R v Wong [2022] NSWDC 257 | Case summary

R v Wong [2022] NSWDC 257 | Case summary | Zoe

[6]

The complainant's account of the offending

The complainant said that whilst she was in this state, the appellant indicated that she had trouble with her muscles, lots of 'knots'. With her consent, he commenced to massage her down her back and along her arms. In the process, he unclipped her bra, again with the complainant's consent, massaged her back and reclipped the bra.
The appellant then requested that she turn over, which she did, and asked that she remove her bra, which she did. A towel was placed across her breasts and he massaged her neck, shoulders and ran his hands down her torso. The appellant was doing this whilst standing at the head of the table, over her head. He placed her shirt over her eyes; explaining that the light was too bright; and continued to massage her.
The complainant's evidence was that it seemed to her that the appellant's hands were getting closer and closer to her breasts, under the towel. She said that at some point he started to touch her breasts. Instead of going around, he put his hands over them, touching her all over the breasts. She said it was not just one time, but a repetitive move from him. Both her breasts were touched.
She said that the towel slipped off her chest and described feeling "terrified" as she observed that the appellant's face came very close to her breasts. She estimated that his head was 1 cm away from her breasts and she recalled seeing his mouth open. She asked, "What are you doing?" and recalled him responding "I'm sorry. I'm sorry. I was not thinking clear". She said "I'm going. I'm leaving. This is so unprofessional". She said he then left the room. She then put her clothes back on and walked into the reception area. She recalled that as she did this, he followed her and said he was sorry again and that he had been "misunderstood" and that he hoped that she would come back to continue with her treatment. But she told him that she was not coming back and asked him what was he thinking when he was touching her?
She complained to police that afternoon.

[9]

The appellant's case

The appellant volunteered to participate in an ERISP. Only part of that was played on the appeal. A transcript of the interview was Exhibit 8 at the hearing in the Local Court.
In the ERISP, the appellant told police that: 1. he did not place his hand on the complainant's breast; 2. he did not touch the complainant's nipple; 3. he did not observe the complainant's breasts; 4. his hand was close to, but not on, the complainant's breast; 5. he did not believe that he had 'overstepped the line'; 6. he did not attempt to make the mood 'intimate'; 7. he did not touch the complainant's breast in the way she described when put to him or on any of the subsequent occasions it was put to him; 8. he did not touch her breast then apologise for doing so; 9. he did not massage her breast for his own sexual gratification.
Reference to other parts of what the appellant said in his ERISP will be made later in these reasons. The appellant elected to give evidence at the hearing. He adopted what he had said in the ERISP as being truthful.
He said that he massaged the side of the complainant's chest and stomach area, close to her breasts, as he had done on many occasions with female clients.
The appellant said that he apologised to the complainant because she had appeared upset. He said he assumed that she was upset because of issues she had reported in her consultations with him. This included her suffering pain as part of the home exercise program he had given her. He later explained in re-examination that the exercises were part of an app downloaded to the complainant's phone and that it recorded the information as to the level of pain experienced by her. He said that he had told the complainant that the shockwave cellulite treatment did not provide the whole benefit; and that in order to obtain optimal results, she needed to do the home exercises. He said that when the complainant had mentioned that she had experienced pain, he had offered to purchase for her a machine for about $200 and this appeared to make her upset. He sensed that, having been told the treatment was for free, she felt he was trying to sell things or get money off her. He said she never complained to him about his sexually touching her or suggesting that he had.
In cross-examination, when confronted with the statement (uttered in the CCTV footage) that he had not been "thinking straight", the appellant said that he said this because the complainant was upset. He did not know why, but he had been insistent, and thought that he may have raised his voice and come across unprofessionally when he attempted to persuade the complainant, two or three times, to perform the home exercises or to buy the $200 machine.
The appellant said that he had only one prior offence, for drink driving. He said that following the allegation made against him, the Physiotherapist Registration Board suspended him from working on female clients.
In re-examination, he said the complainant filled out a form on a daily basis on her app and this was communicated to him as part of the clinical records and that this had been discussed on her second visit. The appellant sought to tender a document said to record the complainant's reference to experiencing pain, but the document was objected to and its tender was refused.

[11]

The Magistrate's reasons

The Magistrate reviewed the evidence for the Crown and the appellant.
Her Honour noted that in her police statement, the complainant did not refer to the appellant massaging her breasts. Her Honour also noted that there was no reference in her police statement to her telling the appellant that he had touched her breasts. As to the second of those statements, her Honour accepted that the omission was not, as the prosecutor had contended, 'nominal and peripheral'. Curiously, however, her Honour did not specifically comment upon the first of the omissions from the police statement.
Her Honour determined that the complainant was a clear and compelling witness. It appears that her Honour was influenced by her observation of her demeanour: "Her version was concise and retold in a straightforward manner with - it appeared to me - little emotional embellishment".
Her Honour did, however acknowledge that there were "variances in her evidence when demonstrated with reference to her statement".
Her Honour then referred to the CCTV footage. She appeared to be struck, in particular, by the appellant's absence of an explanation for why he felt that the complainant was upset and why he apologised. Her Honour regarded the exchange as telling, coming as it did after the completion of the session.
Addressing the appellant's evidence, the learned Magistrate was struck by the circumstance that the appellant's explanations for why the complainant was upset - the first of which involved a discussion about the complainant's inability to complete home exercises or, without doing so, the results of the shockwave treatment would be unsuccessful; and the second of which was a sense that she had experienced pain during the massage - had not been put to the complainant in cross-examination.
The Magistrate noted the character witnesses called by the appellant and acknowledged that the allegations against him did not sit with the character depicted by these witnesses.
The Magistrate then turned to the elements of the offences charged. Initially her Honour turned to the offence on sequence 2 and explained why she dismissed that charge.
The Magistrate then turned to the offence on sequence 1.
Her Honour accepted that she should give herself a Murray direction and Liberato direction. She reiterated her acceptance of the complainant's evidence as being straightforward and credible; albeit acknowledging that there were some differences in her evidence at the hearing and what she had said in the police statement. Indeed, her Honour rejected the complainant's evidence that she had told the appellant that he had touched her breasts. But she did accept that the complainant had effectively complained, by asking the appellant what he was doing.
After referring to the competing accounts, she again rejected explanations given by the appellant as to why he thought that the complainant was upset. Her Honour thought it was significant for a professional (physiotherapist) in the appellant's submission to tell a client that he was not 'thinking straight' and/or was 'sorry and embarrassed' following the supply of the professional service.
Her Honour appeared to accept the complainant's evidence when she disputed that there was any misunderstanding, disputed experiencing pain and denied discussion about equipment she needed to purchase. Her Honour rounded off her reasons with a series of questions which, read in context, were adverse to the appellant's position: "So, what was (the appellant) repeatedly apologising for? What was he not thinking straight? Most importantly, why was he 'sorry and embarrassed'?"
Her Honour then answered those questions by stating that the Court could "see one reasonable and logical response to that question". This was that the appellant knew that during the massage, he had 'crossed the professional line' and placed his hands on the complainant's breasts.

[12]

The appellant's submissions

The appellant submitted that there were material inconsistencies in the complainant's version in relation to fundamental matters: first, the nature of the touching and, secondly, the complainant's contemporaneous reference (by way of complaint) to the appellant at the time. As to the touching aspect, the complainant had told police in her witness statement that during the massage, the appellant simply "stopped both of his hands on" her breast, "keeping them" there for "more than a couple of seconds". But at the hearing, she said that the appellant had touched her "all over the breasts … it was not just one time; it was a repetitive move from him" in which he both massaged her breasts and then stopped his hands on them. The difference was that in the first account, the touching was of a stationary kind. In the second, the touching was one of on-going motion.
As to the second inconsistency, through the course of her cross-examination, when asked whether she complained that the appellant had touched her breasts as she was leaving the practice, the complainant said: "I ask him what he was doing. Yeah, I told him that he touched me, my breasts, without my - without me agreeing."
But in her evidence in chief, the complainant had only asked "what are you doing?" without the assertion which emerged in cross-examination. Thereafter, in re-examination, she gave evidence which, fairly read, cast doubt upon her actually making the assertion expressly at all. To her mind, it was self-evident what she meant when she asked what the appellant was doing. When she asked him the question, it impliedly conveyed to the appellant her query as to "why are you touching me in that way". The appellant's Counsel argued that she was resiling from the evidence she gave in her cross-examination.
Counsel for the appellant acknowledged that the complainant may have had language difficulties (as much as the appellant), but even if, as appears, the complainant interpreted the question about complaint at a different point of time to what the cross-examiner was asking her - it appears she was interpreting the question about complaint at the time the touching occurred, rather than when she was leaving the premises - the point of the cross-examination was that she had not said anything about the complaint to the appellant about his touching her during the massaging in her police statement.
When added to doubts about the duration of the contact, which she did no more than estimate that the touching occurred for "more than a couple of seconds", there was significant doubt about her reliability which, alone, cast reasonable doubt upon whether the Crown had made out the element of touching.
In her Honour's reasons, there was acceptance of the complainant as a witness of credit, but no finding about the reliability of her evidence.
Before this Court, Counsel for the appellant acknowledged that, for this type of offence, s 293A of the Criminal Procedure Act 1986 (NSW) was engaged (which provision was not referred to by Her Honour). Her Honour administered to herself a Murray direction [2] , which, with respect, may more properly have required her Honour to give a direction more in accordance with Ewen [3] . It was argued that if her Honour had scrutinised the inconsistencies in the complainant's evidence for what they were, her Honour would have had a reasonable doubt about the complainant's evidence.
In this regard, the appellant submitted that, as was demonstrated in Pell v The Queen (2020) 268 CLR 123 on appeal, the appellate court should examine the record to see, notwithstanding a positive assessment by the tribunal of fact as to the complainant's credibility and reliability, the existence of 'inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence' the court could be satisfied that the trier of fact, acting rationally, ought nonetheless have obtained a reasonable doubt as to the proof of guilt' (at [39]). The appellant argued that this standard should apply to appeals in this Court, by rehearing, from convictions in the Local Court.
The appellant also submitted that although the learned Magistrate purported to give herself a Liberato direction, her Honour misapplied it. The appellant argued that the Crown did not disprove the appellant's account as a reasonable possibility. The appellant's case, his Counsel argued, was that, when massaging the complainant, he massaged her at different parts of the complainant's body and got too close to her breast and that the complainant mistook this for touching of her breast. Further, when he apologised to her, as she was leaving the premises, this was not, as the Crown would have it, unequivocally referable to touching of the breasts, but the apology was at least equally, if not more, explicable to the appellant's concerns that: she appeared to him to be upset when referring to the pain she had sustained when undertaking the home exercises; he was frustrated that the treatment he had given to her over the two visits, a week apart, was inefficacious (in circumstances where she had not performed the 'home exercises') and might require the complainant to spend some money ($200) to pay for a machine when the whole basis for the complainant seeing him in the first place was the inducement that the treatment was to be free of charge; the complainant may not have expected that he would need to massage her in the area very proximate to where her breasts were. The appellant's Counsel in this Court referred to a text message (Exhibit 7 at trial) which was said to support some the appellant's beliefs in this regard. In that message, he apologised for his "misunderstanding of your needs" and otherwise 'promised', in effect, to find alternative methods to try to suit those needs. It did not appear that he was cross-examined in the Local Court as to this assertion of his position.
The appellant's Counsel also complained that at the trial, her Honour did not admit into evidence a document which the then accused's Counsel tried to admit, for the purposes of re-establishing his credit, as to the accused's belief that the complainant had experienced pain following or flowing from the first visit to him a week before the offending.
The appellant's counsel argued that, unlike the complainant, his evidence at trial was consistent with an earlier account, given in an ERISP. It was not the case, for example, that the prosecutor exposed any inconsistencies in accounts given in the ERISP and the evidence that the appellant had given in Court.
The appellant's argument was that it was not enough to acknowledge that there were competing versions of what had occurred, as between the complainant and the appellant, and for the Magistrate to reject, as less preferable, the appellant's account to the complainant's account. Still less was it necessary for her Honour to be completely satisfied beyond reasonable doubt as to the correctness of his version of what had occurred. It was enough for him to be found not guilty that the Magistrate believed that his account might be true. But if her Honour did not accept that it was, it still remained necessary for her Honour, if she was to put aside the appellant's version, to still remain satisfied beyond reasonable doubt that the Crown had proven its case.
Instead, in the immediate lead up to her finding that the index offence was made up, her Honour raised a series of questions which, alone or in combination, pointed to the improbability of his account, without returning to the fundamental question - plainly dependent upon a view that the complainant was both credible and reliable - whether the prosecution had established the appellant's guilt beyond reasonable doubt.
I understood the appellant also to submit that although her Honour did refer to the character evidence adduced by the appellant, she did not explain whether it influenced her Honour's determination of how that evidence bore upon the acceptance of his credibility when assessing his account; as distinct from the likelihood that someone with that good character could have committed the offence using the evidence as being relevant to the discrete question concerning the offending (which had been taken into account by the Magistrate).

[13]

The Crown's submissions

The Crown conceded that there was inconsistency in the complainant's account as to how she was touched, although it disputed whether she was inconsistent in how she had expressly complained to the appellant about her touching her breasts.
Nevertheless, any perceived variations in her evidence did not represent a glaring inconsistency but, having regard to the circumstance of her being a native Spanish speaker, she was trying to explain the offending to the best of her ability. The Court should accept that she asked the appellant as to what he was doing and her account of what the complainant said in response had, as the learned Magistrate determined, the ring of truth. She had not complained about any impropriety in the first visit. The fact that she did complain about his conduct during a second visit was consistent with her genuinely experiencing an unfamiliar and shocking event.
It was not just the complainant's evidence that the prosecution relied upon. It relied upon the CCTV footage (Exhibit 10), in which, it was suggested, there was no real doubt that he was apologising and expressing his embarrassment in touching the complainant's breasts. That could only be referable to the complainant asserting that what had occurred was not common "for her". The appellant was an experienced physiotherapist. For him to have explained that he hadn't "been thinking straight" was consistent only with an acknowledgment of wrongdoing.
The Crown argued that the text he sent at 1:35pm, also containing an apology was also consistent with an admission of guilt.
The Crown also relied upon what it depicted as a lack of responsiveness in his evidence. The Court was invited to accept that he thought that the complainant was upset as to what he had been doing, but the appellant did not clarify his position. The Crown relied upon the complainant leaving the premises promptly after the alleged offending and not returning to receive further treatment.
The Crown submitted that it was appropriate for the Magistrate to reject the appellant's account. It was not put to the complainant that the appellant had raised his voice (providing one reason why he might apologise to her) and some of the other explanations for the apology were also not put, or put clearly to the complainant.

[15]

Was the appellant's account plausible?

As the High Court observed in De Silva v The Queen (2019) 268 CLR 57 the Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the trier of fact may be left with the impression that the evidence on which the accused relies upon will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. In the context of the third of these questions (if the first two were answered adversely to the appellant), it was also appropriate for her Honour to have generally directed herself, if not be mindful of, the onus of proof; and, in particular, that the burden rested upon the Crown (relevantly) to prove that the appellant sexually touched her (along with all the other elements), that the burden never shifted to the accused; and there was no obligation whatsoever on the accused to prove any fact or issue that is in dispute; nor for the accused to prove his innocence but for the Crown to establish his guilt. There was no direction about the onus of proof in such (or similar) terms.
The appellant's account was that, although he went close to touching the appellant's breasts, he did not touch them. In the part of his record of interview played on the appeal, he physically demonstrated the area that was 'close' to the complainant's left breast which, he accepted, he had touched. He was a physiotherapist of significant experience and he had dealt with female clients (such as Ms Hockley) before without complaint. It was likely he would have known if he was touching the complainant's breast or breasts under massage if he did so, even if the complainant was covered by a towel. He also sent a contemporaneous text message (Exhibit 7) which, although it contained an apology, was consistent with the appellant's explanation for the apology: that he was regretful that he misunderstood the appellant's needs and intended, in the near future, to make future improvements and adjustments to his (anticipated) future treatment of the complainant. This last piece of evidence struck me as being very material, but it was not referred to by her Honour in her reasons. Given the physiotherapist's experience, and the professional stakes for him engaging in the conduct of which he was alleged to have committed, it would have been brazen, to point of chutzpah, for him to apologise only for a misunderstanding of the complainant's needs if he had massaged her breasts and gone on, in his text, to be writing expectantly about her future treatment needs which he intended to fulfil.
Another relevant contextual circumstance, in addition to the professional stakes for the appellant of an allegation that he sexually touched a client, was the nature of the interaction between the complainant and the appellant. She was to be the beneficiary of an essentially 'free' service; with the only 'consideration' being an expectation upon the complainant to provide what, from the appellant's perspective, were favourable reviews on social media of such treatment, with the commercial objective of attracting further customers. All of that would have been jeopardised, indeed obliterated, if the service was less than satisfactory in meeting the complainant's needs; let alone if he engaged in criminal activity towards her. If ever there was a time for the appellant to act impeccably towards a client, it might have been thought that this was such an occasion. These contextual circumstances might suggest that if one was to stand back, one might consider that an allegation of the index offending was improbable, before one started to carefully scrutinise the evidence in the Crown case.

[17]

Browne v Dunn

On multiple occasions, the Magistrate referred to the circumstance that the appellant's explanations for his apology had not been put to the complainant when the latter gave evidence. Her Honour appeared attuned to and applied the rule in Browne v Dunn [6] .
This rule is applicable in criminal proceedings. As the High Court stated in Hofer v R (2021) 395 ALR 1 ("Hofer"), it requires that where it is intended that the evidence of a witness on a particular matter should not be accepted, that which is to be relied upon to impinge the witnesses' testimony, should be put to the witness by the cross-examiner for his or her comment or explanation. [7]
However, as has recently been pointed out [8] , in Browne v Dunn itself, Lord Herschell himself points out that in cases where notice has been given to a party, specific questions need not necessarily be put to the witness of or from the other party. In this context, in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 (a civil case), Meagher JA said (Gleeson JA and Leeming JA agreeing) at [42] about the rule that: "There are many ways in which a party or other witness might sufficiently be put on notice that their evidence on a particular subject or to a particular effect is challenged as untruthful, and as to the basis of that challenge."
It has been held that such prior notice may, in the context of a criminal proceeding, derive from a defendant's record of interview [9] .
It is clear that her Honour discounted the weight to be given to the accused's evidence as to the circumstances, including his motivations (and understandings of the complainant's apparent state of being 'upset'), for apologising to the complainant on account of matters not being put to the complainant when she gave evidence. It may be accepted that this may be an available sanction for infringement of the rule [10] . But it is not the only one and care needs to be taken as to the proper course to be taken where the rule is infringed in a criminal proceeding, which is not only adversarial but also accusatorial in nature. [11]
In my view, her Honour erred in doing so. Her Honour appeared to neglect the circumstance that at least some of the appellant's explanations for his apologies, such as his perception that the complainant had appeared uncomfortable, or his inadvertently causing her pain, his understanding about the pain she experienced from home exercises, and a discussion with the complainant about alternatives (Q&A 524, Q&A 602, Q&A 605, Q&A 618, Q&A 628 Q&A 640) had already been made by the appellant in his ERISP. The prosecutor was therefore on notice of such explanations and was in a position to raise matters himself with the complainant in her evidence in chief. Indeed the prosecutor did seek, to some extent, to anticipate matters that the appellant might wish to rely upon, when leading evidence from the complainant in her evidence in chief. Thus the prosecutor raised with her whether she had suffered pain after her first visit on 6 May (T 16.37), and whether the massage he administered prior to the touching had left her feeling uncomfortable (T 25.27). These were topics eventually explored in cross-examination of the complainant (T 28.7 - 28.17), but she was also asked, in chief, about her home exercises (T 27.40 - 27.49). On the Crown case, none of this was necessary or, put a different way, the only forensic purpose for doing so was to anticipate the appellant's case.
To the extent that evidence was given by the appellant in the hearing consistent with topics he had given information to police about in his ERISP, and the Crown was accordingly on notice about, I do not accept that fairness to the Crown dictated that they all be put to the complainant. The Crown could not have been under any doubt that the complainant's evidence was likely to be challenged; in a way that would centre around the content of conversation between the appellant and the complainant in the second visit, where the alleged offending occurred.
I note that there is no indication in the transcript whether any offer was made by the Crown to recall the complainant, which might have been expected if the prosecution was discontented with the appellant giving the evidence that he did if matters had not been put to the complainant [12] . Nor is it clear that the prosecutor even invited the Magistrate to direct herself that the rule in Browne v Dunn had been infringed, or the consequences which might follow if it was infringed [13] . What is, however, apparent is that there was no objection taken during the course of the appellant's Counsel taking the evidence in chief from the appellant on the basis that part of it infringed the rule.
In this regard, I note the limited scope of the debate. Her Honour was focussed upon two distinct, albeit related, aspects as to the appellant's state of mind, being (a) why he apologised (repeatedly) to the complainant as he did and (b) why he considered that she was upset. It should be accepted, of course, that conversation between the complainant and the appellant would be relevant to both of these matters and, where there were differences between the appellant's and the complainant's accounts of those conversations, subject to the matter I alluded to, being the Crown's prior notice of the appellant's position, or version of conversations, there was scope for the Magistrate to legitimately think that the appellant's version of what was said might have been raised for the complainant's consideration. Even so, there were obvious limitations in what could be put. It was unnecessary for the appellant to raise for the complainant's consideration in cross-examination what his state of mind was just as it was unnecessary for the appellant to put to the complainant what her actual state of mind was (or the reasons for it); which was a subject that it would have been inappropriate for him to speculate upon.
This was, substantially, a 'he said, she said' case. Once the learned Magistrate's reasoning was erroneously affected by the view that the rule in Browne v Dunne had been infringed, and thereby permitted her Honour to discount the weight given to evidence by the appellant, the reasoning effectively also bolstered the credibility and reliability of the complainant.

[18]

Reversal of onus

Further, although no additional weight should be given to the appellant's evidence because he elected to give evidence, he bore no onus of proving the veracity of his account. Yet, in my view, the questions raised by the learned Magistrate, just prior to her Honour's expressed determination of his guilt, was indicative of error in at least three senses. The first is that it reversed the onus of proof of an important fact in issue - why the appellant apologised as he did - so as to implicitly cast upon him the burden of proving why he apologised. The second is that the appellant's explanation for the apology was rejected in circumstances where her Honour had excluded a document which might have helped rehabilitate any challenge to the credibility of the explanation for his apology. The third, perhaps more fundamentally, is that the reasoning misapplied the Liberato direction that her Honour gave herself.
There was force in the prosecution's argument that Exhibit 10 (the partial transcript of the CCTV footage) indicated more than a misunderstanding in the appellant as to the complainant's treatment needs. In particular, the complainant's recorded complaint that what the appellant had done was, to her way of thinking, 'uncommon', and the appellant's statement that he had not been "thinking straight" was an admission, at least, that he had done something spontaneously (that is without "thinking straight") which was 'uncommon' or, perhaps put another way, uncharacteristic. At the very least it gave rise to a suspicion that that which was uncommon was his touching the complainant on her breasts. But in my view, the admission was not so obviously unequivocal so as to amount effectively to a confession.
Further, it was not, in my view, utterly untenable that the appellant had raised his voice, because of frustration, or apprehension or anxiety, that the applicant explained to the complainant that she may need to incur some expense in obtaining more effective treatment if she did not perform the home exercises. Further, it is not uncommon that certain people are naturally apologetic by disposition or may become so because of the circumstances; in a way which is not indicative of an admission. It will be recalled here that the appellant was looking to the complainant to favourably review the treatment he was administering to her. The number of times that the appellant apologised is not especially probative in itself. What mattered more was the context in which the apology was made including the reason for it.

[19]

Rejection of tender of document

Her Honour rejected the tender of a document that Counsel for the then accused (who did not appear at this conviction appeal) had raised. The document was not identified and was accordingly, not before this Court. This Court can only refer to the exchange that occurred in the Local Court, which appeared at T 50-54 on the day of the hearing.
The context for the exchange was the appellant giving evidence in chief, when asked why he apologised to the complainant as she was leaving, because of his observation that she was upset and he attributed this to pain from the home exercises he had given her after her first visit (T 39.47). The appellant was not asked, in terms, whether a report by the complainant about pain from the home exercise was verbal or written, or both.
But under cross-examination, he said again (T 46.8 - 46.11): "There was actually a concern before the treatment (on the second visit - the occasion of the alleged offending) started. We actually sit down, going through the report of her exercise program and she reported verbally, also reported on a report, that she had been getting pain and she could not complete it. There's a report as well which is by her." (emphasis supplied)
There was then further cross-examination, in which the appellant had repeated his account that the complainant had complained of pain following from home exercises which the complainant had not been able to complete. He was then cross-examined on what the complainant said or did which led the appellant to think that she was upset. The appellant again adverted to the "conversation about pain" (T 47.21), although added further information about the efficacy of the current treatment plan. Then, at T 49, he was cross-examined closely upon Exhibit 10 and what he meant by his admission as to not "thinking straight". He recalled difficult conversations with the complainant about the treatment methods, the possibility that his treatment was inefficacious and that he may have been 'unprofessional' in insisting that she perform the home exercises lest she need to buy a $200 machine. The effect of this part of the appellant's evidence was that, to his mind, there was a link between the pain the complainant had reported from the home exercise and the complainant being "upset".
Following this, the prosecutor put an account which insinuated that the appellant's evidence of why he apologised to the complainant was false. The clear imputation was that he apologised only because he was aware that he had sexually touched the complainant; and positioned his face 1 centimetre away from her left breast.
As indicated, the evidence does not disclose what occurred, in relation to this document, after its tender was refused. The appellant's Counsel suggested that he might withdraw it, depending on what submissions the prosecution might make. But the Magistrate's refusal to permit the tender deprived the appellant's Counsel of the opportunity to re-establish a challenge to his client's credit.
In my view, the evidence of the appellant in cross-examination as to why he thought the complainant was upset and hence why he apologised, could be regarded as evolving, from the concern about pain from the first session to other matters, and arguably inconsistent. On the appellant's account, it appeared to me that he was consistently concerned that pain had arisen after the first visit; and this may have been linked to a concern about the efficacy of the treatment plan, to the extent that this depended upon the complainant performing the home exercises. The cross-examination, as a whole, suggested that this account was false and therefore that the appellant's account was not credible.
In my view, it was legitimate, in principle, for the appellant's then Counsel to attempt to tender a document, through re-examination of the appellant [14] , which established a basis for his belief that the complainant encountered pain after the first visit a week before. It did not matter whether the complainant specifically drew a nexus between encountering pain and the home exercises, or something else. What was in issue was whether pain was experienced, and had been the subject of discussion in the second visit, and accordingly, may have supplied an explanation for why the complainant was upset and, in turn, further explained why the appellant apologised to her. The appellant had referred to a written report in his cross-examination. He was not asked by the cross-examiner to produce it. Without the document being produced, the appellant's evidence was left in an incomplete state. The weight to be given to his evidence about discussion of pain (and the causes of it) could not be fully assessed. It was open in my view, for the Magistrate to admit the document, if not necessarily for the truth of what was contained in it, but at least for the limited purpose of re-establishing the appellant's credit; which, it is patently clear she took an adverse view of (partly because of her erroneous opinion that the rule in Browne v Dunn had been infringed).
The principal topics that I have addressed so far, alone or when taken in combination, all had the effect of diminishing the Magistrate's view of the appellant's credibility and reliability. This, in turn, paved the way for the ready rejection of the appellant's evidence on the very material question of why he apologised to the complainant in the manner and given the timing that he did.

[21]

Scrutinising the complainant's evidence

In Ewen [15] , the Court of Criminal Appeal urged that the circumstances in which a Murray direction could be made were severely circumscribed, if not outright prohibited, by the terms of s 294AA of the Criminal Procedure Act 1986 (NSW). Nevertheless, it was open to a trial judge, in the circumstances and in the Court's discretion, to direct herself that she should be attuned to addressing weaknesses or deficiencies in the evidence of a complainant.
The learned Magistrate purported to give herself a Murray direction although, as indicated, it was not clear whether or not this was the modified version in accordance with Ewen. Be that as it may, even if it was not, this would not have prejudiced the appellant - to the contrary it would only have assisted him.
With respect, her Honour appeared to gloss over variances of the complainant's account as to how she was touched. In this respect, the alleged offending occurred on 13 May 2020. She reported the fact of touching the next day, but gave a specific account to police as to how that occurred in a written statement, which presumably she signed and acknowledged the correctness about. Less than 12 months later, she gave evidence about how the touching occurred, which was inconsistent. I take into account the matters referred to in s 293A(2) of the Criminal Procedure Act 1986, but even so, for an offence of touching, the inconsistency was in my view, stark. How the appellant was said to have touched her was elementary to the Crown case. It was not a trifling detail. But her Honour did not consider how this important inconsistency bore on the complainant's reliability.
That inconsistency had to be viewed in accordance with the evidence as a whole, including the balance of the complainant's evidence. Within limits, it is of course open for the tribunal of fact to accept some parts of a witness' testimony whilst rejecting other parts. I also accept the appellant's submission that there was a material inconsistency in the complainant's evidence of her complaint to the appellant. This is something which, in fairness, the learned Magistrate acknowledged. I further agree with the appellant that the complainant tried to resile from the statement in her cross-examination, of specifically and expressly adverting, in the appellant's presence, to his touching her on the breasts. If that episode did not adversely affect her general credit, as I think it did, in my view it clearly impinged upon the reliability of her evidence. But the learned Magistrate did not address the implications of her reliability on the basis of that inconsistency or, as previously indicated, the other inconsistent account of how she was touched.
Recognising, as I do, the Magistrate's advantages in seeing and hearing the complainant and appellant giving evidence, I agree with the appellant's submission that too much weight was ascribed to the complainant's demeanour and credibility when the other evidence cast doubt upon her reliability which should have been discerned if, as her Honour purported to do, she had carefully scrutinised the significance of inconsistencies or discrepancies in accordance with a Ewen direction.

R v Wong

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