Psaras v Hales [2005] NTSC 36

[1] This is an appeal from a conviction and sentence imposed by a Stipendiary Magistrate in the Court of Summary Jurisdiction on 11 February 2003.

[2] The appellant had entered a plea of not guilty to the following two charges:

AND THAT the said unlawful assault involved the following circumstance of aggravation:

(i) That the said Judith KNEIPP was indecently assaulted.

Contrary to Section 188(2)(k) of the Criminal Code.

1. deprived Judith KNEIPP of her personal liberty.

[3] Following a hearing on the plea of not guilty, the learned Stipendiary Magistrate found the appellant guilty. His Worship convicted the appellant and imposed an aggregate sentence of six months imprisonment suspended forthwith for a period of two years pursuant to the Sentencing Act.

[4] A Notice of Appeal was filed on 11 March 2003. Thirteen grounds of appeal were filed on 6 September 2004. At the hearing of the appeal on 8 June 2005, leave was granted to the appellant to abandon grounds 1 to 13 inclusive and substitute the following grounds.

That the whole of the judgment of the Stipendiary Magistrate be set aside on the grounds that:

The learned stipendiary Magistrate manifestly failed to give any consideration to the issue of whether there was evidence capable of corroborating the account of the complainant as to the commission of the offence of indecent assault and if there was such evidence whether that evidence confirmed the allegations of the complainant in a material particular thus rendering her account of events more probable than that of defendant.

The findings of the learned special (sic) Magistrate in respect of both counts 1 and 2 are unable to be supported having regard to the evidence."

[5] At the hearing before the learned Stipendiary Magistrate the complainant, Judith Elizabeth Kneipp gave evidence. The Prosecution also called Tracey Jane Sutherland and Constable Christopher Board. At the conclusion of the Crown case, Ms McLaren who appeared for the defendant, being Charley Psaras (the appellant in these proceedings), submitted there was no case for the defendant to answer. The application that there was no case to answer was rejected by the learned Stipendiary Magistrate. Evidence was then given for the defence by Charley Psaras. At the conclusion of all the evidence his Worship heard submissions from the Prosecutor and counsel for the Defence. His Worship detailed his reasons for finding the offence proved and proceeded to conviction and sentence.

[6] I have now had an opportunity to read the transcript of the proceedings before the Court of Summary Jurisdiction.

[7] In addition to the oral evidence there were exhibits tendered including a statutory declaration of Ms Kneipp (Exhibit A), a map of the caravan park, a diagram of the inside of the caravan and tapes of a record of interview between Constable Board and Charles Psaras.

[8] The learned Stipendiary Magistrate gave detailed reasons for his decision.

That the whole of the judgment of the Stipendiary Magistrate be set aside on the grounds that:

The learned Stipendiary Magistrate manifestly failed to give any consideration to the issue of whether there was evidence capable of corroborating the account of the complainant as to the commission of the offence of indecent assault and if there was such evidence whether that evidence confirmed the allegations of the complainant in a material particular thus rendering her account of events more probable than that of defendant."

[9] The essence of the complainant's allegation is that she was indecently assaulted by Charley Psaras. Her evidence is that on the night of 1 February 2002 at about 8.00 pm she was at home watching television. Ms Kneipp lived in a caravan at the Overlander Caravan Park. She received a visit from Ms Sutherland who wanted Ms Kneipp to accompany her to Mr Psaras' caravan. This is because, on Ms Kneipp's evidence, Ms Sutherland wanted to speak with Mr Psaras' "wife Chrissie". The two women went together to Mr Psaras' caravan. Ms Kneipp gave evidence that when she started to walk back to her caravan, Mr Psaras walked over close to her and was talking to her. She states he grabbed her by the wrist and dragged her back to his caravan which was nearby. It is Ms Kneipp's evidence that Mr Psaras was drunk and that she could smell this on his breath. She described how he opened the door of his caravan as he still held her wrist and then pushed her inside against the sink. He then pushed her onto the bed. She landed on her back on the bed. He lay beside her. He tried to remove her clothes and to touch her on her breasts and on her vagina. Ms Kneipp described how she struggled to get away from Mr Psaras. She states he put her clothes on the floor. She described a knock on the door and she heard Ms Sutherland. She states Mr Psaras put his hand over her mouth and she was unable to shout out to Ms Sutherland. She describes getting up when Mr Psaras stood up and that she went out the door. Her evidence is when she got to the door she saw Ms Sutherland and immediately told her that Mr Psaras had tried to rape her. She describes returning to her own caravan and Ms Sutherland coming over to sit with her for a while.

[10] Ms Sutherland gave evidence that at the caravan park on the night of 1 February 2002 there was some conversation between herself and Mr Psaras and some other persons who lived at the caravan park. She states Mr Psaras' words were slurred and she formed an opinion that he had been drinking. Ms Sutherland gave evidence that Ms Kneipp and Mr Psaras had walked off, but it was very dull light. Ms Sutherland says she could not see clearly. Ms Sutherland gave evidence she heard Ms Kneipp say to her "I'm going to Charley's, don't be long." She then described how she stayed chatting for a few minutes and then walked to Mr Psaras' caravan. Ms Sutherland described how she knocked on the door of Mr Psaras' caravan. No one answered. She then banged on the door and still receiving no answer, she went to Ms Kneipp's caravan presuming Ms Kneipp may have returned to her own caravan. Ms Sutherland could not find Ms Kneipp at her own caravan and she returned to Mr Psaras' caravan. Ms Sutherland described how she banged on the door again and called out "Charley". She could hear movement inside the caravan. She describes banging on the door again and heard a voice say "wait a minute". The next thing that happened, she states, is that Ms Kneipp was coming out of the door, she was crying and distressed. Ms Sutherland described Ms Kneipp as having a blue tank top which Ms Kneipp was pulling down over her breasts. Ms Kneipp's first words were "he tried to rape me". Ms Sutherland gave a further description of Ms Kneipp's distress and describes how she and Ms Kneipp returned to Ms Kneipp's caravan.

[11] The third witness to be called for the Prosecution was Constable Christopher Board. An audio taped record of interview between Constable Board and Mr Psaras made on 7 February 2002 was played to the Court. These audio tapes were tendered through Constable Board (Exhibit 2).

[12] Mr Psaras also gave evidence. He stated at the relevant time he was living at the Overlander Caravan Park. He states on 1 February he lived there in a caravan with his girlfriend Christine. He had gone to talk to other persons he referred to as AJ and Shannon at their caravan. He describes Ms Sutherland and Ms Kneipp arriving. He says Ms Kneipp said she wanted to talk with him about his "girlfriend Chris". Mr Psaras describes how he walked back to his caravan and Ms Kneipp followed him. He states she came into his caravan and sat on his couch. He said Ms Kneipp started talking about drugs. It is his evidence that Ms Kneipp asked him to go to the next door caravan park to get drugs for her. He stated she offered to pay him next week when she got paid. Mr Psaras also gave evidence that the other girl, referring to Ms Sutherland, was also outside his door. His evidence is that Ms Sutherland had said she had money and also asked him to get her drugs.

[13] Under cross examination, he stated the drugs they wanted him to obtain for them was marijuana. He described in some detail the conversation he had with both women and the money he said Ms Sutherland had. Both in examination in chief and cross examination he described how he had told the two women he did not want to become involved in drugs and refused their request. He then described how they both walked away upset with him. In his evidence to the Court, he denied the allegations as to the assault upon Ms Kneipp. He denied he had taken off her clothes or touched her on her breast or her vagina. He stated the door to the caravan was always partially open. His evidence is that he never touched Ms Kneipp and that she was in the front of the door whilst he was on the other side of the table and she was able to leave his caravan at any time. He said when he refused to go to buy drugs for the two women, they ran away.

[14] At the conclusion of all the evidence and submissions, the learned Stipendiary Magistrate gave his reasons for decision. He gave reasons why he found Ms Kneipp to be a credible witness. He stated he preferred the evidence of Judith Kneipp to the evidence of Mr Psaras. His Worship analysed the evidence of Judith Kneipp, Tracey Sutherland and Charley Psaras.

[15] On behalf of the appellant, J.W. Lewis of counsel, submitted that in this case corroboration was called for and the learned Stipendiary Magistrate should have directed himself in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. It was further submitted that the learned Stipendiary Magistrate should have considered in particular:

• "whether there is any need for corroboration of the evidence of the complainant,

• whether there is evidence which is capable of amounting to corroboration,

• passages of evidence which are identified by the Magistrate as amounting to corroboration, and

• whether, notwithstanding the absence of evidence which may amount to corroboration he is satisfied beyond reasonable doubt of the veracity of the complainant and the truth of her assertions."

[16] Mr Lewis further submitted that:

"The learned stipendiary Magistrate failed to warn himself that it was unsafe for him to convict the defendant on the uncorroborated evidence of the complainant since there was evidence that the complainant invented the story of indecent assault because she was angry that he had not obtained for her some illegal drugs she wanted (and see Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79)."

[17] Counsel for the respondent, Stephen Geary, made reference to a decision of R v Costin (1998) 3 VR 659 (CA) Charles JA said at 663:

"The obligation to give a Longman warning only arises when the trial judge concludes that the circumstances of the particular case would make it unsafe to convict the accused on the uncorroborated evidence of the particular alleged victim. This requires something more than that proof of the offence rests on the uncorroborated evidence of the alleged victim.

[18] I do not consider that it was necessary for the learned Stipendiary Magistrate to give himself a formal "Longman direction". From a total reading of his Worship's decision it is clear that he was well aware it was necessary to closely analyse the evidence of the complainant before proceeding to find the offence proved. At tp 93 he stated:

"And in terms of what occurred in the caravan, I prefer her version. And where it conflicts with the defendant, I prefer hers to his. I know that - in saying that, I am aware, and remind myself of the dangers when coming to the view that I have, that I prefer her evidence over his, that she has been slightly inconsistent with her original police statement. But I believe that the complaints about that are nit picking, and are on their margins and really don't go to her credit in terms of the core allegation. And I also have found, as I say, the second police witness to be credible and believable."

[19] His Worship acknowledged that there were inconsistencies between the evidence given by the complainant with the statement she made to police which had been tendered in the proceedings. These inconsistencies were enumerated by Ms McLaren in some detail in her no case submission. I refer to just a few such inconsistencies by way of example: Ms Kneipp saying in her statement to police that she spoke to Shannon and then giving evidence that she did not speak to Shannon that night. Reference was made to other inconsistencies between the statement to police and evidence of Ms Kneipp as to conversations she had with others at the caravan park prior to the alleged offence occurring. A further discrepancy that was referred to was, that in her statement to police, Ms Kneipp had said she was pushed on the bed and her legs were hanging over the bed. In her evidence to the Court she had said the full length of her body was on the bed. Reference was also made to inconsistencies between Ms Kneipp's evidence to the Court as to how her clothes were removed and her statement to police about Mr Psaras removing her shorts and underpants. Comment was made about Ms Kneipp's evidence to the Court that Mr Psaras put his hand over her mouth and her statement to police that he kept putting his fingers to his mouth and saying "Shh". Having read the transcript of evidence given by Ms Kneipp to the Court on 21 January 2003 and her Statutory Declaration to police dated 5 February 2002, I consider they are substantially consistent, particularly with respect to the essential issues in the charges.

[20] In her no case submission, Ms McLaren also pointed to a number of inconsistencies between the evidence of Ms Kneipp and Ms Sutherland. Examples of this were inconsistencies between their evidence as to exactly where they were and who they spoke with in the caravan park prior to the alleged offence. There were also inconsistencies in their evidence as to what occurred when Ms Sutherland came to the door of Mr Psaras' caravan. It was pointed out that Ms Sutherland did not give evidence that Mr Psaras grabbed Ms Kneipp by the wrist and dragged her away, but rather that Mr Psaras and Ms Kneipp walked off together to his caravan. There were quite a number of other inconsistencies highlighted by Ms McLaren in her no case submission between the evidence of Ms Kneipp and the evidence of Ms Sutherland which I do not consider it necessary to enumerate. Similarly, there were numerous other inconsistencies between the evidence of Ms Kneipp to the Court and her original statement to the police. I have given only a few examples.

[21] The learned Stipendiary Magistrate was very aware of the inconsistencies. He made specific reference to the fact that there were inconsistencies when he went on in the course of his reasons to say (tp 93):

"So despite some variations between the two police - the first police witnesses and, as I've said, some variations between the complainant's evidence and her statement, I don't think on mature reflection that they affect the view I've come to of the complainant's credibility, and reliability, in relation to her being taken by the wrist at some stage, and against her will, to that caravan and kept in there against her will despite protest, and assaulted the way she says occurred; on the bed, in terms of indecency.

This man did, I find, put his hands to her breasts and her vaginal area against her will, was trying to undress her to some extent, and desisted after Tracey Sutherland was banging on the door of - a closed door, I find it to be, of his caravan. I find each and every element of the charges 1 and 2 made out on all the evidence and I find them made out beyond reasonable doubt, and I find the defendant guilty of both charges."

[22] In the course of his reasons for decision, the learned Stipendiary Magistrate also made reference to the evidence of Mr Psaras and why he did not accept him as a credible witness. I shall deal with this in more detail under Ground 2 of the appeal.

[23] With respect to Ground 1 of the appeal, I am not satisfied this ground has been made out. This ground of appeal is dismissed.

The findings of the learned Stipendiary Magistrate in respect of both counts 1 and 2 are unable to be supported having regard to the evidence.

[24] The inconsistencies in the evidence of the two prosecution witnesses are also relevant to this ground of appeal. Having read through the evidence and the reasons given by the learned Stipendiary Magistrate, I do not consider there was any error by his Worship in treating these inconsistencies as anything more than peripheral to the real issue and that these inconsistencies did not affect the complainant's credibility and the reliability of her evidence.

[25] Mr Psaras gave evidence to the effect that he did not touch Ms Kneipp in the way she alleges. It is central to his defence that on his evidence, Ms Kneipp and Ms Sutherland asked him to obtain marijuana for them and that when he refused to do so they became distressed and left. This was put forward as being a reason for Ms Kneipp to make a false complaint against him.

[26] In his quite lengthy record of interview to police, Mr Psaras made no mention of the fact that these two women had asked him to obtain drugs for them and that was the cause of their distress and that they ran away.

[27] When he was asked in his evidence to the Court of Summary Jurisdiction why he did not tell this to police at the time of the record of interview, he replied "I didn't want to get involved, and I didn't want my girlfriend to get involved". This was an extraordinary reason for not telling the police his version of the women asking him to buy drugs. The greater part of his evidence in his own defence centred around his story that the two women had asked him to buy drugs for them and when he refused they ran away in a state of distress. It is not conceivable that if this were true he would not have given such an explanation to police at the time of his initial record of interview. There were other inconsistencies in his evidence to the Court and his record of interview but this inconsistency goes to the very heart of his defence.

[28] The learned Stipendiary Magistrate made some adverse findings concerning the credibility of Mr Psaras. He dealt with the evidence of Mr Psaras as follows (tp 93):

"And in attempting to tell the police the truth, he admits that he didn't mention any details about the complainant going to him in his unit - at his caravan and wanting drugs bought. He didn't mention to the police, but which he says today and which was put to the witnesses, that they made up this whole story of indecent assault, because they were angry with him because he hadn't bought their drugs. To quote him in his record of interview in his description of the girl and her story: 'She's fucking mental.' They're the words he used on the tape to the police. He was endeavouring to disparage her entirely, and her story.

In coming to a view as to whether the charges are made out beyond reasonable doubt, of course, I have to look at all the evidence. And Mr Psaras got in the witness box, and swore to tell me the truth, and denied the allegations of indecent assault, his hand on the breast, the vagina or anything of the like, any violence at all, any taking the girl against her will to his caravan and keeping her there. And in quite some detail explained to me what had occurred, and denied every allegation of wrongdoing.

He was cross-examined vigorously. I am sure he indicated that the place to buy the drugs was a red bus. Something that, in terms of the colour at least, hadn't been put to the two first prosecution witnesses. And then under cross-examination - it's only a minor point, but telling in my view - when asked how he knew that the two girls were upset about his refusal to buy the drugs indicated that they'd run away.

This man has been in Australia since 1975 - 28 years. There was no suggestion that he didn't understand English. No suggestion from his solicitor that he needed an interpreter. In re-examination he resiled from running. It might indicate that he had made that up whilst giving his evidence, and exaggerated an already exaggerated story, or, in fact, a made up story in terms of motivations which he needed to have to say because he wanted to say that the complainant was lying.

Having regard to all his evidence, the manner of his giving of his evidence and his demeanour, I formed a poor view of his credibility, which is in contra distinction to that of the complainant. I believed her, and on all of the evidence there was nothing to dissuade me or would indicate a lessening of that view. It's not a matter of just who I believe, it's a matter of whether I'm convinced beyond reasonable doubt on all the evidence."

[29] The learned Stipendiary Magistrate was in a better position than this Court to assess the credibility of the respective witnesses. He heard the evidence and observed the manner in which they gave their evidence. However, from a reading of the transcript of evidence and without the benefit of seeing the witnesses, it is possible to form an assessment of the evidence in support of the learned Stipendiary Magistrate's findings.

[30] The appellant refers this Court to the decision in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493:

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

[31] Counsel for the appellant concludes his submissions by stating:

"The defence presented by the Appellant before the learned Stipendiary Magistrate was that the evidence of the young women was so unreliable that the learned stipendiary magistrate ought not to have placed any confidence in their evidence and should have found that it was reasonably possible that the evidence of the Appellant was true and dismissed the charges."

[32] I agree with the submission made by Mr Geary on behalf of the respondent to the effect that the learned Stipendiary Magistrate had looked at and assessed all the evidence. His findings are supportable on the evidence. The appellant's arguments have not persuaded me that there are reasons to overturn the findings. Ground 2 of the appeal is dismissed.

[33] Accordingly, the appeal is dismissed. This Court confirms the conviction imposed by the learned Stipendiary Magistrate on both offences. The question of sentence was not addressed by the appellant. The sentence indicates leniency was extended to the appellant in the final disposition. It is a sentence within the proper exercise of a sentencing discretion.

[34] Accordingly, I confirm the conviction and sentence imposed.

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