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[2009] ACTSC 154
defendant. A verdict of acquittal was entered; the accused was found not guilty because the prosecution had not proved the particularised offence beyond reasonable doubt and certain hearsay representations...
Gray J acquitted Anil Sharma of an alleged act of indecency on a 15-year-old colleague after finding the prosecution had not proved the specific acts beyond reasonable doubt. The judge excluded several contemporaneous out-of-court representations, including a police statement, because the prosecution failed to establish they were not made for the purpose of indicating the complainant's prospective court evidence, so s 66(3) Evidence Act operated to bar them. The judge accepted parts of the complainant's CCTV evidence and noted observed distress, but inconsistencies and the possibility of accidental contact, plus the accused's demeanour and good character, left reasonable doubt.
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The accused, Anil Sharma, a 48-year-old night-filler at a Big W store, was charged under s 61(2) of the Crimes Act 1900 (ACT) with committing an act of indecency on a 15-year-old female colleague on 31 May 2008. The prosecution particularised the alleged acts as kissing on the open mouth, touching the breast and placing a hand on her thigh in the lunch room (Reasons [7]). The complainant gave evidence by closed-circuit television (CCTV) and described a series of interactions on 22 May and 31 May 2008 which included touching and kissing (Reasons [9], [11]–[15]). Several co-workers heard contemporaneous complaints and observed the complainant's distress (Reasons [15], [26], [29]–[33]). A police officer, Constable Egan, took a statement from the complainant some hours after the incident (Reasons [34]).
4 cited instruments linked from this judgment.
The accused denied the specific physical contacts and gave an account that, while he accepted some minor interactions (eg, handing back goods, helping with stock), emphasised accidental contact, a collision in the lunch room and that the complainant approached and sat near him (Reasons [19]–[25]). The accused required an interpreter; Gray J expressly noted the interpreter issues and accepted the accused as a witness of good character (Reasons [17]–[18]).
The prosecution sought to rely on contemporaneous representations (to co-workers and the police) to support the complainant's evidence, invoking s 66(2) of the Evidence Act 1995 (Cth), the fresh-in-memory hearsay exception, and s 60 for consistency (Reasons [27]–[28]). The defence objected to the admissibility of certain representations, arguing that s 66(3) excluded them because they were made for the purpose of indicating the evidence the complainant would give (Reasons [35]–[36]).
Gray J excluded at least the police statement to Constable Egan as inadmissible under s 66(3) and declined to admit other representations for which the prosecution failed to prove purpose (Reasons [41]–[42]). The judge then assessed credibility and ultimately found that, although there was a strong suspicion something untoward had occurred (supported by observed distress), the prosecution had not proved the particularised offence beyond reasonable doubt. A verdict of acquittal was entered (Reasons [46]–[47]).
Two strands of reasoning drove the outcome: evidentiary admissibility and the criminal standard of proof.
Section 66(2) offers an exception to the hearsay rule where a representation was made when the matter was fresh in the maker's memory and the maker is available to give evidence. However s 66(3) excludes from that exception any representation made for the purpose of indicating what evidence the maker would be able to give at proceedings, unless the representation concerns identity. Gray J carefully analysed the content and purpose of the representations made by the complainant to co-workers and to the police to determine whether s 66(3) barred their admission (Reasons [35]–[36], [40]). The judge relied on authorities that draw a distinction between routine investigatory statements and statements made with a view to court proceedings, noting that where there is no evidence of purpose, the proponent must establish admissibility (Reasons [37]–[40]). On that basis the statement to Constable Egan was expressly ruled inadmissible (Reason [42]); other representations were treated with caution where their purpose was not proved (Reasons [33], [40]).
Even where some evidence (CCTV testimony and observations of distress) supported the complainant's account, Gray J emphasised the prosecution's onus to prove the charge beyond reasonable doubt and that strong suspicion is not sufficient (Reasons [5], [46]). The judge noted inconsistencies between the complainant's trial testimony and out-of-court representations (including differences as to sequencing and detail), the possibility that some earlier contacts were accidental, and that the accused's demeanour, limited English and good character affected the assessment of what was likely to have occurred (Reasons [33], [44]–[45]). Taking these features together, Gray J found a reasonable doubt remained as to whether the accused committed the particularised acts and therefore acquitted him (Reasons [46]–[47]).
Before this decision, the statutory framework under the Evidence Act 1995 (Cth), particularly s 66(2) and (3), and relevant authority such as R v Esposito and Stevens v McCallum had already identified the fine line between admissible fresh-in-memory representations and excluded statements made to indicate prospective evidence (Reasons [37]–[39]). This judgment applies those principles in an ACT Supreme Court trial context and underscores two clear points:
After this decision (as recorded in the judgment), the law remains that s 66(3) can and will be applied to exclude representations; the decision illustrates how a failure to establish purpose will lead to exclusion. The judgment does not itself change legal principles, but applies and reinforces existing authorities (R v Esposito, Stevens v McCallum, Saunders v The Queen) in the ACT context (Reasons [37]–[39]).
Paragraph 35 (text of s 66(3) reproduced): "If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply ..."
Plain English: If a statement was made because the speaker was effectively preparing what they would say at trial, then the usual 'fresh memory' exception to hearsay does not apply, unless the statement only identifies a person/place/thing.
Paragraph 40: "In circumstances where there is no evidence as to the purpose of the person making the representation, it falls to the party seeking to adduce the evidence to establish its admissibility. That has not been done in this case."
Plain English: If it is unclear why the witness made the out-of-court statement, the party who wants to use that statement must prove it was admissible. Here the prosecution failed to prove that, so the statement could not be used.
Paragraph 42: "I rule that the complainant's statement to Constable Egan is inadmissible."
Plain English: The judge excluded the police statement, it could not be used as evidence at trial.
Paragraph 46: "A very heavy suspicion of something untoward having happened is not enough. I have a reasonable doubt ..."
Plain English: Even if the judge thought something probably happened, if there is any real doubt about whether the accused committed the specific acts alleged, the law requires an acquittal.
Paragraph 4 (on judge-alone obligations): The judge must explain legal principles, findings, and reasoning.
Plain English: When a judge hears a criminal case without a jury, the judge must write down the legal rules applied, the facts found, and how the judge reached the verdict.
The judgment is directly instructive where prosecution case relies in part on contemporaneous complaints or statements made to colleagues or police, particularly:
Practitioners should therefore expect close scrutiny of the circumstances in which contemporaneous statements were made: whether they were made as part of routine investigation or for the express purpose of crystallising evidence for court. Absent evidence showing the former, s 66(3) can operate to exclude the statements.
This judgment itself invokes and applies earlier authorities on s 66(3) (notably R v Esposito, Saunders v The Queen and Stevens v McCallum) to frame the admissibility issue (Reasons [37]–[39]). The decision follows the established approach that the critical inquiry is the purpose for which the representation was made, and that the proponent has the evidential onus to prove admissibility when purpose is not apparent (Reasons [36], [40]). The judgment does not record any later judicial treatment of this particular decision. Any subsequent appellate or persuasive treatment after 2009 is not discussed in the Reasons and therefore cannot be asserted here.
How to prove purpose in routine investigatory contexts: Gray J emphasised that the prosecution must establish the purpose of the representation when purpose is not apparent (Reason [40]). What minimal evidence is sufficient to show a statement was not made to indicate prospective evidence remains case-dependent. The judgment cites R v Esposito and Stevens v McCallum for guidance but does not lay down a checklist (Reasons [37], [39]).
The margin between 'preliminary' investigatory accounts and 'proof-style' statements: Gray J accepted that a statement being 'preliminary' does not automatically exclude it from s 66(3) if its purpose appears to be to indicate evidence for proceedings (Reason [39]). The line remains fact-specific and uncertain; practitioners must carefully evaluate how statements were elicited and recorded.
Weight of contemporaneous distress where representations are excluded: The court accepted that observed distress supports an inference of an untoward encounter (Reason [26]), but because the specific allegations were not established beyond reasonable doubt, distress alone is insufficient. How courts should balance distress evidence against excluded contemporaneous statements in future cases is an unresolved practical tension.
Interaction with protective procedures (CCTV etc): Gray J made express comments that receiving evidence via CCTV is neutral as to credibility (Reason [9]). The extent to which special measures for vulnerable witnesses affect the assessment of surrounding evidence (for example, whether contemporaneous statements should be treated more favourably when the complainant is a child) was not fully explored.
Standards for proving 'accidental' contact vs intentional indecency: The judge accepted the possibility that some touching might have been accidental and construed differently by the complainant (Reason [44]). Identifying thresholds of evidence that exclude accidental explanations in close-contact workplace settings remains a factual inquiry in subsequent cases.
Practitioners should note that this judgment is a careful application of s 66(3) and the criminal standard of proof in a judge-alone sexual-offence trial. The key takeaways are prosecutorial caution when relying on out-of-court representations and the continuing primacy of beyond-reasonable-doubt proof even where contemporaneous distress is apparent (Reasons [40], [46]).
1. A verdict of acquittal be entered in respect of the charge on the indictment.
1. On 8 October 2009, Anil Sharma (the accused) was arraigned and pleaded not guilty to a charge that:
... on the 31st day of May 2008 at Canberra in the Australian Capital Territory [he] committed an act of indecency upon [the complainant], the said [complainant] being a person under the age of 16 years, to wit, 15 years old.
2. These are proceedings for a sexual offence under s 61(2) of the Crimes Act 1900 (ACT). Section 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibits the publication of a complainant's identity. Accordingly, I attach an appendix which contains such information as may lead to disclosure of the complainant's protected identity information. I order that it not be published but be made available for the purpose of these and any subsequent proceedings only.
3. Before the court first allocated a date for the trial of this charge, the accused elected to be tried by judge alone.
4. Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person, any such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. I am to explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250).
5. There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.
6. The accused is charged with an act of indecency upon a 15 year old female person. The offence is constituted by intentionally committing an act on a person who is of the age particularised. The act must be indecent. The word "indecent" means contrary to the ordinary standards of respectable people in the community. That is a matter for me to determine as the finder of fact in this trial. For the act to be indecent, I must be satisfied beyond reasonable doubt that it must have a sexual connotation or overtone. If it does not have that aspect, then the prosecution must prove beyond reasonable doubt that the conduct was accompanied by, or went hand in hand with, an intention on the part of the accused to obtain sexual gratification (see R v Harkin (1989) 38 A Crim R 296 at 301).
7. The prosecution particularised the act of indecency in this matter as, "the kissing on the open mouth, the touching of the breast and putting his hand on her thigh in the lunch room". At the time the prosecution gave those particulars, the complainant had given her evidence by closed circuit television (CCTV) in accordance with s 43 Evidence (Miscellaneous Provisions) Act 1991 (ACT). The evidence that the complainant had given was not completely in accord with those particulars. The evidence by way of CCTV, which was tendered at the trial, did not refer to an "open mouth" but the complainant did say that the accused held her face and kissed her three times on the right side of her mouth. The actions of the accused, as described by the complainant, were part of the one occurrence.
8. There does not seem to be any issue that, having regard to the age difference between the accused, who was aged 48 at the time, and the complainant, who was aged 15, that the actions of the accused as deposed to by the complainant would amount to an act of indecency. The accused, on oath, denied that he had acted towards the complainant in the way that she had described. Accordingly, the issue in this case is whether the accused acted, on the occasion the subject of the charge, in the manner alleged by the complainant.
9. The complainant gave her evidence by way of CCTV. That circumstance is provided for by the Evidence (Miscellaneous Provisions) Act 1991 and I draw no inference adverse to the accused from the fact that her evidence is given from a place other than a courtroom. The complainant's evidence was given in a forthright, clear and consistent manner. Her answers to the questions put were appropriate and responsive.
10. The complainant gave evidence that she was a part-time employee at the Big W department store in Woden, working as a checkout associate. At the time she was in year 10 at school and was 15 years of age. At the relevant time, the accused was employed at the same store as a night filler.
11. The complainant referred to two occasions which involved her and the accused. The first she said occurred on 22 May 2008. After the store closed at 6:00 pm, and as she was fixing up stock on the shelves, the accused offered to assist her by opening "chip" boxes for her. She said that he complimented her by saying that he would do anything especially for her, that she was such a lovely girl. Shortly after he sought to hold her hand or at least her fingers by grabbing at them. This attention made her feel very uncomfortable. There was also a conversation about going to have coffee with the accused. She says that she was shocked and responded with the expression "umm". Later he spoke to her and called her a liar because she had said that she would come and have coffee with him. Her response to that was "No".
12. On 31 May 2008, the complainant says that she commenced work at 2:00 pm. She was fixing up the shelves in the confectionery department when the accused spoke to her asking her if she was working in confectionery. At the time she was putting marshmallows on the shelves. The accused told her where the marshmallows went and "grabbed" them out of her hand and in doing so, brushed her breast with his hand. She demonstrated with an open hand and the drawing of her right hand across her breasts. The complainant thought it was an accident.
13. Later, when the complainant was doing a price check on a stationery item, the accused approached her, took the item from her and she says that he touched her breast again in a similar way as he had in the earlier incident involving the marshmallows. He told her that he was putting the item back on the shelf. The complainant told him it was a price check item and took it back to the cash register.
14. Later that day, at her supervisor's request, the complainant took her break. She says that when she went into the lunch room there were three other young women and the accused. Two of the young women left together and then the other one. The complainant then says that the accused told her to sit down, that he came over, "grabbed" her left arm, "pulled" her and sat her down. She says that her name-tag fell off her shirt and that he picked it up and placed it in her hand. She then says that he touched her breasts again but using more force than on the previous occasions. She demonstrated an action which the prosecutor described as "cupping" her breast. My observation of her action was a more forceful dragging of a hand over her breasts than that which she had demonstrated on the other occasions. I do not agree with the "cupping" assumption. The complainant then says he placed his left arm tightly around her body. At that time the complainant says that he asked her if she was in grade 11 or 12 and she responded by saying that she was in year 10. He then kissed her on the right cheek and she turned her head. The complainant says that he grabbed her face with his right hand and turned her face to him kissing her three times on the right side of her mouth. She then says he let go of her face and touched her breasts once again. She says that his touch then went down to her thigh and back up to her stomach.
15. The complainant says that she asked the accused what he was doing and he responded, "Okay, I'll stop". The complainant stood up and says that she went to the bathroom and then to the checkout area. She spoke to Ms Owens, the service supervisor. She began crying when she told Ms Owens what she said had happened. She also spoke to Mr Swanston, the store manager and later to Mr Yadav, the assistant manager. Both of these men observed that she had been crying.
16. The prosecution relies upon the distress that she exhibited and what she said immediately after the incident to those with whom she came into contact as supporting what she said had happened.
17. The accused came to Australia from India in May 2007. He was 48 years old at the time of the incident. He had practised herbal medicine in India. His English is limited and he had the services of an interpreter for this trial. His evidence is to be treated in the same way as any other witness in this trial. However, I bear in mind that an accused person does not have to prove anything and I assess his evidence in light of the presumption of innocence. The accused came across as a quiet and softly spoken man. I accept him as a witness of good character and I assess his evidence and the likelihood of him having committed this offence in light of that acceptance.
18. Mr Sahu Kahn, who appeared as counsel for the prosecution, suggested that the accused was evasive in his evidence when cross-examined. I did not form that impression. None of the examples that Mr Sahu Kahn gave when pressed seemed to indicate to me anything other than an appropriate response to the questions put. Mr Sabharwal, who appeared as counsel for the accused, submitted that the accused was doing his best to answer and that I should make allowance for the difficulties concerning the use of an interpreter where a witness has some understanding of the language being interpreted. I have taken that submission into account in my assessment of the accused's evidence.
19. As far as the occasion on 22 May 2008 was concerned, the accused said that he had assisted the complainant to open "chip" boxes. He denied, however, any incident where he grabbed her hand, or sought to hold it. He also denied that he had specifically asked her to have coffee with him or had any further conversation with her about having coffee.
20. As far as the occasion that occurred on 31 May 2008 was concerned, his account of the incidents that had occurred differed in crucial aspects from the complainant's narrative.
21. He agreed that the first incident on that day involved him asking the complainant if she worked in confectionery and that he had told her where to put the marshmallows. However, he denied grabbing the packet of marshmallows out of her hand or brushing his hand over her breasts.
22. What he said about the incident with the stationery item and the confusion over the price check generally accorded with what the complainant said. The accused said that he took the item from her hand on two occasions to put it back on the shelf but that he did not touch her breast. He said, "That product I took from her hand, there was no point to touch her breast". He agreed that she informed him it was a price check for that item and she then took the item to the checkout.
23. The accused said that he went into the lunch room to drink some water. There were three girls in the lunch room. After some time, two left and the complainant came in. The accused says that the complainant was about to sit next to a girl in the room but saw him and came and sat next to him.
24. After sitting down, the accused said that the complainant was using her mobile phone. He thought she was playing games on it. At about then, the complainant's name badge and keys dropped. The accused picked up the keys, the complainant picked up her name badge. The accused says that the complainant asked the accused to fix her name badge. The accused said he felt uncomfortable and that he left and moved to another table. This, he said was after the last girl had left the room. He then described the complainant coming over and asking him what he was doing when he was rinsing his mouth out with water. He said the complainant left the room to go to the toilet. When she returned, he described a contact collision between the two of them. His evidence was:
Now what happened as [the complainant] came in?---Straight away from door [the complainant] was coming to the bubbler.
Where were you?---At the bubbler.
What happened?---Slightly we collided.
And what part of your body made contact with her?---Hands. Accidentally we collided, I cannot say what part, but hands I'm sure.
Did anyone say anything?---She didn't say anything but as like child we say - I said sorry.
And I think you indicated a hissing?---Like hissing noise from mouth and child I - I addressed her like sorry and - - -
Did she say anything?---No then I left room, came down.
25. The accused denied each of the allegations of kissing the complainant on the mouth and touching her breasts and thigh.
26. The evidence given by the other witnesses called by the prosecution show that the complainant was distressed by whatever had happened in the room (which is variously described in the evidence as a tea room, lunch room and meal room). There is not a history of factors between the complainant and the accused which might produce or be referable to circumstances other than the untoward actions of which the complainant has given evidence. That gives strong support to an inference that may be drawn of an encounter such as the one deposed to by the complainant. It is quite inconsistent with the circumstances that the accused says took place. The incident that the accused describes is hardly likely to trigger anything like the reaction exhibited by the complainant.
27. Evidence of what the complainant said to Ms Owens, the service supervisor, and to Mr Swanston, the store manager and Mr Yadav, the assistant manager, was given, presumably in reliance upon s 66 of the Evidence Act 1995 (Cth). That section permits hearsay evidence to be given in criminal proceedings where the maker of a representation has or is to be called if, when the representation was made, the fact asserted by the representation was fresh in the memory of the maker. The evidence so adduced is evidence of consistency of conduct and also, by reason of s 60 of the Evidence Act 1995 (Cth), evidence of the facts asserted by the representation.
28. That feature makes it important to consider carefully just what that asserted fact can be said to be in each of the representations that can be ruled upon.
And what did she tell you?---She told me that she was in the tea room and she was filling up her drink bottle and then someone came up behind her and was touching her and kissing her.
And did you see [the complainant]?---Yes, I spoke to [the complainant] at the time, with Michelle there, asked what had happened, and she indicated that she had an incident in the tea room with one of night fillers, and that she'd been kissed on the cheek and that he'd brushed across her chest.
Mr Yadav, did you ask [the complainant] to tell you what had happened?---Yes.
Did she say, "I was in the lunch room and then Anil came up to me from behind and started kissing me"?---Yes
32. Ms Pedler had been in the tea room briefly and had left after the two young women that the complainant had said were in the tea room when she was there. She later said that she had overheard a conversation where the complainant said to Ms Owens "that someone in the tea room had tried to feel her between her legs and tried to kiss her and just being a little bit inappropriate with her ...".
33. It can be seen that there is a degree of variation in the facts asserted in the representations to these witnesses and the evidence given of the actual incident by the complainant. On the other hand, there is a consistency in the inappropriate touching and kissing although the detail varies. However, I must say that I am troubled that the very specific allegations now made in the complainant's evidence are not really confirmed by the representations that she made to her fellow workers.
34. Mr Sahu Kahn also sought to rely upon the evidence of Constable Egan who took a statement from the complainant three or four hours after the incident. The passage of evidence given by Constable Egan was:
And what did she tell you?---She told me that earlier that day she'd been working at Big W - - -
MR SABHARWAL: Again, your Honour, there's an attempt to lead first [h]and hearsay, but she's given her evidence, she's made a statement to police, is there any point in - - -
HIS HONOUR: Well, I don't know, that's a matter for Mr Sahu Khan. But the way he's adducing it is not particularly satisfactory, Mr Sahu Khan.
MR SAHU KHAN: Yes. What was the complaint?---The complaint?
Yes?---The complaint was that another employee of Big W Woden Plaza, where the young girl [the name of the complainant] worked, had earlier that day touched her on the breasts a number of times and that he had then followed her into the meal room of the store where he again touched her breasts a number of times and kissed her on the lips and had held her in a way that she was unable to move away from him.
And what did you do after taking - did you take a formal statement off her?---Yes, I took notes of the conversation that night and then the following day [the complainant] and her parents attended Woden Police Station and I took a formal written statement from her.
35. A qualification to s 66(2) of the Evidence Act 1995 (Cth) permitting evidence of a hearsay representation when the occurrence was fresh in the memory of the maker is contained in s 66(3). That subsection provides:
If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
37. As to the application of s 66(3), in R v Esposito (1998) 105 A Crim R 27, Wood J observed (at 34):
... I do not mean to suggest that s 66(3) will absolutely exclude as inadmissible, hearsay evidence from a witness of all representations made to him by another person who is available to give evidence, and which relate to matters other than identity.
In each case, the question will turn upon the purpose for which the representations were made by that other person. Clearly on one side of the dividing line will be a statement, prepared in the form of a proof of evidence, crystallising the product of one or more interviews with him. On the other side of the line will be the product of routine investigations, where it is not known whether the person spoken to and making the representations is a suspect, or a potential witness.
38. In Saunders v The Queen [2004] TASSC 95; (2004) 149 A Crim R 174 at [60], Crawford J considered that giving information to a police officer immediately or shortly after an incident to assist an investigation could occur in circumstances where giving evidence at prospective court proceedings might not form part of the representor's purpose.
39. It seems from Constable Egan's answer to the last question set out above in [34], that, on the face of it, the statement was made for the purpose indicating the evidence that the complainant would be able to give. Whether it can be fairly said to concern the identity of a person was not argued before me but the evidence was not sought to be adduced for that purpose. The fact that it may have been "preliminary" to the making of a formal statement would not exclude it from the scope of s 66(3) so long as it appears that the purpose of the statement is to indicate what evidence the person would give as a witness in the proceedings. In Stevens v McCallum [2006] ACTCA 13 (30 June 2006) at [169] the Court of Appeal observed that s 66(3) does not exclude from its exclusionary scope statements merely because they are "preliminary" or a first draft so long as it appears that the purpose of the statement is to indicate what evidence the person would give as a witness in proceedings.
40. The line between providing information to assist an investigation of what took place and indicating the evidence that the person who gave it may be able to give is undoubtedly a fine one. However, in circumstances where there is no evidence as to the purpose of the person making the representation, it falls to the party seeking to adduce the evidence to establish its admissibility. That has not been done in this case.
41. The representation to Constable Egan also contains one significant contradiction to the complainant's evidence at trial, that being the assertion that the accused was in the meal room with others when she entered it. The evidence at trial is clearly inconsistent with her account to the police officer that the accused "then followed her into the meal room of the store".
42. In any event, because of what I take to be Mr Sabharwal's objection to the admissibility of this evidence, I rule that the complainant's statement to Constable Egan is inadmissible. As to that part of the statement that is inconsistent with her evidence, as that was not put to the complainant when she gave evidence, that also does not assist me.
43. Evidence given by Ms Pedler, the young woman who remained in the lunch room when the two other young women left, does not affirmatively support either the complainant or the accused. Ms Pedler is not sure who entered the room first. She can say that the complainant and the accused were both in the room when she left and she further says that the complainant and the accused were not sitting together. However, the effect of the complainant's evidence was that she was not seated until Ms Pedler left and that it was the accused who told her to sit down. The accused, for his part, said that the complainant came in and sat down near him at a time when Ms Pedler was in the room.
44. A peripheral issue relates to the occasion outside the lunch room where the complainant alleges physical contact took place between her and the accused. There is some disconformity in the account given by the complainant in whether any touching of her breasts by the accused in the incidents involving the marshmallows and the stationery item was with an open or closed palm. On the complainant's evidence, in each case the accused had an object in his hand when his hand was said to be in contact with her breast. The demonstration that she gave in her evidence did not indicate that was so. In the result, there is a reasonable possibility that any touching on both these occasions was accidental and has been construed by the complainant in a different light to what actually happened.
45. Another aspect that I must take into account is whether, on what the accused said took place as to the discomfort over the incident with the name tag, the rinsing of the accused's mouth with water, the accidental collision and the "hissing noise from mouth [as to a] child" was misinterpreted by the complainant. If that were so, then the matters concerning the earlier occasion which troubled the complainant might not bear the less favourable connotation that she placed on them. As I have said, the accused can rely upon his previous good character to support the evidence that he gave as to what took place as well as the likelihood of his having committed the offence charged. It is these aspects that weigh heavily in his favour.
46. This is very much a case which depends upon the proper application of the standard of proof required to make out the charge. A very heavy suspicion of something untoward having happened is not enough. I have a reasonable doubt that the accused dealt with the complainant in the particular manner that she described in her evidence.
47. In these circumstances, the offence as particularised has not been made out. I find the accused not guilty of the charge.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
R
Sharma [2009] ACTSC 154
(1998) 197 CLR 250
A verdict of acquittal was entered; the accused was found not guilty because the prosecution had not proved the particularised offence beyond reasonable doubt and certain hearsay representations were inadmissible under s 66(3) Evidence Act (Reasons [46]–[47], [42]).