S v Johnson [2015] TASSC 20

"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] TASStRp 9; [1963] Tas SR 69 at 81; Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 at 99; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117."

1. In Nilsson v McDonald [2009] TASSC 66; (2009) 19 Tas R 173, Blow J (as he then was) with whom Crawford CJ agreed, said at [59]:

"... it is therefore not open to a judge conducting a review under s107 to weigh the evidence and reach his or her own conclusions: Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 per Cox CJ at par7."

1. In Wood v Smith [1991] TASSC 12 (A39/1991), Crawford J (as he then was) said at [26]-[27]:

"26 The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] TASStRp 9; [1963] Tas SR 69 at 81; Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 at 99; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v Shipp at p119 it was for the magistrate 'and not for this appellate court to determine what evidence should be accepted and what weight should be given to it'. The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.

27 There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it."

(a) The Learned Magistrate erred in fact and/or in law in finding the Applicant guilty of the offence(s) where on no reasonable view of the evidence could she have been satisfied beyond reasonable doubt as to the guilt of the applicant.

(b) If the Learned Magistrate rejected the applicants denial that he committed any offence involving the complainant then the Magistrate erred in law and in fact rejecting that denial beyond reasonable doubt

(c) The Learned Magistrate erred in law and in fact in accepting the evidence of the complainant beyond reasonable doubt

(d) The Learned Magistrate erred in law in finding the applicant guilty of two counts of indecent assault in the circumstances where he had only been charged with one such count.

(a) The sentence imposed by the Learned Magistrate was manifestly excessive

(b) The Learned Magistrate erred in law and in fact in not giving proper weight to a previous sentence of imprisonment served by the applicant."

1. The learned magistrate set out in some detail the reasons why she accepted the evidence of the complainant, and the reasons why she did not accept the evidence of the defendant, with the result that she said that she was satisfied beyond reasonable doubt that the defendant assaulted the complainant in the manner described by her. Her Honour said:

"17 I am satisfied that R was a truthful witness. There are certainly inconsistencies between the evidence contained in her statements and her evidence given in court in cross-examination. But in this matter I am of the view that it is also important to give consideration to the fact that these events are alleged to have occurred at a time when she was between the ages of approximately 4 and 6 years of age and she is now only 14 years old. I accept her evidence that at that time she did not appreciate the significance of what the Defendant was doing and it was not until she was older that she realised that what had occurred was inappropriate. She then made the disclosure to her mother and later to her school counsellor and Police. In my view she has attempted to recall to the best of her ability the detail surrounding these allegations.

18 She has been able to describe the room in which the incidents were said to have occurred and I do not think it is surprising or significant that she may not have accurately recalled the colour of the table on which the computer sat and whether the computer chair had wheels or not. She was 13 years old when she gave her statement to police and in that she gave considerable detail. And in court she gave detail when she could, but also indicated when she was unable to recall detail. For example, she said she couldn't remember exactly how old she was when these things happened, but that it was probably after she was 4 years old. Another example is that she could not recall in cross-examination exactly what position the defendant was said to be in when the incidents occurred, but she thought he was lying on his side. This is contrary to her written statement that he was lying on his back. But in the context of this matter, given her young age at the time and the fact that she is still only 14, I do not regard the inconsistencies as anything other than the evidence of a young person trying to recall incidents from 8 to 10 years ago. There is consistency in her evidence that the Defendant was lying down and she was on the computer chair.

19 When asked how long these incidents took she estimated 10 minutes each. When Defence Counsel said he would count in seconds and asked R to tell him when to stop, she stopped him at 12 seconds. This is again an example of a young person with limited perceptions of time, attempting to estimate a time frame, something even adult witnesses have difficulty with.

20 I am left with an overall conclusion that R was giving honest, credible evidence. Her evidence is internally consistent. Her description of the actual assaults has not varied. She has consistently referred to the Defendant sucking on her vagina and her description in her written statement that it was like someone sucking their thumb is a description which has a ring of truth about it. She gave her evidence clearly and considered the questions thoughtfully.

21 Further her mother gave evidence of a change in her attitude toward the Defendant, which corroborates R's own evidence that she began to feel uncomfortable with these actions as she got older and began to understand their significance, and did not want to go and see her Aunt and the Defendant. This is also consistent with the evidence of R and the Defendant that she did not continue to use the computer when she visited. In addition, disclosures were first made when R was 10 years old. Her description at that time I accept is limited because of her embarrassment and her mother being so upset, but it was still consistent with what she ultimately disclosed to police. The evidence of Ms B that R disclosed that the Defendant had put his finger in her vagina is not consistent with other descriptions by R. Ms B's evidence was very brief and she was not cross-examined. In the context of this matter I do not give a lot of weight to this evidence. It was a brief disclosure which led to a full investigation by Police and a detailed statement from R to Police about what occurred.

22 I do not accept the Defendant's denial. I formed the view that he made concessions in non-controversial aspects of the evidence, but that he also attempted to minimise his involvement with R. For example, he minimised the number of times he said R used the computer by saying he only recalled her using the computer twice and her use was not regular. I am satisfied on the evidence of CH and R, which I accept, that she used the computer on a reasonably regular basis when she was younger during visits to her Aunt's home. I consider his evidence of only two occasions, is also inconsistent with the evidence he then gave that he would start the computer for her and go back to check on her, and that she was well able to use the computer. I am satisfied in these descriptions he was referring to more than two occasions.

23 I also do not accept that she was only on the computer for 10 - 15 minutes on each occasion. I consider again this was an attempt by the Defendant to minimise the amount of time and opportunity for anything to occur. There is a further example of the Defendant's attitude to the incidents in his video record of interview (at page 35 of the aide memoire) when he referred to R's mother, CH, not being willing to 'forgive or forget' this incident. He attempted to explain that comment by reference to the distress it has caused his partner.

24 The Defendant referred to the fact that the computer room is not far from the kitchen and living areas of the house and inferred that therefore he was unlikely to have taken the risk of undertaking these acts. I do not accept that that conclusion can be drawn. There may well have been a risk, but I am satisfied that the Defendant took that risk.

25 Having regard to all of the evidence and taking into account my assessment of the credibility and reliability of the witness, I am satisfied beyond reasonable doubt that the Defendant assaulted RH in the way described by her, namely by sucking her vagina. I am satisfied that the Defendant's actions were an assault of R. They involve the intentional application of force directly to her body. I am further satisfied, given the nature of his actions, that his conduct was clearly sexual and indecent being offensive and objectionable conduct. Although her statement tendered in evidence refers to these acts occurring on a number of occasions, given her evidence, particularly her evidence in cross-examination, I am satisfied beyond reasonable doubt that this occurred on two occasions, both in the computer room at the home of the Defendant and DF. I therefore find the charge proved as to two occasions in or about 2005 or 2006."

1. Counsel for the applicant on the motion to review, Mr Richardson, in his written submissions contended that the learned magistrate erred in a number of ways in accepting the complainant's evidence, including failing to address the improbability of the events alleged, failing to address inconsistencies in her account, and making erroneous findings as to her credibility and that of the applicant. However, as I have already noted, it is not open to me in conducting a review under s 107 of the Justices Act to assess and weigh the evidence and reach my own conclusions. It was for her Honour, and it is not for me, to determine what evidence should be accepted and what weight should be given to it. The question is whether upon the evidence the magistrate was able, as a reasonable person, to have come to the conclusion to which she did. In my view she was, and there is no proper basis for me to interfere, whatever my own views about the evidence may be.
2. To adapt to the present case the words of Crawford J, in Wood v Smith (above) at [26]-[27], citing Burbury CJ in Richardson v Shipp (above) at 119, her Honour had all the advantages of observing the witnesses and of coming to a decision whether or not she found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that her Honour's decision was not one to which, as a reasonable person, she should have come. There was evidence, which if accepted by the learned magistrate, as it was, justified the decision to which she came. When a decision depends very much on the credit of witnesses, a reviewing court will rarely overturn it. I would not do so on this occasion. I see nothing exceptional in the circumstances warranting such a course. It was well open to her Honour to reach the conclusions that she did on the evidence before her. I accept the written submissions of counsel for the respondent, Mr Nicholson, in that regard. Minds may differ as to the content and effect of the evidence of the defendant as to the frequency and duration of the complainant's use of the computer and of his presence on those occasions but I apprehend no vitiating error of fact in the learned magistrate's reasoning or her findings as to the credibility of the defendant and the complainant. Those findings were open to her.
3. I should add that whilst her Honour did not expressly state that she rejected the evidence of the applicant beyond reasonable doubt, there is no reason to infer that she did not. Nor is there any reason to assume that she was unaware of the relevant principles in an "oath on oath" case. Counsel for the applicant, Mr Richardson, had carefully explained to her Honour the relevant observations of the High Court in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, and I apprehend that her Honour was instructing herself accordingly when she articulated the basis of her acceptance of the complainant's evidence and her rejection of the applicant's denial.
4. Having regard to all that her Honour said in the passages I have set out above, there is, in my view, no reason to think that her Honour simply found difficulty in accepting the evidence of the applicant but entertained a reasonable doubt about whether it was true. That her Honour apprehended that if she did not believe the applicant she should put his evidence to one side and ask herself whether she was satisfied beyond reasonable doubt of his guilt on the basis of the evidence she did accept, is apparent from all that she said about the evidence of both the complainant and the applicant, and from the commencing words of the concluding paragraph of her reasons for decision where she said:

"Having regard to all of the evidence and taking into account my assessment of the credibility and reliability of the witness, (sic) I am satisfied beyond reasonable doubt that the defendant assaulted RH in the way described by her ... ."

1. Grounds 1(a), (b) and (c) of the motion fail.
2. As to ground 1(d), namely, that the learned magistrate erred in law in finding the applicant guilty of two counts of indecent assault in the circumstances where he had only been charged with one such count, I am of the view that there is no substance to the argument.
3. The complaint was particularised as follows:

"You are charged with, between 1 January 2002 and 30 April 2006, at Ulverstone in Tasmania, unlawfully and indecently assaulting another person RAH, by sucking her on the vagina."

Those particulars are sufficiently wide to embrace more than one act of indecent assault. It is apparent from the transcript that the applicant's counsel was of the understanding that there was only one act charged, however as far as I am aware no particulars were ever sought on behalf of the applicant.

1. Prior to the commencement of the defence case the applicant's counsel said to the learned magistrate:

"Yes, your Honour. I'll just foreshadow something now, but not do it now. I originally intended to - you'll note that the complaint alleges one count of indecent assault. The evidence nominates at least two and possibly three if you divide one of them into break - well - at some stage I'm going to call on the prosecution to identify which one they're talking about, but rather than muck - it's not going to change my client's evidence."

"I'd be asking to address your Honour. I think the best thing to do is simply submit to your Honour as part of my submissions, that at some stage the State has to nominate at least what it is - to be frank, it's not going to change too much what I say, whether they nominated one, two, three, four or five. I don't care. They can't come along here saying 'oh, we only found out today that the - that there's now two or potentially three, because if you read the original complaint, which I've no doubt you've read, that - that (inaudible) suggests there might have been dozens of them. They - and they've had that at least since the 14th November two thousand - no, that's the first - that's the first -... ."

1. Later there was the following exchange between counsel for the applicant and the learned magistrate:

"MR RICHARDSON: Yes. Her original complaint. If you read it -

MR RICHARDSON: - it has - she doesn't say it, and she doesn't identify the occasions, but it has implicit within it that they were repeated. Well, that's certainly how I read it. 'When we regular visited D and Rd I would sometimes use the computer', now I'm leaving some words out. 'Rd would come into the spare room with me and we'd turn the computer on and get it going'. 'When I was little I mostly wore skirts, not every time but sometimes, when Rd came into the computer room he partly closed the door and then - did things'. I mean that's not talking about one event. Now they chose to charge the way they charged. They charged covering a period for when this child was less than two years of age to when this child was just over six years of age. I didn't - I didn't lay the ground rules there, and I know that the Justices Act allows you to amend complaints etc., but that's only where it doesn't work on injustice. They charged it, they led the evidence. I cross examined. The only reason I thought I was cross examining about one count, because that's what's in the complaint, then she volunteers that there's two or three, so in my submission justice demands that the accused only be facing one, but frankly I'm - that's all I'm going to say about it, for this simple reason: He denies any of it. So it doesn't matter whether there's one two or ten. Now what I want - if I can go on then and make my general submissions to your Honour -

1. The matter was not pursued, counsel for the applicant did not formally request that the complaint be further particularised, and the prosecutor did not seek to amend the particulars. The matter appears from the transcript to be left by counsel for the applicant as appears from the following exchange between him and the learned magistrate:

"HER HONOUR: Thank you. Mr Richardson, anything further in relation to the matter.

MR RICHARDSON: Your Honour, look I don't care if you particularise the complaints, because it can't make any difference to our case, one's not more believable than the other, they'll either stand or fall, I just feel obliged to make the point, that they say, I should've particularised the complaint. Unless things have changed, prosecutors lay charges, defence don't, we come along to meet the allegations that are particularised in a complaint. There was one -

HER HONOUR: I think Mr Lyons is making the point that you knew what the allegations were, that you were meeting because you had the statement, but I accept what you're saying about the complaint itself, yes.

MR RICHARDSON: Yes. I - I don't lay the complaints.

MR RICHARDSON: If I come along to meet what I thought wasn't there, it sounded to me like there could've been hundreds of them. So, as I say, anyway, look, I don't - I only said that last thing as a matter of principle.

MR RICHARDSON: I don't really try and dissuade you, I don't care if you break it into fifty charges, the submissions still apply."

1. I take from the entirety of that exchange that counsel for the applicant was rejecting the suggestion that he should have sought further particulars of the complaint, that he was aware of the case his client was called upon to meet, but regarded the prosecutor as obliged to further particularise or amend, but that in any event he had no concern if the learned magistrate were to "break" the particulars down into more than one "charge". He did not seek to dissuade her from doing so.
2. As I have already noted, in my view, the particulars were sufficiently widely drawn as to permit a conviction for more than one offence of indecent assault. The applicant could have, but did not, seek further particulars.
3. Nor do I see any unfairness in the way the hearing was conducted. It was clear that two assaults were alleged and the applicant's counsel cross-examined the complainant in some detail as to each of the two separate occasions on which the two separate assaults were alleged to have occurred. This was not a case where counsel could have regarded the allegations of one or the other the alleged assaults as uncharged conduct. Section 31 of the Justices Act provides that no objection shall be taken or allowed to a complaint in respect of a variance between it and the evidence in support of it. A magistrate is not required to dismiss a complaint in those circumstances absent an amendment to the complaint unless the defendant has been prejudiced by the variance. There was no prejudice in my view.
4. I therefore see no vitiating error in the learned magistrate finding "the charge proved as to two occasions in or about 2005 or 2006". Counsel for the applicant did not seek to persuade the learned magistrate on the sentencing hearing not to proceed to sentence on the two offences she had found proved. There is a proper foundation in law for each of the convictions.
5. Were I to be wrong in reaching that conclusion, then s 110(2)(f) of the Justices Act permits me to amend any defect in the proceedings before the learned magistrate. In view of the provisions of s 31 of the Justices Act which would have permitted the complaint to have been amended by the learned magistrate were it necessary, I would exercise the power under s 110(2)(f) and amend the complaint. As I have already noted, the applicant was not prejudiced by any variance between the complaint and the evidence in support of it, if indeed such variance existed. The complaint need only have the words "1st January 2002 and 30th April 2006" deleted from the particulars, and the words "on two occasions in or about 2005 or 2006" substituted therefor.
6. Ground 1(d) fails.
7. Ground 2(a) contends that the sentence imposed by the learned magistrate was manifestly excessive.
8. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, said at [8]:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

1. To my mind excess is not apparent. Indeed, in my view, the sentence was light. The acts of sucking the complainant's vagina were serious examples of the offence of indecent assault and they were committed on an infant and in breach of trust.
2. Mr Nicholson drew attention to the fact that Professor Warner, in her respected text Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, noted, at [11.426], that the median sentence for the offence of indecent assault between 1990 and 2000, was four months' imprisonment. Professor Warner was there referring to single counts of indecent assault, and she also noted that sentences ranged from one month to 12 months. The median for global sentences was nine months.
3. Even taking into account that the applicant had, after the commission of those assaults in 2005 and 2006, but before his conviction for them in 2014, been convicted and sentenced to a term of actual imprisonment in respect of two offences of indecent assault on two young girls occurring in 2010, the offences for which the learned magistrate was sentencing the applicant nonetheless called for an immediate custodial sentence. A sentence of five months with two months suspended cannot be said to be unreasonable or plainly unjust and was, in my view, well within the learned magistrate's wide measure of latitude.
4. Ground 2(a) fails.
5. The final ground of review, ground 2(b), contends that the learned magistrate erred in law and in fact in not giving proper weight to the previous sentence of imprisonment served by the applicant.
6. On the sentencing hearing before the learned magistrate counsel for the applicant made the following submission:

"MR RICHARDSON: - in relation to the other two events, which are subsequent events. It's my submission, that if this matter had been included as it could well have been, in that same series of events, it is highly unlikely that any greater penalty would have been imposed than the penalties that was imposed. It's not Mr S's fault that nobody charged him - raised these allegations with the police until 2013, but as a result of that, he's been required to go through this process twice, he's been to prison, he's been released, he's come back into the community, he's set himself up and tried to move on and then from years before the first events, an arm reaches out, grabs him and drags him back again.

Now the sentencing issue might be completely different if after his conviction or the allegations of 2010 have been made, he re-offends, that's not the case.

MR RICHARDSON: And in my submission, the sentence previously imposed, is more than sufficient to - to cover this because it - it is activity of the same kind many years before, involving the same circle - if I can put it that way - not the same child, the same circle of people and could - I don't want to repeat it again - but the final time, could have been dealt with if people had made the allegations at or about the same time as the other event. If it please, your Honour."

1. In her comments on passing sentence the learned magistrate said:

"In 2012, you were found guilty of two counts of indecent assault involving two girls older than this complainant was, at the time of these matters. As a consequence, you were sentenced to six months imprisonment, with three months suspended for two years.

It was submitted by Mr Richardson, that if this matter had been included in that sentencing, then the sentence would not have been greater and that as a consequence, I should not sentence you to a term of actual imprisonment now and he also made the point, that you had served a sentence and been released and for that reason, also should not be sentenced to imprisonment now.

I reject that submission. In my view, these are instances of separate offending a number of years prior to the later offences and it cannot, in my view, be said that that previous sentence could incorporate these matters. However, I must also take into account, that you have served that sentence, you've been released, you've not breached the suspended part of that sentence and through no fault of your own, you've had two separate hearings - or trials - and have not been able to be sentenced in relation to all matters at the one time.

To reflect that situation, I therefore intend to suspend part of the sentence I impose. I therefore sentence you to a term of five months imprisonment with two months of that sentence suspended for a period of two years, on condition that you commit no offence punishable by imprisonment."

1. With respect, I too would have rejected that submission for exactly the reasons that her Honour gave for doing so. Unlike her Honour I would not perhaps have suspended two months of the five month sentence that she imposed for precisely the reasons articulated by her, but it was nonetheless appropriate in the circumstances for her to take the course she did. The likely impact on the applicant of the period he actually spent in prison in terms of personal deterrence and rehabilitation was a matter relevant to her Honour's sentencing for an offence committed prior to that period of imprisonment. However, in my view, it cannot be said that her Honour should have given that consideration any greater weight than she did.
2. Ground 2(a) fails.
3. All grounds having failed the motion to review is dismissed.