Both of these matters are conviction appeals brought pursuant to section 18 of the Crimes (Appeal and Review) Act ("the CAR Act"). The matter of Pettit was heard by the court on 22 July 2021 and the matter of Riley was heard by the court on 26 July 2021. Both matters were adjourned to 4 August 2021 for judgment.
It is convenient to deal with the matters together in one judgement due to certain similarities. They have in common the issue as to the nature of the section 18 appeal. They are both matters of alleged sexual touching. The key point in the matter of Pettit is whether, as the magistrate decided, it is open on the evidence to draw the inference, or otherwise to accept the complainant's version, that the offending conduct occurred. The key point in the matter of Riley is whether the evidence of the appellant should be rejected and the evidence of the complainant making out the offence should be accepted.
Section 18
In both cases, the appellant submitted that it was not necessary for the appellant to satisfy the court of any error on the part of the magistrate. In the case of Riley the appellant relied on Vince Sunter v District Court of NSW [2008] NSWCA 313. At [27] of that judgment in the reasons of Allsop P the view is clearly expressed that "the question to be addressed on such an appeal is 'not whether error is shown, but whether the District Court judge is satisfied beyond reasonable doubt of the guilt of the claimant'". The case arose from a section 18 conviction appeal.
Gianoutsos v Glykis [2006] NSWCA 137 was an appeal from the making of an apprehended violence order which is approached as a section 18 appeal. It was held in that case that a section 18 appeal was a rehearing and not a hearing de novo. There is no argument as to that in the present appeals. The decision went on however to consider the nature of that rehearing and reference was made by analogy to section 5AA of the Criminal Appeal Act which provided for a rehearing rather than a hearing de novo. In Camilleri's Stock Feeds (1993) 32 NSWLR 683 it was said that what that required was for the appeal court "having considered all of the evidence then finally before it to resolve for itself afresh the ultimate issue for decision".
Subsequent to the decision of Camilleri the section was amended to allow for the appeal to be by way of rehearing on the original evidence and any given before the appeal court and provided for leave to adduce fresh additional or substituted evidence. It was said in Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 (see [35] of Gianoutsos) that this confirmed the judgment of Camilleri. In Cooper it was said that a section 5AA appeal is not restricted to the determination of whether the decision of the court below was infected with error. Whether that means that once error is established the matter could then be redetermined rather than needing to be remitted is not clear. McClellan CJ at CL then notes at [36] that a section 18 hearing is not a hearing de novo.
McClellan CJ at CL at [37] then made reference to Allesch v Maunz (2000) 203 CLR 172 and the appeal provisions of the Family Law Act for the point that the difference between a rehearing and a hearing de novo is that unless some statutory provision indicates the appeal court's powers may be exercised regardless of error then error needs to be shown whether it be legal factual or discretionary. McClellan CJ in CL then considered that the appeal act legislation does indicate the District Court's appellate powers may be exercised regardless of error. This was because section 20 provides that the District Court may set aside a conviction or dismiss the appeal and is not limited to ordering fresh proceedings (though no mention was made to the fact that s20 does not allow for remittal, something McClellan CJ in CL was clearly aware of). His Honour concluded that where there is a power to rehear the issues at trial but no power to remit back to the original court then the powers under section 18 are not dependent on the finding of error; see at [39]. A counter to this may be that the power to redetermine the matter arises only if the error was to be found.
Since Gianoutsos was decided there have been a number of cases supporting the view that error does need to be found.
In Engelbrecht v DPP [2016] NSWCA 290 (an appeal under s17) which was decided after Gianoutsos, and after section 18 had been amended appears the following passage at [89], which adopts the reasoning from Charara v R [2006] NSWCCA 244 (a section 18 case) which was decided on the same legislation as Gianoutsos but with a different outcome (and the case in turn refers to Dyason v Butterworth [2015] NSWCA 52, a section 18 case):
The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows:[26] As 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] - [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).
[27] The approach to be taken on as 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 ('McKellar') (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The 'judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court': Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).
[28] The powers of the District Court on as 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ."
In Vok v DPP [2019] NSWCA 242 at [29] the Court of Appeal stated in respect of a conviction appeal that the nature of the appellate function of the District Court is as stated at [5] of AG v DPP [2015] NSWCA 218 and at 10 of Bandara v DPP [2016] NSWCA 140. The first of those passages set out what was said to be three well established principles as follows:
(1) the appeal, described as "by way of rehearing", does not involve a hearing de novo (or fresh trial) as if the original trial had not occurred;
(2) the appeal is not an appeal "in the strict sense", so as to be limited to the evidence before the magistrate, to be determined on the law as it then applied; and
(3) the judge on appeal is bound to observe the "natural limitations" which arise where the appeal is conducted by reference to a documentary record.
The second passage, being from Bandara was as follows:
The appeal to the District Court is not a hearing de novo, but is analogous to a civil appeal under s 75A of the Supreme Court Act 1970 (NSW), insofar as it is an appeal by way of rehearing, and the judge is to form his or her own judgment on the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court: see Crimes (Appeal and Review) Act 2001 (NSW), s 18 and Dyason v Butterworth [2015] NSWCA 52 at [26]-[28] and the cases there referred to.
The conclusion in Vok at [29] as to the challenge to the appeal decision was to say:
More fundamentally, contrary to the assertion made by this ground, her Honour did not uphold the conviction "based on" the decision of the magistrate. As ss 18 to 20 of the CAR Act required, the appeal was conducted by reference to the oral evidence given in the Local Court, her Honour recording that she was bound to observe the "natural limitations" on fact-finding, including those arising from her not having seen or heard Ms Stead give evidence: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]. In so proceeding, her Honour did not misconceive the nature of the appellate function of the District Court: as to which see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [5]; and Bandara v Director of Public Prosecutions [2016] NSWCA 140 at 10.
Basten JA in AG v DPP [2015] NSWCA 218 considers error is required. In AG v DPP only Basten JA expressed this view. Simpson J expressed the view at [85] that it was not necessary for error to be shown. One factor contributing to the conclusion of Simpson J was that the District Court did not have power to remit the matter.
The appeal process under section 18 has been described as being akin to an appeal to the Supreme Court under section 75A of the Supreme Court Act, see Dyason at [27]. Both section 18 and section 75A state that the appeal is to be by way of rehearing and both allow for the receiving of further evidence. One point of difference is the way in which the appeals may be determined. By section 20 of the CAR Act an appeal against conviction may be determined by setting aside the conviction, dismissing the appeal, and only if it is an appeal under section 12 can be remitted to the District Court. Section 12 appeals are those which require leave which does not apply in the present cases because there was no absence of either of the appellants on the occasion of their conviction. In contrast, by section s106 SCA the Supreme Court may in certain circumstances remit the matter to the court below; the District Court cannot in cases such as the present.
The nature of a section 75A appeal is discussed in the notes to the section in Ritchie's Uniform Civil Procedure. There it is noted that the appellant carries the onus of showing the decision ought to be reversed. It is also noted that the basic appeal function involves a fundamental principle of determining whether the appealed decision was correct, that is neither the result of "some legal factual or discretionary error", nor attended by procedural error, nor to simply assess whether the decision was reasonably open, citing amongst others Fox v Percy. This standard was described by Justice Gageler in Minister for Immigration and Border protection v SZVFW (2018) 163 ALD 1 as the "correctness" standard. The appeal court must note the advantage of the trial judge having witnessed the giving of evidence and the limitations on even meticulously expressed reasons.
With one reservation, it can be said that the preponderance of more recent authority is that error needs to be found in a section 18 appeal. The reservation referred to is the clear judgment to the contrary of Simpson J in AG v DPP, decided in 2015, and notably, citing in support of that view Charara, a case elsewhere relied on for the opposing view. It also remains the case that there would appear to be unresolved conflicting authority on this point.
The position was put well by Grant DCJ in KD v R [2020] NSWDC 237 who, after considering the authorities concluded:
[17] The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v DPP 2015 NSWCA 218. I proceed on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v DPP [2016] NSWCA 140 at [10], and Engelbrecht v DPP [2016] NSWCA 290 at [91]. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellant judge that the trial judge was wrong and should be corrected. Put negatively it means that the judgment of the trial judge will not be set aside unless the appellant judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of error in the ordinary meaning of that term: AG at [34] per Basten JA.
In Fox v Percy the following was said:
[22] The nature of the ''rehearing'' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The ''rehearing'' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
[23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ''give the judgment which in its opinion ought to have been given in the first instance'' (32). On the other, it must, of necessity, observe the ''natural limitations'' that exist in the case of any appellate court
proceeding wholly or substantially on the record (33). These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the ''feeling'' of a case which an appellate court, reading the transcript, cannot always fully share (34). Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Underlining and bold added).
The underlined portion of the above passage suggests no error is necessary. The bolded sentence and the sentence that follows, suggests that a full rehearing (in the sense of what might be termed an overall reassessment of the evidence) does not take place so that the focus is on finding error.
Recently the NSWCA decided DK v DPP [2021] NSWCA 134. That case considered the question of the nature of an appeal under section 23(1) of the CAR Act. The question was whether the section required the District Court to exercise the sentencing discretion afresh without the need for the prosecution to establish error in the decision of the magistrate. The Court referred to the decision of Engelbrecht referred to above and Dyason also noted above. In short it was held that such an appeal was error based because, (I would note as with section 18) there is not an unqualified right to adduce fresh evidence. Secondly because (although not applicable to a s18 appeal) of the common law's antagonism to the injustice or unfairness flowing from a second sentencing exercise. It was also held that the fact that section 27 allows for a dismissal of the appeal was an indicator of the need for error. The logic in that regard as I understand it is that absent the power to dismiss there would need to be some consideration of the appropriate sentence afresh by the appeal court. Relevantly to the present discussion, DK, albeit in connection with a different section to section 18, adopts the reasoning of Engelbrecht.
The position remains that there are two conflicting lines of authority as to the approach that should be taken in these cases. In earlier judgments on this topic I have noted the different views of the Court of Appeal and adopted the view that error is necessary to be found. The above discussion persuades me that this is the correct view on the "error" line of authority, but suffers also from being an overstatement. The point being made by the "error" line of authority may go no further than saying that the appeal court needs to be satisfied by the appellant that the decision below for some reason was not correct. On the "no need for error" approach, the decision would only be disturbed if the appellant court came to a different conclusion, suggesting in any event that there has been an error by the magistrate of the type required by the "error" line of authority.
The approach taken in determining the two current appeals is:
21.1. That the matters proceed as a rehearing on the evidence below, with any further evidence for which leave was granted;
21.2. The advantage of the magistrate in evaluating witnesses' credibility, and obtaining a feeling for the case must be observed;
21.3. To determine whether the appealed decision was correct, that is neither the result of "some legal factual or discretionary error", nor attended by procedural error, and noting that the term "error" has no precise meaning. It refers broadly to the satisfaction of the appellant judge that the trial judge was wrong and should be corrected.
21.4. To not approach the matter as merely being an assessment as to whether the decision was reasonably open.
[2]
PETTIT
The evidence on this appeal consisted of the exhibits before the Local Court and the transcript of the evidence and of the magistrates' reasons. There was no additional evidence sought to be led. The exhibits included CCTV footage of the actual alleged incident, the playing of the audio visual of the police interview with the complainant as well as of the ERISP with the appellant, an initial interview with the complainant recorded by body worn video, a number of photographs, and a transcript of a roadside interview with the appellant.
The alleged offence is of acting in contravention to section 66DB(a) of the Crimes Act, of intentionally sexually touching a child older than 10 and less than 16 years of age. There was no issue as to the age of the child complainant. The case for the Crown is best set out in the interview of the complainant who was born on 20 March 2009. The alleged offence is said to have occurred on 14 September 2019 so that she was 10 ½ years old at the time. On 14 September 2019 she attended the Toormina Shopping Centre with her mother and her older sister. They stopped to get a milkshake but the complainant did not want one and so with her mother's permission headed to the Best and Less store. On the way there she saw a man who she said stared at her who was coming from the opposite direction and walked past her and who it transpires is the appellant. The CCTV footage shows the appellant and the complainant walking past each other. The appellant was walking from the entrance of the centre so it appeared that he had just arrived though on his version presented by way of the ERISP he had been at the Toormina Shopping Centre and had gone to his car and was returning to the centre. The CCTV footage does not show an obvious gawking or leering by the appellant at the complainant but that does not mean that the appellant was not staring or looking at the complainant. One of the points made by the appellant on this appeal is that the finding of guilt reflects a predisposition to the characterisation of the appellant's behaviour. This may be one example; a young girl sees an older middle-aged man looking at her and describes it as staring (1). The objective CCTV footage shows that it is entirely possible that he looked at her but that this lasted for at best mere seconds and involved no head turning.
The footage then shows the complainant entering the Best and Less store and the appellant can be seen continuing down the walkway until he reaches an intersection in the centre where he appears to be undecided as to where to go or what to do. He decides to walk back in the same direction from which he had come and enters the Best and Less store (2). The CCTV footage records him entering the store and walking initially towards the back and the left-hand side of the store. He is then seen coming back towards the front of the store on the right-hand side. At the same time the complainant can be seen looking at clothing on the right-hand side of the store. The store is laid out in something of a rows and columns format with racks of clothing against the walls and between the columns and rows. Whilst the complainant is looking at clothing the appellant can be seen walking amongst the aisles in a seemingly haphazard or ad hoc manner. The appellant says he was just meandering about the shop on his way to the exit. The implicit or not express assertion of the Crown is that the appellant is looking for the complainant and in fact sees her and makes his way to where she is looking at clothes (3). The magistrate found this conduct of the appellant inconsistent with someone leaving the store. On this point the appellant notes that the camera is on the ceiling so that a "Birdseye view" is given of these events. The complainant at age 10 was not particularly tall. She does not appear to be taller than the racks of clothes. On that material it would in my view be somewhat speculative to say when the appellant was able to see her so as to make his way to her in the haphazard manner shown in the CCTV. There is a rider to this view, which is discussed at [72] below.
The CCTV footage shows the appellant entering the same row where the complainant is looking at clothes. The appellant walks towards the complainant who whilst looking at clothes is also moving slightly towards the appellant. The CCTV footage shows the appellant passing the complainant with the complainant on his left hand side. The appellant steps past the complainant by taking a step with his left foot, and turning his back slightly towards the complainant, and in the process his left shoulder turns, and has the appearance of dipping, and it is his left hand that trails behind him and comes into contact with the complainant. There is no dispute that in this process the appellant's left hand comes into contact with the complainant's right buttock area. The actual contact of hand to buttock is not caught by the CCTV. The film does allow for the conclusion that any touching was momentary. The complainant described the touching as being a grab (4) which I take to mean a motion of the hand requiring the opposing thumb to move towards the fingers. There is no suggestion of the complainant actually seeing this and it is her description of the momentary touching felt by her. The evidence of the complainant about the manner of grabbing as shown on the body worn video was of her thumb being below the fingers. It was submitted both before the magistrate and on the appeal that would require an act of contortion and is therefore very unlikely. I do not consider this to be a point that assists the appellant. It seems to me she was describing in a general way while sitting on a couch at her initial interview the act of a grab without it amounting to an assertion as particular as the grab occurred with the thumb below the fingers.
Contact having occurred the appellant turns towards the complainant and speaks to her. There is no dispute that he apologised. What is in dispute is what else he said at that time. The sequence of events is the appellant turns towards the complainant, the complainant looks startled and looks at him and then moves around the corner of the rack of clothes and the appellant follows her. The complainant's evidence is that he said to her "sorry I couldn't help it, you're too, just too pretty" (5).
The complainant says the appellant then turned away and she ran back to where her mother was at Donut King. The CCTV shows the appellant promptly leaving the store and heading in the opposite direction of the complainant, towards the exit and his car (6). At Q148 Of the complainant's interview what she said to her mother was to the effect that she went into Best and Less and "a guy", "he grabbed my butt". The complainant did not say to her mother initially (at Donut King) any words spoken by the appellant. The first time that is said was alleged to be in the car with her mother when leaving the centre.
There has been an immediate complaint to the mother as to the alleged grabbing, and a very soon after complaint by the complainant, on her version of events accepted by the magistrate, of the words that were spoken and which are in dispute. Later that day the police attended at the home of the complainant and an interview was recorded on body worn video and that was before the court. Some argument was put as to the manner of this interview creating a possibility of some contamination of the description of the event by the complainant and emergence of the word "squeeze" in addition to grab, and also as to the complainant's mother's evidence as to what the complainant said to her in the car.
The appellant consented to an electronically recorded interview. He refers to the contact with the complainant as being a brushing past. He says at Q64 that he attempted to apologise to her and that she ran away. At Q71 he says he cannot recall the exact words of his apology. At Q107 he again says he made an apology and that she ran off. At Q111 he says he decided to leave and he was already leaving and gives a series of answers the effect of which is to say he thought it was better if he left because the complainant was already distressed and he was distressed and he did not want to aggravate the situation he actually felt bad about. There was no real submission about this but to brush past a person in a shop hardly seems a matter that would cause a person to feel bad. Though perhaps this response can reasonably be attributed to the apparent distress shown by the complainant.
When the words alleged to have been spoken by the appellant were put to him at Q787 he denied it by saying "I don't believe I did I just attempted to apologise to her". At Q789 it was put to him again and whether he could say anything like that to her, being a reference to "I couldn't help myself you're just too pretty", and he states no.
In the course of the interview the appellant is asked what he was doing that day starting at Q78. Without detailing all the activities recounted, he had taken his mother to a 9.30am hair appointment at a private residence in Toormina and he was told it would take about two hours so he went to the Toormina shopping centre. First, he went to Woolworths and purchased some items and then bought a muffin which he ate near his car. He then went to Aldi and bought some items and then walked through Kmart. He went to Coles thinking of looking at some specials but did not buy anything that he recalls. He then went back to the car and decided to have a quick look at going to Woolworths again. Before he went to Woolworths he decided to turn back and go to Best and Less which is what is seen on the CCTV. It follows that his version of events matches up with the CCTV namely he had been back to his car once or twice and was coming back from the car, one would infer to fill some time before picking his mother up, when he changes his mind to go to Best and Less instead of Woolworths. In what is perhaps a weak part of the appellant case he says that he was interested to see what the price of women's underwear was as his wife sometimes likes to do that and there may be specials (7). After the brushing incident he decided to leave. As noted above he did not want there to be an incident. The time of departure is consistent with the need to collect his mother by about 1130.
All of the above material was before the magistrate, as was a curbside interview the police had conducted with the appellant. There was then cross examination of the complainant at the hearing recorded in the transcript which is before the court. I need to take into account the advantage that the magistrate has had of seeing the witnesses (specifically the complainant) give their evidence. He accepts the evidence of the complainant. Her evidence reads well. The manner in which she demonstrated in the body worn video the "grab" is put at transcript page 11 of 5 August 2020 of having her forefingers facing up and her thumb underneath as described above. She then said it was like grabbing a ball and did not or was not able to specify whether the fingers felt on the top part of the bottom or the bottom part of her bottom which is an answer consistent with the view expressed above.
At T12 was this series of questions and answers:
Q. what I am suggesting to you is that he didn't say the words "I'm sorry you're just too pretty I couldn't help it", do you agree or disagree with that?
A. I disagree that he didn't just say that.
Q. You couldn't be mistaken about the words that he said is there a possibility that you made an honest mistake about what he said to you then?
A. I don't think I've mistaken it, like at all.
The complainant's mother gave evidence that when the complainant returned from Best and Less the complainant looked a bit distressed; the mother saw the complainant running toward her and the complainant burst into tears very distressed. She asked what was wrong and the complainant said "a man touched me on-on the bum".
There are two points to be made about that evidence. The first is there is no reference to the comment about being too pretty. The second is that there is no dispute in this case that the appellant did touch the complainant on the region of her "bum".
The first time the words attributed to the appellant are spoken by the complainant is when she is with her mother in the car going home having reported the matter to Best and Less. The mother says that when the complainant calmed down she said she was looking at the clothes, a man grabbed her on the bum and he said "sorry I couldn't help myself you're so pretty".
Two points emerge there. One is the assertion by the complainant of the words spoken by the appellant occurs very close to the happening of the event. The second is that the original words spoken on the mother's account by the complainant in her complaint have changed from a touch on the bum to a grab on the bum.
Both the police officers involved were cross-examined. Perhaps the most notable point about the investigation is how involved and compliant the appellant was. Not only did he forgo his right to silence but he readily conceded that the video which does not show his hand touching the complainant can be consistent with somebody grabbing the complainant on the butt. He agreed that it appeared that his left shoulder dipped towards her as if he was reaching down to grab her on the butt. He agreed to a forensic examination. He was very eager for the matter to be resolved.
The issue of the dipping shoulder is one where the birds eye view is relevant and how that might to pick something when somebody turns to pass a person which may in itself conceivably appear to be a dip. Quite reasonably that is the way the Crown was putting its case.
[3]
The magistrates reasons
The magistrate began with directions as to the standard of proof being beyond reasonable doubt and that the onus rests always on the Crown. He noted that there was no burden or obligation on the appellant. He recounted the evidence in line with what I have said above. The magistrate gives a good summary of the ERISP. It notes the appellant's denial of looking at the complainant when they passed each other initially and his denial of grabbing her on the buttock. It recounts his allowance that the hand could have touched her buttocks which he plainly concedes in my view. It notes the appellant's denial of making the apology in the terms alleged by the complainant and that the appellant says he just attempted to apologise. The summary notes the flat denial of the words alleged. It also notes his denial of looking for the complainant.
The magistrate then gave himself a good character direction. He then properly gave himself the direction that if he accepted the appellant's version or found it might be true relating to the touching (that is the version of it being incidental) then he would find a not guilty verdict. The magistrate further stated the same result arises if the appellant's version is reasonably possible. Further, he directed himself that if he does not accept the appellant's evidence then he needs to put that to one side and assess the prosecution case to determine whether it has been made out beyond reasonable doubt.
The magistrate addressed the issue of the mechanics of the alleged grab and expressed the view that it is conceivable the complainant was demonstrating the action of a pinch or a grab in general terms. I have heard the submissions in this regard and read the material in the court below and I concur with the magistrate on that point. What occurred in the body worn video of that description was in my view a general demonstration and not a purported re-creation of any great particularity.
The magistrate of course had the benefit of seeing the complainant being cross-examined and I did not. He accepted her as a witness of truth. That is consistent with my impression having seen the body worn video and having read the transcript of the interview. I proceed on the basis that the complainant was a compelling witness and was truthful. She made an immediate complaint. The judgment does not contain a complaint direction and I would note that the evidence of the complaint goes to the credibility of the complainant in the circumstances and also can be taken as supporting the truth of the allegation which I infer the magistrate did. I do not consider the use of the word "grab" after the initial use of the word "touched" detracts from the complainant's evidence.
Having assessed the complainant in the most favourable terms the magistrate then albeit in a much briefer fashion made a favourable assessment of the appellant saying that he seemed to answer the questions in a matter-of-fact way, responding to each question as it came about and noting that he had the benefit of a good character direction. The appellant relied on this quite heavily in this appeal noting the degree of cooperation and concessions made by the appellant.
The magistrate then turned to the CCTV and found that the footage up to the point of the appellant entering the Best and Less store was not inconsistent with the events as described by either the complainant or the appellant. Notably this includes the complainant's allegation of staring; that is, the magistrate considered this CCTV footage supported the version of both the appellant and the complainant. The height of it for the prosecution case was to say it neither assisted nor detracted from the complainant's assertion that the appellant looked or glanced at her. This would suggest no express finding that the appellant stared at the complainant as suggested by the complainant (see Q57 of the complainant's interview). I note also that it is agreed on this appeal that the appellant did not turn his head to look at the complainant, as was suggested to him, and with which he agreed, at Q762 of the ERISP. The magistrate then turned to the CCTV footage from inside the store. He describes the footage up to the point where it is said the CCTV depicts the appellant's left shoulder dropping. He then goes back to the movements of the appellant before that point and says that the movement of the appellant into the girl's section of the store is crucial footage as it goes both to a factor of assessing the appellant's evidence in his ERISP and also to the issue of whether the offence can be made out beyond reasonable doubt.
At T6.38 of 15 January 2021, the magistrate found that the route through the girls section is not consistent with someone leaving the store and further involved a number of turns which he said was completely inconsistent with the contention by the appellant (presumably of leaving the store) and was consistent with a purposeful movement towards the complainant (A). Next it was said the dip of the shoulder is consistent with a person reaching lower with his left hand in an intentional way (B). Next he says the appellant's movements after the touching are not consistent with it being incidental. The magistrate found the movement of looking down at the complainant is consistent with the words the complainant says were spoken as opposed to an apology (what might be called a bare apology as opposed to the words alleged by the complainant) (C). Lastly the magistrate says the complainant's reaction is directly consistent with the words spoken (D). The magistrate concluded that the reaction and distress of the complainant relates to the words spoken as much as to the touching. He stated "clearly if I find that the words asserted by the complainant were said then that relates directly to evidence of an intentional sexual touching" (E). The magistrate found that the words were said, and noted the immediate complaint consistent with the alleged offence. The magistrate then says the CCTV is not consistent with the version put by the appellant and his version is not reasonably possible.
Pausing there it can be seen that the magistrate has rejected the appellant case. There has not been with respect to the magistrate a consideration of other possible inferences that may be drawn. There is not an inference direction in express terms, nor a direction as to circumstantial evidence, though my view is the magistrate was clearly conscious of those principles given his conclusion that the appellant's version of events was not reasonably possible. The magistrate states he is persuaded that it (the touching) was not an honest mistake and was intentional and then concludes he is satisfied beyond reasonable doubt that it was intentional and that the appellant said the words alleged "I'm sorry, "you're just too pretty".
The essence of the inference direction found in the Criminal Trials bench book, is as follows:
48.1. Inferences may be drawn from direct evidence;
48.2. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
48.3. In a criminal trial, because the fact finder must be satisfied of the guilt of the appellant beyond reasonable doubt, that means the fact finder should be extremely careful about drawing any inference. Any possible inference must be examined to ensure that it is a justifiable inference.
48.4. In the context of a criminal trial an inference should not be drawn from the direct evidence unless it is a rational inference in the circumstances.
The essence of a circumstantial direction, also taken from the Criminal Trials bench book, is as follows:
49.1. In a circumstantial case no individual fact can prove the guilt of the appellant. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the fact finder is asked to reason in a staged approach. The Crown first asks the jury to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the appellant. The jury is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks the jury to find based upon the basic facts is that an appellant person is guilty of the offence charged.
49.2. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the appellant. It is important to approach a circumstantial case by considering and weighing, as a whole, all the facts found to be established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the appellant, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the appellant's guilt.
49.3. The correct approach is first to determine what facts are established by the evidence. You then consider all of those facts together as a whole and ask whether you can conclude from those facts that the appellant is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because the finder of fact has not been satisfied of guilt beyond reasonable doubt.
49.4. But if such a conclusion is a reasonable one to draw based upon a combination of those established facts then, it must be determined whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the appellant, the circumstantial case fails as the onus of beyond reasonable doubt has not been satisfied.
The submissions of the appellant
The written submissions of the appellant note the need that even if he considered the appellants account as possible albeit not accepted then the magistrate was bound to acquit and that it was only if that version was rejected that he could convict. In my view the magistrate was aware of that and properly instructed himself in that regard. That he expressed it shortly does not establish error; the magistrate plainly approached the matter in the correct way. This is borne out by the words he uses as to finding that the appellant version was not reasonably possible in light of the other evidence before the magistrate, specifically the CCTV footage and the accepted evidence of the complainant. This included the complainant's evidence of "I'm sorry. You're just too pretty".
The appellant submissions go on however to detail reasons why that conclusion should not have been reached and to argue that the conclusion should have been reached that there was available another explanation or another rational inference as to what occurred.
The appellant sets out six main points with various subparagraphs. The first is the description of the touching and the reference to the downward facing thumb. I do not consider that a reason to consider the complainant unreliable for reasons stated above. Second was the reference to the CCTV footage. Overall, I accept the submissions of the appellant in this regard. I accept that there has not been an allowance for the "birds eye view" aspect of the CCTV camera and also I accept that the dipping of the shoulder is also consistent with a person moving through an area requiring him to turn as he did. The magistrate does not expressly state why he concludes that the version of the appellant is not reasonably possible having seen the CCTV; with great respect to the magistrate it is plainly possible given the angle of the CCTV that that footage shows a person passing an area where he would turn side on and his hand incidentally bumps the complainant. It is also reasonably open that the complainant looked very startled and he expressed concern and apologised (the words found to have been said are addressed below).
Third was the reliance on the number of turns being made by the appellant to end up where the complainant was. There was no evidence as to whether or not the appellant could see the complainant before he came upon her. I do not consider it improbable that a person with time on their hands, as the appellant had here, may have taken a winding route to the door whilst doing so to leave. I have one reservation in this regard, referred to [24] above and discussed at [72] below.
Fourth was the submission of no reasons being given for the finding that the appellant's version was reasonably possible. I reject that submission; the magistrates reasons make it clear that finding is based on the matters now being considered.
Fifth was in respect of the finding that the complainant's reaction is consistent with the words she alleges were spoken and the touching itself. In so far as the finding relates to the touching, I accept the submission that the complainant's reaction could sensibly be as much a result of an accidental or incidental touching as the alleged offending touching. This is particularly so where the complainant was seemingly predisposed adversely to the appellant due to her perception of him staring at her, which was not a matter definitively accepted by the magistrate, and even if it was would not detract from the appellant's submission. The finding that the reaction is consistent with the words found to be spoken is not so easily dealt with. This is the most difficult part of the case for the appellant. The magistrate accepted that those words were spoken and had the benefit of seeing the evidence as it was given. I proceed on the basis of that finding, and address this issue below.
The sixth point of the appellant is to challenge reliance on the complaint to the mother. The challenge is to say it is contaminated by the introduction of the word "squeezed" by a police officer and that nothing was said about the words spoken until she was leaving the shopping centre in the car and that her mother did not corroborate this until she had heard her child say this to the police on the body worn video.
In oral submissions one point made in an overall sense by the appellant was that great care is needed in accepting the interpretation of events by the complainant and it should not be approached with a predisposition to the alleged offence occurring. The submission was that was the approach of both the complainant and the prosecution. I have sought to identify by numerals in parentheses above the matters that the appellant contends are being misconstrued in this way, and which are open to innocent interpretation. These matters to some extent overlap the points raised by the appellant just discussed. Largely I accept that submission of the appellant in this regard. Plainly there should not be any predisposition to a finding of guilt, as it offends the presumption of innocence. The Crown doubtless accepts that, and would argue these are circumstantial matters allowing, when all taken together, a finding of guilt. The matters identified as (1) and (2) are shown in the first CCTV clip, which the magistrate did not find of assistance, and with which I agree. I have dealt with matter (4) above in a way favourable to the Crown. The difficulty for the Crown as to the alleged "grab" is that the time of the touching is self evidently fleeting and momentary, so as to leave significant doubt that it was anything other than the brushing past contended for by the appellant. The matters (5), (6) and (7) all relate to the way in which the appellant moves about the store and speaks to the complainant, matters dealt with elsewhere in these reasons.
The Crown also provided helpful written submissions. The Crown says that the objective evidence such as CCTV footage is consistent with the complainant's account. It is argued that there is not a reasonable possibility that the version given by the appellant is true as it is inconsistent with his actions shown on the CCTV. The Crown then relies on the acceptance of the complainant's evidence by the magistrate and further submits that the CCTV footage allows only one reasonable inference of the appellant intentionally diverging his path to walk behind the complainant thus debunking the accidental brush case of the appellant. The Crown relies on the dip of the shoulder argument. The Crown further says that the appellant case is not a reasonable possibility because the movements in the CCTV are inconsistent with an accidental brush and because the complainant's version is consistent with the appellant's movements in the CCTV.
Consideration
The first point to note is that it is not decisive that the version of events given by the complainant are consistent with what can be seen in the CCTV. Of course that being so aids the Crown case but it does not mean there cannot be any other reasonable possibility. It is that question which is the issue on this appeal though I accept I need to determine the case in line with the principles I have discussed concerning a section 18 appeal above.
Whether my task is expressed as being to determine whether error has been made by the magistrate or as to determine on this rehearing what the correct decision is requires in my view the same analysis. It can be accepted that the magistrate considered the complainant a compelling and impressive witness and I proceed on that basis. It can also be accepted that the CCTV shows the complainant and appellant passing each other prior to the complainant entering the store. The magistrate was equivocal as to whether the appellant "looked" at the complainant, and certainly did not find that he had "stared" at her. Given the brevity of their passing and the lack of any turning of the head any period of looking or staring was brief.
The position prior to the complainant walking into the store is that to that point the magistrate considered both versions viable, or rationally or reasonably possible or open. The question becomes, based on what is then seen on the video after the appellant walks into the store and based on the evidence of the complainant which was accepted, including the words spoken, whether the only available inference or conclusion is that the appellant committed the offending conduct, or is some other rational inference or conclusion open.
I have identified above the bases on which the magistrate concluded that the matter could not have occurred rationally in the way described by the appellant. It is instructive to consider each of them in turn and I have marked them above with the capital letters A through to E.
The first matter identified as A was the manner of walking and twisting and turning through the aisles before coming upon the complainant (which matches the third point of the appellant noted above). It is fair enough to say that is not consistent with somebody directly leaving a store. However in the circumstances of this case where it is implicitly if not expressly accepted that the movements of the appellant on that day were as he said them to be, namely that he had taken his mother to the hairdresser's and decided to spend the time between dropping her off and picking her up at the shopping centre, such twisting and turning is rationally possibly consistent with a person with time on their hands deciding to leave the shop by a circuitous route. That the appellant was leaving the store, albeit by an indirect route, is on the evidence a rationally open conclusion. This conclusion is challenged by the matters referred to at [72] below, but ultimately in my view prevails.
The next point relied on by the magistrate (B) was the dipping of the shoulder (the second point of the appellant). For two reasons mentioned above namely that it is consistent with a person turning to go around someone and also may be impacted on by the "birds eye view" camera, I do not consider that a reliable basis to make the inference. My view is that what can be seen on the CCTV is consistent with the appellant version of events.
The third point (at C) is that the movement of looking down at the complainant is consistent with her version of the words spoken. With respect for the appellant, a tall man, to say anything to a 10 year old would require him to look down at the young person. Looking down at the complainant is equally consistent with what the appellant maintains occurred.
The magistrate then (D) says the complainant's reaction is directly consistent with the word spoken. The magistrate here must be referring to the fact of the complainant running away because the appellant said something she considered disturbing. The complainant's reaction is just as consistent with a 10 year old alone in a store being startled by an older tall man touching her and then turning around to talk to her and she being frightened.
This leaves point (E) which is the actual words found to have been spoken by the appellant. As noted above, whilst the appellant maintains those words were not said, there is no basis on which the finding of fact should be disturbed. The magistrate saw the complainant cross examined. The complainant was found to be a compelling witness. This analysis of the facts accepts those words were spoken. The question is whether there remains open another rational inference. The argument for the appellant here is that the child was mistaken as to the words spoken and elevated them based on what she perceived occurred. The basis for the challenge to these words being accepted as the words spoken was the fact of the complaint about the words not occurring until the child is in the car and the fact the mother did not corroborate it until after she had heard it said by the child in the body worn video interview. The complainant appears to be a bright intelligent young girl. I do not consider that the challenges to her evidence of those words being spoken is made out. I need to recognise the advantage of the magistrate in this regard also. It is only a reasonably brief delay before she volunteers the evidence in the car.
The appellant denies saying words which the court has accepted were said. Either he knows he said those words and is lying; alternatively he did say those words but does not clearly recollect saying so.
There was no discussion by the magistrate of the consequence of the finding of the words being spoken by the appellant as alleged by the complainant, where that has been denied by the appellant. No argument was seemingly made before the magistrate, and was not made on appeal, that the denial was a lie evidencing a consciousness of guilt. Had an argument been made to that effect, it would doubtless have been met with an argument that the lie could be explained as being in panic or to escape an unjust allegation. Notably, the appellant said in his ERISP that he left the store and the centre so as to avoid a scene, or, quite possibly, a feared unjust allegation.
That argument meets the concern of the possibility of the appellant lying in his denial. What is more difficult is to explain why the appellant said the words found to be said in the first place. The phrase in question is "sorry I couldn't help it, you're too, just too pretty". The Crown seeks that an inference be drawn that these words mean the appellant could not resist sexually touching the complainant because she is "just too pretty". When one seeks an innocent meaning, the phrase can be broken into two. The first part "sorry I couldn't help it", is consistent with an incidental touching. The second part "you're too, just too pretty" is arguably less capable of innocent interpretation, but in my view it is not irrational to think that in the circumstances in which the appellant found himself of having accidentally touched a young girl who then reacted in a startled fashion that he blurted out an unthinking and inappropriate comment.
The position in my view is therefore that all of the circumstantial factors relied on by the Crown to varying extents are capable of alternative interpretations or conclusions or inferences, inconsistent with guilt, with the result that the Crown has not satisfied the heavy onus it bears. The words spoken are troubling and clearly favour the Crown case more than (but not to the point of rendering irrational) the alternative conclusion. Even allowing for this concern there remains to my mind reasonable doubt.
There remains one reservation to the above conclusion, referred to at [24], [53] and [63] below. This reservation is a matter which has not been specifically referred to by the parties or by the magistrate, but may have been referred to in a general sense, though in my view it was not. I refer to what can be seen on the CCTV video marked "Ch10" on the USB drive, and on close examination, also on "Ch09". What can be seen on "Ch10" at timestamp 11.11.57 is the appellant walking across the back of the store and he reaches the end aisle; he looks down the aisle, where the complainant can be seen standing. The appellant looks down the aisle in the direction of the complainant; he then stops and backs away. The CCTV then shows him going towards the front of the store, so in the direction of the exit, and is next seen again at the back of the store and in effect doing another loop of the area where the complainant was last seen. The same stopping when he sees the complainant, which I would describe as baulking, can be seen on Ch09. It is then at 11.12.50, so 52 seconds later, that the incident occurs.
This part of the footage supports the Crown argument that the appellant is looking for the complainant. It also allows for the conclusion, which I reach and but for this evidence would not have reached, that the appellant did see the complainant shortly (52 seconds) before the incident, and takes away from the appellant the submission that there is no evidence that the appellant saw the complainant in the spot where she was; it may not be the exact spot, but the footage referred to shows that he saw her in approximately that spot less than a minute before he walked in that area, and executed a random second loop of the store in the interim. He was expressly asked about this second loop in the ERISP at Q830, but the baulking as I have described it and the sighting of the complainant was not canvassed with him.
The footage just referred to is another fact fitting the Crown case. It does have an impact adverse to the appellant. Yet this conduct of the appellant, although suspicious, even strongly suspicious, is open to the explanation of a man wandering about a shop with time to while away, and who, whilst on his way out the door, randomly walks around.
The conclusion that I reach is that the inference of an incidental touching remains open and that the Crown has not discharged the onus it bears beyond reasonable doubt for the reasons just stated. My view is the correct decision is different to that of the magistrate for the reason that he has concluded that no rational inference is open other than the offence was committed by relying on matters, including the manner the accused walked around the store which rationally allow for a different inference inconsistent with guilt.
[4]
Appeal allowed.
Conviction set aside.
Sentencing orders set aside.
[5]
RILEY
The appellant was convicted of one count of sexually touching a child between the age of 10 and 16 years, in breach of section 66DB(a) of the Crimes Act.
The appellant has taken a very sensible approach to this matter and has conducted this appeal focusing on one issue. That issue stems from what is accepted to have been a lie told by the appellant to police in his ERISP. The lie relates to whether the appellant entered the complainant's bedroom. The issue raised in the appellant's written submissions is that the magistrate placed too much weight on this lie to discredit the clear denials of the alleged sexual touching made by the appellant in both his ERISP and in his evidence in court.
The argument for the appellant is in essence based on the Liberato direction. That is either the evidence of the appellant could be believed in which case there should be an acquittal or if it was difficult to accept that it might be true then there would still be an acquittal.
The magistrate has plainly rejected the evidence of the complainant and has preferred the version of events given by the complainant. No submissions were made as to deficiencies in the complainant's evidence.
The material before the court consisted of the exhibits and transcript from the hearing below. There was also provided at the appeal hearing colour copies of photographs which appeared in the exhibit only in black and white. Those photographs show the room in which the appellant had been with his children prior to the alleged offence and shows a large L-shaped couch. One limb of the L shaped couch pulls out into a double bed. The appellant's children were sleeping there. This leaves the other limb of the couch able to be used as a single bed. The significance of this will become clear.
In oral submissions the appellant frankly accepted the matter turned on the credibility of the appellant in court and in his electronically recorded interview (ERISP). The argument put orally went so far as to suggest that in circumstances where there is no obligation to give evidence the appellant did so knowing he would be contradicting himself, with the result that credibility is strengthened rather than weakened. The magistrate did not take the lie into account as consciousness of guilt. The appellant says it should be accepted to have been a lie made for fear of further allegations and to minimise the nature of the event which he said was a one armed hug, and I assume the argument extends to say non-sexual. Shortly put the appellant says that whilst the finder of fact might be unsure of the appellant's version of events it nevertheless might be true.
The appellant accepts that the magistrate had the benefit of seeing the defendant give his evidence.
The submissions for the Crown were straightforward. It was a question of credit and the defendant was demonstrably a liar. He also points to other asserted weaknesses in his evidence which will be referred to below as necessary.
The facts
In addition to the photographs just mentioned there was before the court a number of police statements, the transcript of the interview by police with the complainant and the transcript of the proceedings which occurred on 9 September 2020, 30 September 2020 and with the reasons for decision given on 18 December 2020 and the sentence on 23 February 2021.
There was evidence of Mandy Burns who was a bar supervisor at the Amble Inn on the early evening of the offending. She gave evidence of seeing the offender showing signs of intoxication. At about the time she was closing the hotel she saw the appellant drinking in the car park with the complainant's father and expressed the view they were intoxicated. This was the evening of 12 December 2019.
The complainant was born on 21 September 2004. The alleged offending occurred on 13 December 2019 so that she was 15 years of age at that time. On 9 January 2020 she gave an interview to police which was recorded. The effect of her evidence was as follows:
86.1. Her father and the appellant were out at the pub and she was babysitting the appellant's children at her home. Her father and the appellant came home and the appellant's children were asleep.
86.2. After talking to her father and the appellant she went back into her room. At a time she does not know the appellant walked into her room and asked her where the drinks were and she told him in the fridge on her counter. She said it didn't seem he went to the kitchen before he walked back into her room and asked for help. So she walked to the fridge to see the drinks were where she said and then walked back into her room. He then walks into her room asking if she wanted one and she said no thank you. There has thus been three engagements by the appellant with the complainant where he comes into her room on the complainant's evidence, or at the very least 3 occasions where the appellant knew where the complainant's room was.
86.3. Sometime later he came into her room and asked if he could charge his phone on her charger and she said okay so he walked in and did so. Other evidence suggests he may have handed her the phone and she plugged it in to charge. He then a little later walked back in to get the phone off the charger. There is now five occasions of walking into the room, or of being in very close proximity to it.
86.4. He later walked into her room and asked if the complainant wanted to sleep in the lounge with "the guys" meaning his three girls. She replied that she did not want him sleeping in her bed and that was gross. It seems she interpreted his question as meaning that they would swap where they would sleep. She then told him about the side part of the couch which when the cushions are off can be used to sleep on. He said okay and again without, to her impression, reaching the lounge room walks back and asked her to help him. This takes it to 7 engagements with the complainant.
86.5. The complainant then went to the lounge room and was pulling the cushions off the couch (clearly seen on the photos) and could not reach the last one so crawled onto the couch to reach it. It was when doing this that the appellant is alleged to have then crawled on top of her. She said words to the effect of "what are you doing". He said after staying there a couple of seconds something like "oh sorry" and got off her. She was then going to walk out of the lounge and he asked her to wait. He came over to her, turned her around and grabbed her from behind and started feeling her all over. She disengaged his hands and tried to get away and she says "he's like no way" and grabs her again and does the same thing again. She repeatedly said no and stop and what are you doing. He was breathing heavily into her ear. She got out again and ran to her bedroom and he was saying no wait. She shut the door to her room and texted her mum. She says she was freaking out. Her mother got the texts and after about five minutes came to her room and stayed with her until the morning.
86.6. When her mother came in she told her that the appellant had come in a few times and asked for things and to help him with something that he could have done himself. And then he touched her.
86.7. She did not go to the police the next day because she was scared.
86.8. She described the touching all over as being on her breast and stomach, which was bare as she was wearing what she described as a crop top revealing her belly. She said he never asked if he could touch her and she did not tell him he could touch her and that she did not want him to touch her.
In a statement handwritten by the complainant prior to her police interview she gives a version consistent with the above. That statement makes clear the drink he offered her was alcohol. She says her father and the appellant had got home at about 11 PM. And she says the first engagement by the appellant with her was in the early morning she says around 1 or 2 AM. She described him feeling her boobs stomach and a bit lower.
The texts the complainant sent her mother were in evidence and are very brief and state repeatedly the word "mum" and "please wake up and come into my room" and "it's really important" and "I can't come to you trust me please". There were 13 such messages.
The appellant was arrested on 30 January 2020. When told he was under arrest for sexual touching matter he stated "you're joking". He agreed to be interviewed. The significant parts of that interview are as follows:
89.1. He had been drinking at the Amble Inn with Rob (the complainant's father) and went back to Rob's place. The complainant had been looking after his three girls. He and Rob continued to have drinks out the back. He stated he did not believe there was any sexual touching by him of the complainant.
89.2. When asked (Q40) if he recalled "doing" (presumably "going") into her room he replied "not at all". He did concede asking the complainant if there was another place to sleep because the three girls were in the lounge room and she told him about sleeping next to them on the lounge. At Q57 the allegation of going into the complainant's room a number of times and asking to help him with the lounge or the bed was put and he replied "that's not true. I asked if she had anywhere else other place I could sleep because there was nowhere to sleep with, I already went and laid down with my girls". He went on to explain that it was a foldout bed with a thin mattress on a steel frame which makes it clear that he was not trying to sleep on the couch which would appear to have been available as is clearly shown in the photograph. He denied lying on top of the complainant. He says he asked Rob first about where to sleep. Such a conversation was not put to Rob when he was cross-examined.
89.3. At Q73 he expressly stated that he did not enter "that room" while the complainant was inside that room. The reference to "that room" is to the lounge room where the children were sleeping. He then added that she came back past him and he gave her a one arm hug and said thanks and got onto the lounge and went to sleep. He says soon after that the complainant's mother came tearing into the room saying "did you hug [the complainant]". The appellant said he did not think he had done anything wrong. At Q81 and Q83 the allegations of laying on top of the complainant and grabbing her, spinning her around and grabbing her from behind are expressly denied and he says that he stood in the doorway [of the lounge] while she pulled the cushions off the lounge and that was it. The allegations of rubbing the breasts and stomach area and above her pubic bone were also said to be not true.
89.4. At Q196 he answered that he didn't go to the complainant's room and that he was only in the living room and the lounge room. At Q208 he denied going at any stage to the complainant's bedroom. At Q209 he denied putting his phone on the charger in the bedroom. At Q210 he said he did not know where the complainant's bedroom was.
89.5. The ages of his children are 7,5 and 3 or 2 turning 3.
At the hearing, the complainant was cross-examined. The complainant's evidence makes clear that at the time the appellant came to ask for the charger she was awake. She disagreed that he did not enter the room and said that he did and gave her the phone. (T 29). She was awake when he came back to get the phone about 15 minutes later. She again disagreed that he did not come in and said he did to grab his phone. She was firm in adhering to her evidence that he asked her where the drinks were and that he asked if she wanted to sleep with the girls. She said she clearly and specifically remembered that. The appellant version was put to her at T36 and she rejected it.
The complainant's mother gave evidence as to receiving the text messages. She said when she went into her daughter's room she told her amongst other things that the appellant had grabbed her after she had gone into the lounge to move cushions for him and that he had rubbed his hands all over her boobs and she said stop.
The appellant gave evidence. He says that when he got back to the house with Rob he sent out the back and had a drink and the complainant joined them. When he later went to bed he lay down with his girls, which other evidence makes clear was in the pullout bed in the lounge room. He says he woke up uncomfortable and wanted to ring his ex-partner to find out where she was and for that purpose needed to charge his phone. He then says he went to the bedroom of Rob and the complainant's mother and asked the complainant's where his ex-partner was and was told she was at another pub and was not coming back. The appellant then goes and asks the complainant to use her charger and put his head around the door to her room to do so. He says he did not enter her room. He also asked if there was anywhere else he could sleep. I note that in the ERISP said he did not know where her room was.
He gave no evidence of calling his ex-partner when the phone had charged.
At T12 of 30 September 2020 he says that he asked the complainant where the lounge beside the pullout bed was. On the evidence at the hearing this conversation is when she is in her bedroom which compounds the inconsistency of him not knowing where the bedroom was. He says he stood by the lounge door and put his arm out when she came past him and "engaged" for a very short time and then she pulled away. At T16.20 he described it as a brief encounter of no more than one or two seconds. He then said he stepped half a foot into the room, that is, the lounge. He said that he had not entered the room in his ERISP though little turns on a variation of that dimension. He gave evidence of the complainant's mother coming in which is consistent with the complainant having complained to her mother very soon after the event.
At T21 he said he did not have to walk into the complainant's room to get his phone but swung his arm around the door. That was when he asked whether there was anywhere else he could sleep. At T22 he maintained that he did not go into the room that is the lounge room whilst the complainant was moving the cushions and did not crawl on top of her or approach a second time for a hug.
At T23 he was asked about his answer to question 61 of the ERISP. That question was "from what we've been told you've gone back out in the lounge room, [the complainant] has given you a hand taking, removing the cushions off the couch" and "do you recall doing that" and the answer was "no not really no". His evidence was that by saying no he was saying that he did not take the cushions off. He also added about the phone charger that he wanted to ring his ex-partner to see if she was coming back.
At T25, Q73 of the ERISP was put as whether he had gone into the lounge which I have touched on above.
At T27 Q196 is put to him where he had said "I don't know. I didn't go to [the complainant's] room. I was only in the living room and the lounge room" and he repeated that he did not know where her room was. He was then reminded that in his evidence to the court he had said he did briefly reach in to take the phone off the charger and then admitted that it was the case that he did enter her room partially. He was then asked why he said to police he did not know where the complainant's room was and he said "it was the line of questioning they were taking towards me and I, I pretty much shut down because I thought they were alluding to sexual assault and I, I was having no part of it because I knew it hadn't taken place".
In cross examination the appellant was challenged by his use of the words in his interview saying in answer to the allegations "I wouldn't have done it" as opposed to an express denial. It was put to him that his memory would be better closer to the time of the event which he denied saying that he had thought about it a lot and that he was not really thinking about what had happened and now he knows what happened. This is unpersuasive.
At T33 it was put to him that he said he did not know where the complainant's room was to put some distance between himself and having anything to do with the complainant and he said "No I was trying to distance myself from the line of questions they were taking with me. I I was scared at the time of what they were insinuating". He went on to say he thought the police were "alluding to sexual touching assault whatever you want to call it". He said he thought he was in trouble and he wanted that to stop.
The accepted evidence of the complainant is of repeated attendances by the appellant at the complainant's room, yet he initially said he did not know where the complainant's room was. He later admits to the version of the complainant of him asking whether there was somewhere else to sleep and to charge the phone, and this occurs in or near the complainant's room. Not only does the accused know where the room is, he was there 3 times at least. As to where to sleep he was asked about that at T36. It was put to him there was no reason to go and see the complainant about that and he said there were so many cushions there you would not have known there was a lounge there. He did not think it was a bed. It was then put to him that he could have removed the cushions himself and he said he didn't know there was anything to remove. This is plainly contradictory given he had just said there were many cushions there. This evidence further damages his already damaged credit.
He was also pressed about the answer to Q139 where he was asked about having said he had only spoken 10 words to the complainant and was then asked whether he had come in contact with the complainant and he had said no. At the hearing he said he had said no because he was thinking of DNA. The issue of DNA was not raised until later in the interview. This was another point against the reliability of the appellant's evidence.
At T41 and 42 he denies having gone to the complainant's room to ask firstly where the drinks were and secondly for help and thirdly as to whether she wanted a drink. He accepts that he asked her to charge the phone and that he later came back and got the phone off the charger. He accepts that he then asked her whether there was anywhere else he could sleep. He denies she said she did not want him sleeping in her bed because that was gross. He accepts she referred him to the lounge on the side of the bed which he said he had not seen.
The appellant's evidence becomes more unpersuasive at T43 in the way he answers the questions describing what the complainant was doing with the cushions saying "I don't know what she was doing mate" having earlier said he watched her do the removal of the cushions. He then repeated his denials when the allegations were put to him constituting the offending.
[6]
The magistrate's reasons
The magistrate begins by identifying the onus of proof of beyond reasonable doubt resting with the Crown at all times. The obligation is in respect of all elements of the charge.
The account of events maintained by the appellant was of a one armed cuddle no lower than the back and was not of sexual touching. This occurred he maintained at the entry to the lounge room.
The magistrate recounts the version given by the complainant. This is of repeated excuses by the appellant for coming into the room such as where he could sleep when it was obvious where he could sleep and then to come back for a charger and then come back to collect his phone; all pretences it would seem to be in that room preceding the alleged attack which the magistrate accepted occurred.
The magistrate noted the denial by the appellant in his ERISP of any of the alleged offending conduct but also noted his concessions of asking the complainant if there was somewhere else to sleep and that she came to the lounge and remove the cushions. He said he did not enter that lounge room at that time when she was removing the cushions. He said he gave her a one armed hard. The magistrate noted the express denial in the ERISP of not going to the complainant's room and that he was only in the living room and lounge room and also his initial assertion of not knowing where the complainant's room was. In the ERISP the appellant said he did not go to the complainant's room. This is followed by reference to his evidence in the proceedings. There he said he did go to the complainant's room to charge his phone which he handed to her but he did not enter the room at that time. The magistrate placed emphasis on the inconsistency of the ERISP where he said he would not know how to get to the complainant's room and did not go to that room which contrasted with his evidence in court where he was at the complainant's rooms doorway and at the very least entering it for a short moment and/or distance to collect his phone. The magistrate noted the appellant's explanation for this inconsistency by saying he had shut down because he thought the police were alluding to sexual assault.
At T6 of the reasons (18 December 2020) the magistrate reminded himself that in considering competing versions the question is not which version he prefers. He later referred to the decision of Liberato. The magistrate put the direction consistently with what was said in De Silva namely that if he believes the evidence of an appellant person then there should be a not guilty verdict; if he does not accept the evidence but considers it might be true then the verdict should be not guilty; if he does not believe the appellant or does not consider it might be true then he must put that evidence aside and assess the prosecution case to determine whether it has satisfied the onus beyond reasonable doubt.
The magistrate then considered the level of intoxication in assessing reliability noting that the appellant had about 10 drinks.
The magistrate then noted the inconsistency in the evidence of the appellant in court compared to the ERISP, which is noted above.
On one view this inconsistency could be a result of being panicked when being questioned or it could simply be a lie. The magistrate concluded that it was the latter and that the appellant knew he was not telling the truth when speaking with the police. With respect that seems an obvious conclusion and one that there has not suggested to be any basis to disturb and I note the advantage of the magistrate in witnessing the appellant at the hearing.
His Honour then considered what to make of this lie. He raised the possibility of a consciousness of guilt. His Honour gave himself an appropriate direction that people may tell lies for other reasons for example out of panic which was asserted by the appellant here or some other reason than to avoid being implicated in the offence. The magistrate considered there was a real possibility the mistruths related to consciousness of guilt but also considered it may have been told out of panic. Favourably to the appellant he therefore did not take the lie to be evidence of guilt but only can be limited to credit.
His Honour then found the complainant to be a credible witness. The evidence of complaint to her mother including by the text messages sent almost immediately supports acceptance of the complainant's version of events. The reaction of the complainant is also consistent with her complaint. The statement written by the complainant shortly after also provided support for the complainant's version of events. In my view the same conclusion as to the acceptability of the complainant's version would be reached without recourse to that statement given the consistency of the text messages, the immediate complaint, the interview with police and her evidence at the hearing. The magistrate fairly noted that repeating the complaint in the statement does not add to the veracity of the complaint, but found it of assistance because of its consistency.
The magistrate rejected the version put forward by the appellant. It was inconsistent with what occurred afterwards in terms of the complaint and the inconsistency as to his knowledge of the complainant's room raised concerns as to his honesty or his memory or both and the magistrate did not consider his version likely to be true. In terms of the earlier direction his Honour did not consider the version given by the appellant might be true. It was therefore necessary for him to carry out an assessment of the Crown case to determine if the necessary onus had been satisfied by the Crown.
His Honour then concluded that he was satisfied beyond a reasonable doubt of the allegations having occurred. Earlier in his reasons he noted the need to carefully assess the evidence of the complainant (see at T7). His Honour took the view that the complaint evidence allowed him to conclude it was unlikely the complainant's evidence was a fabrication and it is more likely accurate. He found it consistent with the reaction of the complainant as already noted. He did not consider it detracted from the complainant's account that she went to her room rather than to her mother on the basis that she found a sense of security in her bedroom. I would note also that she sought to secure the door by leaning against it when sitting down and was texting her mother. No argument was put challenging this on the appeal.
What the magistrate does not say but in my view is open to be said about the complainant's evidence is that her manner of giving evidence when cross-examined was forthright and clear. In the main she gave short direct answers and was not at all moved from her position.
Consideration
The short point made on this appeal by the appellant is that too much emphasis was placed on the identified inconsistency as to whether the appellant had been to the complainant's room. The argument was that should be seen as simply something said in panic for fear of the allegations being made against him. The argument was put that whilst you might not be sure of the defendants evidence it might be true. If that submission is made in relation to that specific fact (his knowledge and proximity to the complainant's room) then with respect that cannot be right because the appellant admits that it is not true. If the submission is made in general terms so as to mean that his evidence that the alleged conduct did not occur might be true then that is a matter that requires consideration of his evidence overall.
Bearing in mind the principles applicable to a rehearing and in particular the benefit the magistrate has of having seen the appellant giving his evidence the fact remains he was considered to be a witness lacking in credit. The magistrate highlighted the admitted inconsistency of the appellant. The argument for the Crown is that the inconsistencies do not stop there. Not only was there the lie but the Crown asserts that the explanation for it was unsatisfactory. He said that he shut down when the police were alluding to the allegations but by that time as the Crown argues he had already been told that his evidence could be used in court. To say he was scared and wanted the interview to be over was an unconvincing reason to lie on what was as the magistrate found an important issue. Further he did not "shut down", at least on his own version, in respect of other issues. I accept these submissions of the Crown.
The Crown referred to the appellant asserting his memory was better at the hearing rather than at the interview which seems unlikely. There was the inconsistency of whether he had asked anyone else as noted above in respect of either where to sleep or for a phone charger. The Crown suggested that the submission on behalf of the appellant that to admit to the lie bolsters his credit should be rejected and I accept that submission. It was key to the magistrates reasoning that it damaged his credit.
The Crown made the quite reasonable submission that it was the appellant who had created the situation. That was a reference in particular to the fact that it appears obvious that there is a sofa next to the children's bed and there was no need at all to ask the complainant where he might be able to sleep. That is something about which I might not be satisfied beyond reasonable doubt given his state of intoxication meant he may have missed it. However in light of the other attempts, some which were denied, to engage with the complainant, I am generally satisfied that it was clear that he could sleep in that room without having to ask anybody. It is not a matter I need to be satisfied of beyond reasonable doubt. Further given the complainant's version has been accepted there is as many as seven times when he has approached the complainant's room trying to bring about some engagement, leading ultimately to the creation of the situation where he committed the offences.
The position is that the appellant accepts that he gave false evidence to the police on an important fact in this case. Whilst it is not integral to the offending it certainly gives some context to evidence by him to engage with the complainant prior to the alleged events occurring. This is damaging to his credit. There are other matters which tend against acceptance of his version of events. The magistrate concluded that his credit was damaged to the point that his evidence was rejected by the magistrate. In my view for the reasons just discussed he was right to do so. Considering then the case for the Crown and the compelling evidence of the complainant the conclusion of the magistrate that each of the elements of the offending had been satisfied was inevitable. In my view the approach of the magistrate, the manner in which he dealt with the credit of the appellant and the conclusion that he reached were all correct.
In my view the appellant's submission that too much weight has been placed on the admitted lie of the appellant is not made out. The correct decision has been reached by a correct route. Having rejected the appellant's version for the unreliability of his evidence, a consideration of the Crown case, and in particular the accepted evidence of the complainant, results in the offence being established beyond reasonable doubt.
[7]
Appeal dismissed.
Conviction confirmed.
Sentencing orders are noted not to have been the subject of appeal and are therefore confirmed.
[8]
Amendments
24 August 2021 - Catch word for appeal added.
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: 24 August 2021