R v Beergah

District Court of NSW|2023-09-26

REASONS FOR JUDGMENT

Nearly a year ago to the present day, on 13 October 2022, and after a hearing that ran for four days, Mr Brian Beergah (the 'appellant') was convicted in the Fairfield Local Court (Magistrate Gibson) of the offence of sexual touching of a child between the ages of 10 and 16 years of age, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The offence was alleged to have occurred in the period from 22 July 2019 to 27 December 2019. The touching was alleged to have occurred against the complainant, a 12 year old student in Year 7, in a classroom at [redacted] Public School.
The appellant appeals that conviction.

Application to rely upon fresh evidence

As a preliminary matter, at the beginning of the hearing of the appeal, the appellant was granted leave, pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW), for fresh evidence to be given in this appeal. The fresh evidence was, in substance, that the appellant is a person of good character in a particular respect, being a person who has never been convicted or charged with any offence.
Although granting that leave, I placed something on a limitation, or more accurately qualification, on the admission of this evidence from that which was sought by the appellant in his notice of motion. There is no evidence to indicate positive or other manifestations of good character, such as community works or contributions. It is simply that the appellant has not been in trouble with the law. Another limitation is that the good character is limited in time prior to the commission of the alleged offending, rather than his conduct post-dating his being charged. It strikes me as not having any probative value that a person charged with a serious offence has behaved themselves after being charged.

Nature of appeals

In R v Scott [2023] NSWDC 271 at [5], I recently stated what I took to be the applicable principles guiding this Court when determining conviction appeals. These were: "2. Section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) provides that the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo. 3. The court must give the judgment which, in its opinion, ought to have been given in the first instance. 4. The appellant must demonstrate factual, legal, or discretionary error to succeed. 5. That said, the term 'error' has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of 'error' in the ordinary meaning of that term. 6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the prosecution bears the onus on establishing guilt beyond reasonable doubt. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant's guilt. An appeal must be upheld unless the appellate judge is satisfied of the appellant's guilt beyond reasonable doubt. 7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt"
In the same decision, I also identified (at [6]) certain forensic limitations, being: "(1) there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties: Lunney v DPP (2021) 105 NSWLR 236 at [3], [29]-[30] [1] ; and (2) the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses: McNab v DPP (NSW) (2021) 106 NSWLR 430 ("McNab") at [73]; (3) in particular, (and as a function of the appeal being conducted on the basis of the transcript and exhibits in the Local Court) where credit findings are made by the Magistrate, the appellate judge recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising that advantage, the appellate judge will, in practice, be focussing on the question whether disputed evidence (especially in a 'he said, she said' type case) is consistent with incontrovertible facts, undisputed facts and other relevant evidence: McNab at [32].
To this brief list of forensic limitations I would also add two others, which are corollaries of the first and third limitations. Given that appellate judges in appeals of the present kind are guided by the way that a party on appeal runs its appeal - including identification of suggested error - Magistrates have the further advantage of seeing and hearing the evidence in its entirety and in context. This particular hearing in the Local Court ran for 4 days (prior to the delivery of reasons). There were 16 exhibits. A common feature of written submissions by an appellant and the Crown in appeals of this kind is that they dive into the evidence relied upon to support or resist the impugned error. This can lead to a deal of cherry-picking of the evidence at first instance divorced from context.
Also, appellate judges are not only guided by the way that the parties present their cases on appeal but necessarily (and at the risk of stating the obvious), also, how the parties choose to present their cases in the Local Court. This is partly manifested in the statutory nature of the appeals - being a rehearing limited to the transcript with an exceptional dispensation for parties to present (with leave) fresh evidence on appeal. In this appeal, it is apparent that the then Counsel for the appellant did not call the appellant. No adverse inference could be drawn or was drawn by the learned Magistrate and the omission could not make up for deficiencies in the prosecutor's case. He did however, rely upon his ERISP, although for reasons to be later elaborated, there were limitations - which even the appellant acknowledged at the time of the interview - about the state of his recollections of events. The appellant's case before the Local Court centred very much upon inconsistencies, such as they were suggested, in the evidence between the prosecution witnesses with a theme that the schoolgirls found that the appellant was 'weird' and that their reliability as witnesses was impaired as they had a motive to lie: they wanted to get rid of the appellant because he was an enforcer of discipline in the classroom and their evidence was concocted or contaminated as a result. To be sure, the appellant was entitled to say nothing at all and had nothing to prove at all. But, to take the point from Weissensteiner v The Queen (1993) 178 CLR 217, if as ultimately occurred, the Magistrate found that touching did occur as alleged by the complainant, then when his Honour went on to consider the other elements of the offence, such as whether the touching was 'accidental' or 'sexual', hypotheses consistent with innocence may cease if the appellant does not give an account (in an ERISP) or evidence as to what he was trying to do (on the premise that he did touch the complainant). As in all litigation, for the purpose of appeals against convictions in this Court, to a not insignificant degree, parties are bound by the way they attempt to prove and argue their case at first instance. In this case, the appellant chose to defend the charge on the narrow basis that he never touched the complainant at all and the forensic choices of his barrister, in his appeal to this Court, were tailored to and indeed constrained by that approach.
In this appeal, Counsel for the appellant pointed out that a Judge in this Court hearing an appeal is not absolutely bound by demeanour-based credibility findings and also pointed out that such findings by a Magistrate may not themselves be based upon close evaluation of a witness' evidence. The force of this submission was somewhat underscored when the video recorded child interviews of the complainant, MT and AH, constituting (respectively) their evidence in chief, were played in Court; along with the ERISP of the complainant. However, the child interview recordings was only part of the evidence of the complainant, MT and AH. I did not see or hear any of them give evidence in the Local Court when they gave supplementary evidence in chief and were cross-examined.

The offence

Section 66DB(a) of the Crimes Act 1900 (NSW) contains the following elements: 1. the accused intentionally touched the complainant; 2. the touching was sexual; 3. the complainant was a child who was above the age of 10 and under the age of 16.
Since the alleged victim was a child, at the relevant time, consent was not an element of the sexual touching offence and, similarly, there was also no element of the offence whether the appellant knew that there was an absence of consent.
It sufficed to establish 'intentional' touching by the slightest contact which was not accidental: the touching did not need to be a hostile or aggressive act causing the complainant fear or pain.
'Sexual touching' means touching another person with any part of the body, in circumstances where a reasonable person would consider the touching to be sexual (s 61HB(1)). In determining whether a reasonable person would consider the touching was sexual, the trier of fact is to consider everything that would be regarded as relevant, but there are some particular matters the trier of fact is required to take into account. They are:

the part of the body touched: was it the genital or anal area or the breasts?
whether the person doing the touching did so for the purpose of obtaining sexual arousal or sexual gratification.
was there any other aspect of the touching (including the circumstances in which it was done) which made it sexual? (s 61HB(2))

The forensic contest in the Local Court

Before the Local Court, the appellant's then Counsel appeared to concede that if the Magistrate accepted, to the requisite standard of proof, the complainant's description of being (intentionally) touched by the appellant, then the element of the touching being 'sexual' was made out (13/10/22, T 20.10). As the learned Magistrate later observed, in light of what the appellant said in his ERISP, there was no suggestion that any touching of the complainant was anything other than intentional. There was no dispute that the complainant was a 12 year old student.
As the prosecutor submitted to the Local Court, the principal issue at first instance was whether the appellant "did the act" (13/10/22, T 3.9 - 3.14). By this, the prosecutor was saying that the principal issue was whether the appellant touched the complainant. The forensic contest in this Court was relevantly the same in terms of the issue that I have to consider.

The prosecution's case - in general

The prosecutor relied upon the evidence of the complainant, and other children in the complainant's class: AH, MT. The prosecutor called as a witness another student in the class - ATY- but ultimately, the prosecutor submitted that she was an unreliable witness (13/10/22, T 13.45). The prosecutor also called one of the school teachers at [redacted] school, DC.
The prosecutor's case was that notwithstanding certain differences in detail between the complainant and the student witnesses, all of them said that the appellant touched the complainant on the upper part of her leg (generally) or thigh (more specifically) when the appellant sat next to the complainant in a year 7 geography class. This occurred, on the prosecution case, when the students in the classroom were watching a film, of some kind, and the room was dimly lit. The appellant was a casual support learner teacher. He was there to assist DC, on the relevant occasion, primarily by helping students who had been identified as having certain learning needs. The complainant was not one of these students (although ATY had identified herself as one such student: Exhibit 19 in Crown Bundle, p 71).
The complainant, and the other student witnesses gave evidence which indicated that the appellant was wont to ask them intrusive or private questions. This was relied upon by the prosecution as context evidence. The complainant, in particular, drew a sketch diagram (Exhibit 5) that was intended to amount to a drawing of the appellant's bedroom based upon a photograph (Exhibits 13 & 14) that the appellant showed her.
Other features that were common to the evidence of the complainant, MT and AH were as follows:

the appellant commonly sat with them, without being asked by them, in the geography class (even though none of them had particular learning needs);
the appellant had asked, or discussed with them personal information, such as their Applications (Apps). The complainant and MT separately said that the appellant had said, or commented something about the complainant's then girlfriend;
on the relevant occasion, the appellant took a chair and brought it over to the table where the complainant and MT were sitting;
after the appellant rubbed the complainant, the latter went back in her chair;

DC's evidence was that on 23 September 2019, she noticed the appellant talking to a group of 4 girls. On the prosecution case, DC also gave evidence which the prosecution contended was supportive of the student witnesses' evidence about the appellant asking personal questions of the students. This was said to support the prosecution case of opportunity and behaviour to support the complainant's evidence.

The appellant's defence - in general

The appellant agreed to participate in an ERISP and this was in evidence in the Local Court hearing; and replayed in the hearing of this appeal. He admitted that one of his classes in 2019 was a year 7 geography class and recalled DC's name. He said his approach was to try to bond with students and even discuss phone applications with them. He denied the allegations put to him. Generally, aside from his denial of recalling the complainant, the appellant told investigators that he was single and not had sex for 14 years (despite opportunities). He was capable of controlling himself. He also cast doubt, in effect, on the inherent probability of doing this, in the class-room context and the improbability that he would or could have thought that he could 'get away with it.' (Exhibit 12 at trial, Crown Bundle, pp 127-128; also pp 133-134). Asked whether it was possible that he could have accidentally touched her, he said no (p 129). Later he said that he could recall three girls, who were chatty and arguably conveyed, implicitly, that he may have got in close spatial proximity to the complainant and her friends.
With leave being granted for fresh evidence, this Court can now accept that the appellant is a person of good character in the particular respect of not having been convicted or charged with offences prior to the incident in question. This is a matter that this Court will take into account when considering both the likelihood of his having committed the offence and also the credibility of his explanation or account given to investigators in his ERISP.

The Magistrate's reasons

After the hearing in the Local Court, which went for 4 days (with the evidence essentially concluded on 11 August 2022), the learned Magistrate heard closing addresses, about two months later, on 13 October 2022. His Honour's reasons were given after a short adjournment during the day.
At the outset, his Honour directed himself about the onus and standard of proof. His Honour addressed the elements of the offence. He referred to the evidence in the prosecution case of the complainant and the other student witnesses. He correctly directed himself that the form of the evidence - by CCTV - did not mean that he could give any greater or lesser weight to their evidence and that this form could not be treated adversely to the appellant. He referred to the evidence of DC.
His Honour directed himself as to how, as the trier of fact, he was to evaluate the evidence of witnesses.
Significantly, his Honour alluded to salient parts of the Liberato direction, that he would be obliged to acquit the appellant if he either believed his account, as indicated in the ERISP, or if he thought it might be true: he would then have to assess whether the prosecution case was made out (beyond reasonable doubt) on the whole of the evidence. His Honour directed himself in conventional terms about the significance of the appellant electing not to give evidence in the Local Court and, in particular, that he drew no inference adverse to him by that election.
His Honour addressed other evidence, including a statement of agreed facts and contemporaneous incident reports.
His Honour then addressed, in detail, the complainant's evidence. Interspersed with this was a finding - not challenged in terms in this appeal - that in all of the circumstances, if he accepted the complainant's evidence beyond reasonable doubt, he would find that the touching was 'sexual.'
His Honour summarised the evidence of the other student witnesses, MT, AH and ATY, and then DC.
The Magistrate then addressed and considered the appellant's evidence. He made some adverse findings about the appellant's reliability. In particular, his Honour found that his initial lack of recollection of the complainant was feigned. He rejected his evidence about not asking students for personal information as amounting to an attempt to minimise his involvement with children, which conflicted with other evidence. It was a matter of some import to the Magistrate that the appellant, confronted with the allegation, would implicitly acknowledge that temptation lurked before him and his statement that he was capable of exerting control over himself.
Also the Magistrate found that he lied, when he denied showing children any photos other than of his dog when there was evidence to suggest he had shown the complainant a photo of his bedroom. The Magistrate rejected his evidence. His Honour further noted that on his account, his evidence precluded any alternative hypothesis that he might, for example, have accidentally touched the complainant.
The Magistrate addressed submissions raised by the appellant's then Counsel. Specifically, he addressed 'salient points.' This, I emphasise, was in reasons delivered if not quite ex tempore, then essentially hot on the heels, as it were, of the appellant's advocate's final address. In such circumstances, I would be naturally reluctant to find that if, in the event, the Magistrate did not refer to particular submissions made on the appellant's behalf, this betokened an absence of consideration of them.
Those points were:

DC's belief that the appellant was an assertive 'disciplinary' teacher which might be said to give rise to a desire of a strong-willed class to make serious allegations against him;
the related point that the students had concocted allegations.
it was clear, in particular, that the witness ATY had told lies.
DC was in a position to have observed any touching had that occurred, but said she saw nothing out of the ordinary.

His Honour separately addressed the appellant's points about the evidence of DC, and ATY, respectively.
The learned Magistrate then accepted that there were some differences in the details of the accounts between the complainant and the other two witnesses and addressed the appellant's submission that they would give rise to a reasonable doubt as to whether the touching occurred as the complainant said it had.
His Honour rejected that submission. He determined that the complainant was an impressive witness. His Honour identified discrete reasons why she was found to be a credible witness. This included, amongst other things, recognition that although her evidence of how the touching occurred in some ways shifted, this was a product of being asked for more detail. His Honour further found that her account was corroborated by the content of her incident report before determining that there was no significant inconsistency in her account in her evidence. His Honour determined that the appellant ran the back of his hand back to her knee, down towards her skirt and under it and then back up her knee.
His Honour was impressed with her evidence under cross-examination. Her evidence was partly supported by immediate complaint and what she wrote in the incident report.
The learned Magistrate recognised that her evidence was not totally consistent with the evidence of other witnesses, but found those inconsistencies that were identified to be peripheral. His Honour accepted her evidence of the touching beyond reasonable doubt.

The grounds of error identified by the appellant

In conformity with the approach identified in Lunney, the matters indicating that the Magistrate erred, as identified in the appellant's written submissions, were as follows: 1. the Magistrate's credit findings (which were materially adverse to the appellant) did not take into account his prior good character (paragraph 30); 2. the Magistrate's credit findings in favour of the complainant and her friends (AH and MT) did not fully account for all of the criticisms made by the appellant's then Counsel in the Local Court (paragraph 31), which were said to comprise or feature: 1. irreconcilable inconsistencies with the evidence of the classroom teacher, DC; and 2. the possibility of concoction; 1. a factual error made by the Magistrate concerning DC's identification of the date of the incident (paragraph 32); 2. DC's evidence did not corroborate the evidence of the complainant (paragraph 38); 3. a misapplication of the Liberato direction (paragraph 34); 4. refusing to find that a rejection of the evidence of one of the witnesses (ATY) did not impact on the evidence of the complainant and other prosecution witnesses (paragraph 35).
There were variants on these points raised during the hearing. Some of these points are inter-related and will be dealt with together.

Good character, the appellant's ERISP and Liberato

As to the good character point, it could not be the case that the Magistrate erred for failing to consider evidence that was not adduced. In oral argument, the appellant's Counsel argued that the appellant's ERISP was properly to be viewed against the backdrop of that good character and in particular the credibility of what he said as well as going to the likelihood of his committing the offence.
That (oral) argument may be accepted, but in my view, does not materially advance the appellant's position. I do not consider that evidence of his good character, in the particular respect, had it been adduced at the Local Court hearing, would likely have 'shifted the dial', in terms of the learned Magistrate's assessment of the appellant's credibility or the likelihood of his committing the offence. It is a matter of common knowledge that teachers in secondary public schools are taken to, or presumed, to be of good character in the particular (and rather limited) respect identified here: of not having prior charges or convictions. I accept that the circumstance of his not having previous charges or offences lends some force to the appellant's statement in the ERISP that he had been able to control sexual impulses for quite some period. But in my view, this is an inference, especially in relation to controlling sexual urges in relation to 12 year old girls who he was teaching (or aiding), that would have been drawn by the Magistrate in any event because of the appellant's status as a teacher. Moreover, it is well-known that the good character direction conventionally notes that evidence of good character provides no defence and it was for the Magistrate to place such weight upon it as his Honour wished. As I read his Honour's observations, the matters he relied upon to form adverse criticisms of the appellant's credibility were based upon an assessment of the merits of the appellant's evidence (in the context of all the evidence, including that of other prosecution witnesses), logic and the objective probabilities without his Honour disregarding the presumptive circumstance of his prior good character synonymous with his occupation.
The appellant's Counsel emphasised further that the appellant did not have to participate in an ERISP and that although the content of what he said indicated that he was 'a little odd', this did not mean that he offended. Counsel emphasised that the appellant had not heard of the allegations with prior notice and it was not remarkable that his recollection appeared to evolve, or perhaps even improve, as the interview wore on. She argued further that, at least when it came to the assessment of the appellant's evidence, through the ERISP, this Court was in no worse position to assess the appellant's demeanour than the learned Magistrate. In reference to the Magistrate's adverse finding that he lied about not showing the complainant any photo (other than his dog), the appellant's Counsel argued that it would be necessary to find that the appellant lied beyond reasonable doubt for this particular matter to be significant.
These submissions are not persuasive. The circumstance that the appellant exercised his right to participate in questioning which elicited (unsworn or non-affirmed) out of court statements is not a matter in his favour; in the sense of inherently enhancing the plausibility of the account, or accounts, that he gave. Whilst it is true that eccentricity or peculiar behaviour by a defendant does not necessarily equate to guilt, it should not be disregarded either when assessing the Crown case. The circumstances that a man in his mid-40s might ask intrusive personal questions of a 12 year old schoolgirl, including eliciting her and her friends' views of Same Sex Marriage and inquiring into 'relationship' with boys (as multiple prosecution witnesses attested) and at least spoke to the complainant about his bedroom (as the appellant had admitted doing to DC), were matters that weighed in favour of the Crown in establishing the elements of both intentional touching and touching of a sexual nature.
The circumstance that the appellant, in his ERISP, evinced a greater recollection of events as the interview proceeded could not be explained by his being taken by surprise at the nature of the allegation. I accept the Crown's oral submissions at this hearing that through the course of his interview, he came to admit that he knew who the complainant was, that she was in year 7, that he sat close to her and her friends; which admissions represented a significant advance on the indication of his position throughout the earlier stages of that interview. It was a matter which supported the Magistrate's eventual finding that the appellant had initially minimised his involvement and interest in the "three chatty girls" (as the appellant recalled in his ERISP) seated in the backrow of the classroom. Contrary to the appellant's submission, the Crown did not need to prove that the appellant lied in his ERISP beyond reasonable doubt. It was the elements of the offence that required proof to this high standard. Nevertheless, the Magistrate was entitled to use his (considerable) experience and common sense that the appellant did in fact lie and has not been shown to be wrong in that finding. Also, again contrary to the appellant's submission, it is not the case that this Court is placed in an equal position to weigh the appellant's statements in his ERISP as the learned Magistrate. The Magistrate had the significant benefit of assessing the appellant's evidence against all the evidence at trial. This included, but was not limited to, evidence from the complainant and two of her friends about the complainant not having learning needs and the regularity of the appellant's talking to the complainant and her friends in the geography class in a manner that was as disruptive as it was inappropriate.
Relevant also is that, as the Magistrate noted, by his account, the appellant effectively foreclosed the possibility of an alternative hypothesis consistent with innocence: that he accidentally brushed the complainant's thigh or leg.
I also share the Magistrate's concerns regarding the content of some of his explanations in terms of his demeanour in the ERISP. It struck me that in a rather cold fashion, devoid of the empathy that a teacher might have for a student complaining of being touched (even making allowance for a natural defensiveness when confronted with a serious accusation), the appellant's demeanour was such as to suggest initial nonchalance or indifference to the allegation (rather than shock), which veered to a defensive posture engaging in probabilistic reasoning with the interviewing police.
Having seen and listened to the appellant's evidence I consider that the Magistrate was justified in rejecting the credibility of the appellant's evidence and therefore rejecting his account. In so doing, I have additionally taken into account his good character in the particular respect in the two ways that I have identified; although that is not to say that the Magistrate did not already consider closely whether an accused person of his position and status would commit the crime or the presumptive credibility of statements made by the appellant in his ERISP even without explicitly directing himself as to the appellant's good character in the particular respect relied upon by the appellant.
I do not accept that the learned Magistrate did not give himself a Liberato direction. Nor do I accept that he misapplied Liberato. In this regard, there was no debate that a Liberato direction was appropriate, even though the account that the appellant gave was in an ERISP, rather than by testimonial evidence; and even though the substance of his defence was one of bare denial, laced with a lack of recollection; rather than a vigorous competing version of events (such as a 'confession and avoidance' defence of touching the complainant accidentally or not in a 'sexual' way). Arguably there was no real 'conflicting version of events' (Haile v R [2022] NSWCCA 71 per Bell CJ at [2]). Be that as it may, the Magistrate expressly directed himself in accordance with the first two of the conventional limbs of this direction ('if you believe the defendant you must acquit and if you think his account might be true, you must acquit': see now Park v R [2023] NSWCCA 71 at [103]). There is no proper basis for the submission that he simply engaged in a choice between binary alternatives. Having rejected the appellant's evidence and having expressly cast doubt upon the appellant's credibility, the Magistrate plainly did what this direction required his Honour to do: after disbelieving the appellant's denials of touching the complainant in the ERISP, he put them aside and went on to consider the evidence, in its entirety, when determining whether the prosecution discharged its onus of proof beyond reasonable doubt.

Differences between the complainant's account and the student witnesses

The appellant cited differences as between the complainant, MT and AH as to what they saw the appellant did.
True it was that there were differences in how the touching occurred, but they needed to be viewed in context. Counsel for the appellant identified that the highest that the Crown case rose was that the touching occurred for a couple of seconds. AH's evidence in chief was given virtually 14 months after the subject incident (when she had moved away from the school and was residing in another state). With no disrespect to her, having seen her child interview, she struck me as shy and timid with a fairly limited recollection. As Ms Crown pointed out in argument on this appeal, the content of her evidence was not specific: she could barely recall the year the event occurred. I would have no hesitation in generally preferring the evidence of the complainant and MT, individually or in combination, to AH.
The complainant and MT were involved in video interviews within 10 days of each other, and those interviews were significantly closer in time to the alleged incident than AH. Both gave evidence, at least, of the appellant bringing up a chair to sit at the table that both witnesses occupied, at the back of the classroom and of the appellant's rubbing the complainant's left thigh. Both said that the complainant had flung back after he touched her.
Counsel for the appellant emphasised the differences in the accounts of these witnesses of (a) how the appellant came over to the table; (b) by what part of the hand rubbed the complainant; (c) how often the appellant rubbed her on the leg and (d) the sequence of words that the complainant used when discussing the incident with MT after she fell back.
As to the last of these items, being the post-incident discussion, the complainant said that after falling back, she went to the bathroom and returned. She was asked by one of the interviewers what MT said to her, she recalled the latter asked "why did you fling back" and then the complainant recalled telling her. The complainant then recalled MT saying "I saw, I thought that was happening."
MT's evidence of the conversation featured the complainant asking her "Did you see that he rubbed my leg (or thigh)? Did you see that?" (A 127-128). MT responded "Yeah." It must be said that there were variations on this as well (see for example Exhibit 8, A 104)
There are, plainly, differences in these accounts but I do not find them to be that material. To fasten on the details is to fail to separate the woods from the trees. The substance of the evidence, or to use another expression, the core of their evidence, was commonly to assert the appellant's rubbing on the complainants thigh and the latter immediate and substantive falling back.
To the extent that there is conflict in these details, I prefer the evidence of the complainant. Having seen them in their child interviews (which I reiterate was only part of their evidence) I regarded her perceptions as being sharper than MT.
The differences as between the complainant MT and AH do not shake my confidence in the complainant's account. To a substantial degree, MT's evidence corroborates the core of the complainant's account even if there were differences in some details. They were at one on the essential element of the offence: that the appellant used his hand (intentionally) to rub the complainant's left thigh.

The possibility of concoction and a common motive of the corroborating witnesses to lie

In the prosecutor's closing address in the Local Court, it was apparent that she did not rely upon the evidence of ATY. The Magistrate roundly rejected her evidence.
The appellant sought to use this witness' discredited and discarded testimony to argue, firstly, that the circumstance that a student witness would lie was an indication of the possibility of concoction.
During the hearing of this appeal, Counsel for the appellant referred me to a passage of the complainant's child interview (Exhibit 1, A 209 - A 214) where the complainant denied telling anyone else about the incident. It appeared to be suggested that this evidence was, in the light of ATY's evidence, either a lie or a mistake but, regardless, cast doubt upon the complainant's reliability.
These were slender reeds for the appellant in a context where a significant part of his argument was that there were numerous material differences between the complainant's evidence and that of other witnesses called by the prosecutor to corroborate her evidence of being touched; a circumstance which was antithetical to the notion of concoction or contamination in the evidence of prosecution witnesses.
It is also illogical to tie the complainant's credibility to that of a discredited prosecution witness. First, what the complainant said in the passage identified by counsel for the appellant had to be seen in the context of the complainant having told the investigators that she had discussed the incident to at least MT. (In the Local Court hearing, the complainant also said that she had talked to her then best friend). Secondly, the account (in Exhibit 9 in the Local Court hearing) which ATY gave about the complainant informing her of multiple occasions when the appellant had touched her was starkly different from the complainant's account of a single instance of touching - another circumstance antithetical to collaboration between the complainant and ATY. Indeed, as the Crown submitted, the circumstance that the complainant alleged only a single instance of touching indicated that she was not a witness prone to exaggerate or embellish and thereby enhanced her credibility. The complainant never said to anyone that either ATY saw (or was even in a position to see) her being touched by the appellant nor said that she had confided the incident to ATY.
Further, it might be noted that ATY did not suggest that she had conferred with MT or AH, or vice versa. I note further that it was not squarely put to MT and AH in cross-examination, in effect, that they were (only) giving accounts of what they were told what happened; not what they saw; and both witnesses adhered to their evidence that they had seen the touching. The Magistrate, who saw and heard this evidence, was entitled to accept it.
Secondly, the appellant submitted that because ATY had a motive to lie - to try to help the complainant by corroborating her complaint - the other friends (MT and AH) the prosecution relied upon to corroborate the complainant's evidence had a similar motive to lie. This submission represented another significant and unwarranted leap of logic. This is not because the rule of practice in Browne v Dunn required the appellant's hearing Counsel to actually put the proposition to MT and AH each had a motive to lie (to help the complainant); even though the point would have been fairer to those witnesses and thereby more persuasive. For the reasons explained by the High Court in Hofer v The Queen (2021) 274 CLR 357, great care would have had to be taken before any inference adverse to the appellant could be drawn from his Counsel's omission to put to the witnesses that they were motivated to lie. The short point is that there was an evidentiary vacuum for the suggestion. This is especially so in a situation where, as the appellant's Counsel at the hearing so strongly emphasised, there were 'four different stories.' It is strange that one prosecution's witness motivation to lie could be imputed to other witnesses but still result in differences in evidence. There is no basis for inferring motive of one or more witnesses based upon association with another. That is especially so where there was no evidence to suggest that any of the complainant, MT or AH regarded ATY as their close friends, as distinct from acquaintances, whatever the latter's subjective or internalised belief in the status of their respective relations.
The appellant's submissions about concoction and a common motive to lie as between the witnesses that the prosecutor called to corroborate the complainant are rejected. I agree with the Magistrate's view that the evidence of ATY did not impact negatively on the evidence of the complainant, MT or AH.

The content and significance of DC's evidence

The appellant placed much importance upon DC's evidence in the appeal. It is pertinent to now tease that evidence out in greater detail.
It was an agreed fact in the Local Court (Exhibit 16) that on 24 September 2019, DC, the teacher of the Year 7 geography class attended by the complainant, raised an incident with the school principal; following an incident occurring the previous day (23 September). DC's contemporaneous written record of the incident was Exhibit 6 in the Local Court hearing.
Another agreed fact was that it was DC's written report which resulted in the complainant being asked to write an incident report (which was Exhibit 3 in the Local Court hearing).
In the main part of her report (paragraph 4), DC complained about the appellant's sitting between two double desks of female students and talking to them for the whole time the movie (which she indicated was being played for the last quarter of the class) was playing. She wrote that the appellant's conduct irritated her and took the expedient (in an attempt to get the students to keep quiet and discouraging the appellant's talking to them) to ask what he had been talking about to them. According to DC, his response was that he was asking the girls (whose names were not identified in the report) about what apps they used and what their bedrooms looked like.
Paragraph 4 however, is to be viewed contextually with the remainder of the report which signified that DC was not just perturbed about the appellant's conduct on 23 September. At paragraph 1, she specifically alluded to his being a regular learner support teacher during the particular school term. At paragraph 2, she referred to another incident, on a different date to 23 September, when she was displeased with him. At paragraph 3, it is plain that she was also referring to him (negatively) in a general sense, that is to say, not tied, or limited to, his behaviour manifested in an incident on 23 September. It can be inferred from paragraphs 1-3 (incl) that, even prior to the specific incident she described in paragraph 4, she was conveying to the school principal her view of the appellant being an unhelpful influence in her classroom. This was, presumably, no small thing for a teacher in her position to do about someone whose role was partly to provide assistance to her.
In her evidence in chief in the hearing, DC elaborated upon what she wrote in that incident report. This evidence was given (14 July 2022) nearly 3 years after she had written the incident report form. She explained that the class on 23 September 2019 dealt with a difficult topic (landscapes and landforms) and as an incentive to the students, she promised to allow them to watch the film 'Finding Nemo'. She identified the appellant as sitting at the back of the classroom in the final row, up against the wall; in between two rows. She recalled getting angry with him for leaning in towards girls getting in the back row, as he was "leaning in towards them, talking to them." She went on to say that she recalled him sitting on a chair, and leaning across to talk. This was in the direction of the row closer to the cabinet in the back corner of the room (an apparent reference to the same cupboard, or 'wardrobe,' that the complainant said her row was in close proximity to in Exhibit 4).
Pausing here, DC's evidence was corroborative of the complainant's evidence to the extent that at least there was one occasion of the appellant placing his chair alongside two female students in the back row of the classroom (although she recalled that it was on the wall side), admitting to discussion about what apps they liked and discussion about bedrooms. She also said that it was the girls who were in the two back rows who were asked to prepare the incident reports. If not by name, this was a means of identifying the complainant and the other student witnesses called by the prosecution.
It is to be recalled that it was not the complainant's evidence, nor that of her school friends, that the appellant's ingratiating and intrusive questioning towards her or her friends occurred on a single date. The complainant's incident report form (Exhibit 3) referred to his conduct occurring "always" which word can be taken, in its context, to mean many times and, even more specifically, many times other than on a single date. The complainant had also said (consistently with what she wrote in the incident report form) in her child interview that the appellant had regularly approached her and her friends (Exhibit 2, A86). She was alluding to a pattern, which the prosecution relied upon to place the alleged offending in the context to form part of the proof of the nature of the relationship in the lead up to the alleged offending.
DC's evidence was not inconsistent with any of this evidence. Put another way, to the extent that in paragraph 4 of her own incident report form, DC was indirectly identifying the appellant as having been continually talking or laughing to the four girls (including the complainant) on 23 September, she was not thereby implicitly excluding the possibility that on dates other than 23 September the appellant had also talked and laughed to the same girls.
From DC's evidence, the appellant submitted that there were irreconcilable inconsistencies with the evidence of the complainant and the student witnesses. These were that: 1. there was only one incident in DC's geography class during which the appellant sat between the two rows of desks when the appellant spoke to the complainant and her friends; 2. It was the movie 'Finding Nemo' that was played; not a film about Africa; 3. DC asked the girls to stop talking (and laughing) several times; 4. DC did not see anything that was physically inappropriate; 5. It was only when the bell went, after the lesson finished, that the students (including the complainant) left.
Counsel for the appellant emphatically noted point (2). She was especially critical that the Magistrate 'accepted without reservation' the prosecutor's submission that DC was referring to a different incident to the one alleged by the complainant and her friends since this was not founded upon evidence. His Honour did, in fact, determine that he could not be satisfied that DC was recalling the incident of the actual day; but was, rather, recalling the incident which triggered the school investigation; with the incident (which DC recalled) occurring well after the touching had occurred. His Honour found that aside from potentially discussing the touching with her friends, the complainant did not immediately report it to school authorities. (13/10/22, T 31-32).
I do not find the appellant's argument about so-called inconsistencies between DC's evidence and that of the prosecution witnesses, and most importantly, the complainant, to be persuasive.
Fundamentally, I see no error in his Honour forming the view that the incident occurred on a different date to the incident DC described.
The Agreed Fact number 8 did not preclude such a finding. It only (relevantly) indicated that after a classroom incident occurred on 23 September 2019, and that after DC's incident report, the complainant was asked to write an incident report. It was not the case, however, that it was the complainant's report of (or complaint about) being touched by the appellant on 23 September which triggered DC's email to the school principal which, in turn, triggered the principal's request that the complainant prepare her written incident form.
As I read the complainant's incident report form, it was notable that the first thing that the complainant mentioned, when referring to the appellant was his tendency to sit with her friends, MT and AH, and discuss with them the personal matters referred to. This aspect of her written report was not inconsistent with what DC had stated in her email to the school principal.
When the complainant asserted in her incident report form that the appellant had put his hand on her knee or leg, she did not expressly assert a date when that particular event occurred; nor, in my view, was there anything else which impliedly indicated that this event was tied to the other circumstances DC had observed which prompted the latter to write her incident report form.
DC's note certainly nominated one specific incident of the appellant's disruptive behaviour, occurring on 23 September 2019, but her note did not foreclose the possibility that on other occasions in class, the appellant engaged in engaging in close verbal communication (and committing the offence) with the complainant on another date.
Contrary, perhaps, to what was insinuated by the appellant, it was not the case that the prosecution was tied to proof of the offence as occurring on 23 September 2019. The Court Attendance Notice (page 11 of Exhibit A in the hearing of this appeal) indicated a date range, and no submissions were expressed, at least overtly, that this was a situation where the materiality of a particular date to the offence had been put in issue by the parties' conduct. It was therefore not incumbent upon the prosecution to prove beyond reasonable doubt that the offence occurred on 23 September 2019.
It was open to his Honour to find that the chance reporting by DC of an incident of unprofessional behaviour by the appellant (in the context of her general dissatisfaction with him), as a learner teacher, led to the complainant and other girls being asked to complete an incident report which supported DC's complaint. In the course of her report, the complainant, then only 12 years of age (and perhaps not fully appreciating the gravity of what she alleged had occurred to her) mentioned, in passing, that the appellant had touched her. This was another manifestation of unprofessional or inappropriate conduct by the appellant; although of a qualitatively more serious kind.
Satisfied, as I am, that the learned Magistrate did not commit error in attributing a different date to when the incident occurred to 23 September 2019, the suggested 'irreconcilable inconsistencies' fall away. The differences between DC's observations and the accounts of the complainant and her friends could only be inconsistent on the assumed premise that the events DC and the complainant and her friends were describing occurred on the same day. Contrary to the inconsistency posited in (1), DC did not say, and no inference could be drawn from the evidence that she gave, that: (a) it was only on 23 September 2019 that the four girls, who were subsequently asked to make reports of an incident occurring on that day, had sat on the back two desks and/or (b) it was only on 23 September 2019 that she observed the appellant moving close to them, including the use of his chair, and chatting to them (and the complainant in particular).
Although a little out of order, I refer to another significant argument, raised on the appellant's behalf which represents an amalgam of points already considered. In her oral argument, Counsel for the appellant submitted that there was a reasonable possibility that if there was any touching at all, it was innocent; and that it was only as time wore on that the complainant's recollections became distorted so what was only a possibility of rubbing became a probability of rubbing (per Arizabaleta v R [2023] NSWCCA 217 per Leeming JA at [102]-[108]). There were certain strands to this argument. First, there was evidence from AH that there was only a touch; not a rub. The appellant was trying only to build a rapport with the complainant and her friends. When he disclaimed any notion of accidental touching, he was in fact mistaken (and his recollections had gotten distorted): in the midst of good-humoured banter, he had forgotten that it was only accidental. DC gave evidence of seeing students being disrupted.
As indicated none of these matters were persuasive either. The argument depends upon premises I have already rejected: (a) that DC was referring to the same incident about which the complainant complained; (b) that AH's evidence was more reliable than that of the complainant (and MT). The argument itself would diminish the reliability of the appellant's account in the ERISP where he was emphatic in his denial of any touching at all. The complainant did not say that the touching occurred in a context of bouts of laughing, as if, according to what she said, he touched her as something of a joke.
The argument also ignores the most probative evidence, being that of the immediacy of the complainant's complaint to MT; and MT's corroboration of actual rubbing.
Whilst I accept, with respect, as a truism, Leeming JA's references to frail human memory and the possibility of subsequent distortion, it is also axiomatic, I think, that humans can recall the core of certain material events without necessary recall of all the surrounding details. The Crown did not simply rely upon the complainant's evidence, impressive though the Magistrate found that it was. As I have indicated, amongst other things, it relied upon the immediacy of the complaint and the substantial - although not complete - corroboration of MT.

Conclusion

None of the grounds of suggested error by the learned Magistrate are established.
The appeal against conviction is dismissed and the conviction is affirmed.

Endnote

See also Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 per Meagher JA (Gleeson JA and Simpson AJA agreeing) at [25]

Amendments 01 November 2023 - Formatting amendment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2023

(2021) 105 NSWLR 236

(2021) 106 NSWLR 430

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