Thomson Reuters, 5th edition (2013), n 49, p 367[6.450].

[50] In a footnote, Neave JA here referred to Commissioner of AFP v Magistrates' Court of Victoria [2011] VSC 3 at [65]-[66] & [77] (per J Forrest J); Rees v County Court (2011) 34 VAR 250 at 255[8]-[9] & 259[19]-263[23] (per Cavanough J); and Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 at [108] (per Emerton J).

[51] In a footnote, Neave JA here noted that the plaintiff in Rees sough certiorari under Order 56 of the Rules to quash an order made by a County Court judge, on the basis that there was no probative evidence on the basis of which the judge could have reached the conclusion he did.

[52] In a footnote, Neave here referred to Rees v County Court (2011) 34 VAR 250 at 259-260[21].

[53] In a footnote, Neave JA here cited Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154.

[54] In a footnote, Neave JA here referred to Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 at [108] (per Emerton J).

[55] Rees v County Court (2011) 34 VAR 250 at 259[20]-263[26] (per Cavanough J).

[56] Rees v County Court (2011) 34 VAR 250 at 253[5]-259[19] (per Cavanough J).

[57] In the context of judicial review of the decisions of medical panels, see, for example, Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266 at [21]- [22] (per Richards J); Mailton Holdings v Jussy [2019] VSC 421 at [39]- [41] (per Richards J); and Devaney v Crown Melbourne Ltd & Ors [2020] VSC 594 at [20]- [25] (per Macaulay J). In the context of judicial review of orders, findings of guilt or rulings made by the Magistrates' Court, see, for example, Blyss v The Magistrates' Court of Victoria [2016] VSC 548 at [52], [60], [62], [68], [72] & [77] (per Zammit J); Boros v Magistrates' Court [2019] VSC 258 at [29] (per Cavanough J); Marijancevic v Mifsud [2020] VSC 69 at [7] (per Richards J); and Marijancevic v Yu [2020] VSC 70 at [8] (per Richards J).

[58] See, for example, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177-178 (per Brennan, Deane, Toohey, Gaudron & McHugh JJ).

[60] The Honourable Robert Clark, Attorney-General, Hansard, Legislative Assembly, 21 August 2014, p 2,933.

[61] For example, from 1 July 2017, the heading to Subdivision (8A) of Division 1 of Part I of the VCA was changed to "Rape, sexual assault and associated sexual offences". As explained in the Explanatory Memorandum (at p 12) to the Crimes Amendment (Sexual Offences) Bill 2016 (Vic) ("the 2016 Amending Bill"), which became the Crimes Amendment (Sexual Offences) Act 2016 (Vic), this change was made "because the Bill introduces other sexual offences, including procuring sexual act by threat, procuring sexual act by fraud, and sexual activity directed at another person, into this Subdivision".

[62] In its original form, s 40 had two further subsections and did not include the foregoing notes. Section 40(3) excluded the defence of a mistaken but honest and reasonable belief that the touching was not sexual. Section 40(4) provided that there would be no offence if the touching were done in the course of a procedure carried out in good faith for medical or hygienic purposes. From 1 July 2017, by the combined operation of ss 12 and 15 of the Crimes Amendment (Sexual Offences) Act 2016 (Vic) ("the 2016 Amending Act"), ss 40(3) and (4) were repealed and replaced respectively by s 48B(a) and s 48A(1)(a) (which are set out below).

[63] Section 35 is located in Subdivision (8) of Division 1 of Part I of the VCA, as are the other 'definitional' provisions to which s 35 directs attention.

[64] The equivalents of ss 35B(1) and (2) were originally included in the VCA in ss 37E(1) and (3) (see s 4 of the 2014 Amending Act). Section 37E(3) was in similar terms to s 35B(2), save that paragraph (a) did not include the words "or a person who identifies as a female", and save that paragraph (b) did not include the words "sexual arousal or". Section 37E was repealed and, in the main, replaced by s 35B from 1 July 2017. Section 37E(2) had addressed the touching involved where a person caused another to be touched by a third person or an animal. But this form of touching came to be addressed squarely within an offence provision (as distinct from within a definition provision), namely s 41(1), which creates the offence of sexual assault by compelling sexual touching. (See ss 5, 9 and 13 of the 2016 Amending Act.)

[65] Sections 36 and 36A are in Subdivision (8) of Division 1 of Part I of the VCA.

[66] The equivalent of this provision was originally included in the new Subdivision (8A) of the VCA as s 37G (see s 4 of the 2014 Amending Act). Section 37G was repealed and replaced by s 36A (in relevantly identical terms) from 1 July 2017 (see ss 5 and 9 of the 2016 Amending Act).

[67] Sections 37A and 37B are found in Subdivision (8) of Division 1 of Part I of the VCA. The words "or mental illness" were added to ss 37A(b) and 37B(c) from 1 July 2017 (see ss 6 and 7 of the 2016 Amending Act).

[68] Including, for example, the leading decision of the House of Lords in R v Court [1989] AC 28. See also, for example, R v Harkin (1989) 38 A Crim R 296 at 301 (per Lee J, Wood J and Matthews J agreeing); R v RL [2009] VSCA 95 at [9] (per Nettle J, Dodds-Streeton JA and Coghlan AJA agreeing); and Sabet v The Queen [2011] VSCA 124 at [10]- [21] (per Lasry AJA, Ashley JA and Harper JA agreeing).

[69] See Sabet v The Queen [2011] VSCA 124 at [17] (per Lasry AJA, with whom Ashley JA and Harper JA agreed).

[70] Sabet v The Queen [2017] VSCA 124.

[71] See, for example, s 35(1) of the VCA (definition of "animal").

[72] See, for example, s 35(1) of the VCA (definition of "sexual penetration"), which refers the reader to s 35A, in which the meaning of "sexual penetration" in relation to humans is codified.

[73] Seymour (a pseudonym) v The Queen [2020] VSCA 113.

[74] See s 49D(1)(c)(i). The offence created by s 49D(1) contains an additional element, not present in s 40(1), that the touching be "contrary to community standards of acceptable conduct" (s 49D(1)(c)(ii)). But that element was not in issue in the appeal; only the requirement that the touching be sexual was. The rationale for the inclusion of the "community standards" element is explained by the Criminal Law Review in its Consultation Paper (at pp 80-81) when discussing its recommendation that the offences that now exist in ss 49D, 49E, 49F and 49G be inserted into the VCA in place of the offence (in s 47) of committing an indecent act with a child under 16.

[75] In a separate judgment, Maxwell P agreed with Kaye and Weinberg JJA on this point (Seymour (a pseudonym) v The Queen [2020] VSCA 113 at [1]).

[76] Seymour (a pseudonym) v The Queen [2020] VSCA 113 at [84]- [85] (per Kaye and Weinberg JJA).

[77] Seymour (a pseudonym) v The Queen [2020] VSCA 113 at [89]- [92] (per Kaye and Weinberg JJA).

[78] The applicant's other ground of appeal - which went to all four verdicts, but is irrelevant to the issues in this case - was also dismissed.

[79] Of course, in practice, it is difficult to imagine a situation in which the trier of fact would not consider sexual an instance of touching in respect of which sexual arousal or gratification was sought. On the other hand, it may be different in some situations in which the evidence shows that the accused got, but did not seek, sexual arousal or sexual gratification within the meaning of s 35B(2)(b). For example, a doctor, nurse or other health practitioner who, inadvertently, became sexually aroused from touching a patient, or a parent who, also inadvertently, became sexually aroused when bathing a child, might not, by that fact alone, be regarded as having touched the complainant sexually. I note that s 48A(1)(a) of the VCA also provides an exception to an offence against s 40(1) for touching done in good faith for medical or hygienic purposes.

[80] If, however, the evidence raised a hypothesis consistent with the touching not being sexual, that hypothesis would have to be excluded before a finding that the touching was sexual could be made.

[81] See, for example, R v Nguyen; Re Director of Public Prosecutions Reference (No 1 of 2004) (Vic) [2005] VSCA 172; (2005) 12 VR 299 at 311[32] & 312-313[37] (per Vincent, Eames and Nettle JJA).

[85] Explanatory Memorandum to the 2016 Amending Bill, p 8.

[86] Explanatory Memorandum to the 2014 Amending Bill, p 6.

[87] See, for example, R v RL [2009] VSCA 95 at [9] (per Nettle JA, Dodds-Streeton JA and Coghlan AJA agreeing), citing R v Court [1989] AC 28 at 42-43 (per Lord Ackner) and AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at 473[95] (per Heydon J).

[88] See the Explanatory Memorandum (at p 11) to the 2014 Amending Bill.

[89] Compare s 3(1) of the Sexual Offences Act 2003 (UK) ("the UK Act"), which creates the offence of sexual assault. Section 78 of the UK Act provides that touching will be sexual if a reasonable person would consider that it is sexual. Reference to the Consultation Paper (at 2.2) and the similarity between s 3(1) of the UK Act and s 40(1) of the VCA suggests that the offence of sexual assault in the VCA was modelled, in part, on the United Kingdom legislation. However, the drafters of the Victorian legislation - purposely, one might assume - omitted to include a reasonable person test. By contrast, when the New South Wales legislature in 2018 replaced indecent assault with the offence of "sexual touching", found in s 61KC of the Crimes Act 1900 (NSW), it defined (in s 61HB(1)) "sexual touching" by reference to the perspective of the hypothetical reasonable person.

[90] See CTM v The Queen (2008) 236 CLR 440 at 462[61] & 472-473[104] (per Kirby J) (referring to He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 545 (per Gibbs CJ, Mason J agreeing at 546), 582 (per Brennan J) & 592-593 (per Dawson J)) & 486-487[159]-[160] (per Hayne J).

[91] On the approach taken under ss 3(1) and 78 of the Sexual Offences Act 2003 (UK), see Attorney General's Reference (No 1 of 2020) [2021] QB 441 at 454[47]-[48] (per Fulford LJ, Holgate J and Sir Roderick Evans); see also at 449[30]-453[46].

[92] The defence of honest and reasonable mistake of fact applies in the context of offences in which the prosecution need not prove that the accused had any particular subjective state as an element of the offence: see He Kaw The v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 531-531 (per Gibbs CJ, Mason J agreeing at 546) & 591-592 (per Dawson J). Compare an offence requiring proof of intent or recklessness, where a mistake of fact that is genuinely (albeit unreasonably) held may exculpate the accused.

[93] Or a person who identifies as a woman (see s 35B(2)(a) of the VCA).

[94] Compare Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [No 6] (1996) 64 FCR 79 at 83-84 (per Lindgren J); Randwick City Council v Minister for the Environment [1998] FCA 1376; (1998) 54 ALD 682 at 703 (per Finn J).

[95] Were such evidence in issue, the discretion contained in s 136 of the Evidence Act 2008 (Vic) might become important.

[96] Explanatory Memorandum to the 2016 Amending Bill, p 20.

[97] As to which, see, for example, Sabet v The Queen [2011] VSCA 124 at [13]- [15] (per Lasry AJA, Ashley JA and Harper JA agreeing), citing R v Harkin (1989) 38 A Crim R 296 at 301 (per Lee J, Wood J and Matthews J agreeing) and R v RL [2009] VSCA 95 at [9] (per Nettle JA, Dodds-Streeton JA and Coghlan AJA agreeing).

[98] Sabet v The Queen [2011] VSCA 124 at [17] (per Lasry AJA).

[99] This was a reference to R v Harkin (1989) 38 A Crim R 296.

[100] I have re-ordered the descriptions of these grounds (and the others to be addressed below) to reflect, more or less, the order in which these points are addressed in the reasons that follow.

[101] My emphasis. For ease of reference, I have reproduced the relevant part of the judge's reasons here, and have broken those reasons down into individual sentences and assigned sub-paragraph numbers.

[102] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177-178 (per Brennan, Deane, Toohey, Gaudron & McHugh JJ).

[103] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Government Action and Government Liability, 7th edition, Thomson Reuters (2022), at pp 211[5.60]-212[5.70] (see also the cases there cited).

[104] I note also that the Director did not submit that the evidence that AB pulled CD in to kiss her could support the finding that the touching was sexual. She was correct to take this approach. Nor was any reliance placed on CD's evidence that she felt "shocked, violated, just uncomfortable, not safe". This too was the correct approach to take. These matters went to the issue of consent (and were perhaps relevant to stalking), but not to whether the touching was sexual.

[105] Some will remember that, in 1980, Irish singer-songwriter Gilbert O'Sullivan asked, but did not answer, this very question in his song What's in a Kiss? ("What's in a kiss/Have you ever wondered just what it is/More perhaps than a moment of bliss/Tell me what's in a kiss").

[106] Instead, these matters may go to other elements of sexual assault under s 40(1), such as the absence of consent to the touching and the absence of a reasonable belief in consent to the touching.

[107] See, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (per Robertson J); MIBP v MZYTS (2013) 230 FCR 431 (per Kenny, Griffiths and Mortimer JJ); MIBP v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (per Katzmann, Griffiths and Wigney JJ); BZAFI v MIBP [2015] FCA 771 (per Rangiah J); Karabinis v Bendrups [2017] VSC 648 (per J Forrest J); Chang v Neill [2019] VSCA 151; (2019) 62 VR 174 (per Maxwell ACJ, Beach and Kyrou JJA).

[108] Later, I shall address AB's complaint about the finding that he did in fact kiss CD.

[109] I shall say more about this issue when addressing AB's complaint about the judge's use, and non-use, of the record of interview later in these reasons. The two complaints should be read together.

[110] See, for example, Sabet v The Queen [2011] VSCA 124 at [16] (per Lasry AJA) and [24] (per Ashley JA).

[111] See, for example, Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535 (per Gibbs CJ and Mason J); R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638[48] (per Gummow, Hayne and Crennan JJ).

[112] See Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 339-340[41] (per Gaudron J).

[113] Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 at 89[9] (per Basten JA, Beazley P agreeing at 88[1]), citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (per Mason J).