AB v Paulet

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04597

Between:
AB	Plaintiff
-and-
ANDREW PAULET	First Defendant
-and-
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 October & 6-8 December 2021
DATE OF JUDGMENT:	27 July 2022
CASE MAY BE CITED AS:	AB v Paulet
MEDIUM NEUTRAL CITATION:	[2022] VSC 414 (First revision: 28 July 2022)

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JUDICIAL REVIEW — Where, on appeal (by hearing de novo) against conviction from Magistrates’ Court, County Court found AB guilty of two charges of sexually assaulting CD and one of stalking her — Whether findings of guilt vitiated by jurisdictional error or error of law on face of record.

SEXUAL ASSAULT — Where AB met CD for first time on tram — Where, after 30 minutes of friendly conversation on tram, CD declined AB’s invitation on date — Where, at CD’s stop, AB followed CD off tram, well before his stop, and chatted further with her on footpath — Where, after declining AB’s request for her phone number, CD put AB’s details into her phone and promised to text him — Where judge found that, as they went to part, CD offered her hand to shake but AB pulled her closer and kissed her cheek — Where they then bid each other good evening — Where, in cross-examination, CD agreed AB leant in to kiss cheek but did not actually do so, whereas, in re-examination, said she misunderstood earlier question and confirmed kiss occurred — Whether unreasonable to conclude cheek-kiss occurred — Whether cheek-kiss “sexual” touching — Whether judge applied wrong test in concluding cheek-kiss sexual — Whether, on facts found, not open in law to conclude cheek-kiss sexual — Whether cheek-kiss no more than farewell gesture — Whether failure constructively to exercise jurisdiction by failure to have regard to certain matters — Whether reasons inadequate — Where judge found AB mistook signals advanced by CD — Whether judge misdirected himself, or reasons inadequate, on reasonable belief in consent — Whether unreasonable to conclude AB did not reasonably believe CD consented to cheek-kiss — Crimes Act 1958 (Vic), ss 35, 35B, 36, 36A, 37A, 37B, 40, 48A(1)(a) & 48B(a).

SEXUAL ASSAULT — Where, ten days after first meeting, AB, from behind, touched CD, fleetingly, on side of waist over heavy clothing while she queued at shop on public footpath — Where incident captured on CCTV — Whether waist-touch “sexual” touching — Whether judge applied wrong test in concluding waist-touch sexual — Whether, on facts found, not open in law to conclude waist-touch sexual — Whether waist-touch no more than attempt to get CD’s attention — Whether failure to have regard to relevant considerations or constructive failure to exercise jurisdiction — Whether reasons inadequate.

STALKING — Where course of conduct alleged encompassed four separate incidents over two-week period — Whether no evidence for findings on some particulars — Whether reasons inadequate — Crimes Act 1958 (Vic), s 21A.

CREDIBILITY — Where judge made positive credibility findings about CD as a witness — Whether findings unreasonable — Whether reasons inadequate.

RECORD OF INTERVIEW — Where judge made adverse findings about AB’s approach in police interview — Whether findings unreasonable — Whether judge employed incriminating conduct reasoning — Whether failure to have regard to AB’s exculpatory account of incidents — Whether constructive failure to exercise jurisdiction — Whether reasons inadequate.

BIAS/APPREHENDED BIAS — Whether judge’s findings and reasons displayed bias or apprehended bias.

RELIEF — Certiorari — All three findings of guilt quashed — Mandamus — Where arguable case on stalking remaining — Stalking charge remitted to County Court for rehearing — Where, on sexual assault, only order open to County Court was to dismiss charges because not open to conclude either touching sexual — Whether mandamus, prohibition or no further order appropriate on sexual assault charges — Parties invited to make further submissions on consequential relief on sexual assault charges.

AMICI CURIAE — Court received assistance from amici curiae on meaning and scope of sexual touching and other matters — Victorian Bar Pro Bono Scheme.

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Appearances:	Counsel	Solicitors
For the Plaintiff	In person	N.A.
For the First Defendant	Ms M Mahady with Mr G Barr	Solicitor for Public Prosecutions
Amici curiae	Mr T Danos with Mr L McAuliffe	N.A. (Direct brief, Victorian Bar Pro Bono Scheme)
For the Second Defendant	Submitting appearance	N.A.

HIS HONOUR:

OVERVIEW

On an appeal (by a hearing de novo) from the Magistrates’ Court to the County Court, AB[1] was found guilty of two charges of sexually assaulting CD and one of stalking her.[2] He was sentenced to pay an aggregate fine of $10,000, without conviction.
[1]By a pseudonym order, the plaintiff is designated AB, and the complainant, CD.
[2]Contrary to s 40(1) and s 21A(1), respectively, of the Crimes Act 1958 (Vic). See below.

On an application for judicial review in this Court, AB submits that these findings of guilt are vitiated by jurisdictional error and error of law on the face of the record. I am satisfied that the judge made errors of these kinds and that the application must succeed.

Necessary to his decisions on sexual assault were the judge’s conclusions that AB’s kiss to CD’s cheek and his fleeting touch to the side of her waist over heavy clothing each amounted to “sexual” touching, an element of that offence. True it is that the applicable statutory test potentially allows a broad range of physical contact to amount to sexual touching. However, on no rational application of that test to the facts as found, or to the evidence before his Honour, could either instance of touching be classified as sexual. Strikingly, the judge failed even advert to the provisions in which a key part of the statutory test is found. Instead, his Honour must have applied the wrong test, or misapplied the right test, which explains his otherwise inexplicable conclusions on this element.

In addition, on all three charges, the judge erred by failing to have regard to relevant matters, including critical parts of AB’s account, and by giving inadequate reasons. Further, there was no evidence for his finding on a material particular of the charge of stalking.

In the result, each finding of guilt must be quashed. Since an arguable case on stalking remains, that charge will be remitted to the County Court for rehearing. The parties and amici curiae submitted that, if, on the evidence before the judge, it could not reasonably be concluded that AB engaged in sexual touching, it would be open to make an order in the nature of prohibition in respect of any rehearing of the sexual assault charges. On reflection, it may be that another order, or no further order, should be made in respect of those charges. I shall hear the parties on this issue after they have considered these reasons.

SUMMARY

Broad summary now; detailed reasons later

As this is a long judgment, I shall, at this stage, summarise or refer to some of the evidence, the judge’s findings and reasons, the key statutory provisions on sexual touching, and my reasons for upholding AB’s principal grounds.

Thereafter, I shall move to a far more detailed treatment of those topics and the interpretation of the provisions on sexual touching, as well as to the other grounds agitated by AB. Finally, I shall turn to the question of appropriate relief.

Evidence

The events the subject of the charges occurred on four separate days over a fortnight in June 2018.

The first charge of sexual assault arose in this way. On 5 June, after work, CD walked to her usual city tram stop and boarded a tram for home. AB sat down on the spare seat beside her. Though they had never met, the two engaged in friendly conversation over the next 30 minutes. As the tram neared CD’s stop, AB invited CD on a date, which she declined. Just after CD left the tram, so did AB, despite his stop being much further down the line. In the course of chatting on the footpath, CD declined AB’s request for her phone number. CD, however, asked AB for his number, which she put into her phone, and promised to text him (but without intending to do so). As they went to part, instead of shaking her hand when she offered it, AB pulled CD closer, leant in and kissed her on the cheek. They then bid each other good evening. CD did not consent to the kiss. She said that she felt “shocked, violated, just uncomfortable, not safe”.

Two days later, on 7 June, AB approached CD at her usual city tram stop, and inquired why she had not texted him. CD answered, “Because we met on a tram”, and said that she had a boyfriend (which was untrue). She told him to stand elsewhere and not to follow her. The judge found that AB followed CD onto the tram she boarded shortly thereafter, and that, out of concern, CD phoned her flatmate about AB’s presence.

The second charge of sexual assault arose out of events that occurred eight days later, on 15 June. The incident was captured on CCTV. After work, CD queued with a colleague at a shopfront on the footpath just across the way from her usual city tram stop. AB walked by. As he did so, from behind but without turning to look at her, he reached out and touched CD’s right waist, fleetingly, over her heavy winter clothing. After taking a few steps more, AB stopped, pivoted, looked at CD and smiled. CD turned to her left and saw AB standing there, smiling. Neither said a thing. CD turned back to face the shop. AB then did an about-face and walked out of sight. About 30 seconds later, he came back past CD and her colleague but on the far side of the footpath. They were still facing the shopfront and had their backs to him. AB did not look at or seek to engage CD, but just kept walking, with eyes front. CD said that the waist-touch “was a very, like, intimate touch, not a stranger”, and that she felt “violated”. She also said it was a “trying to get my attention type touch”.

Finally, on 19 June, AB and CD saw each other from a distance at the same city tram stop. AB boarded a Number 3 tram. CD then took the tram immediately behind it, which was her usual Number 6. At a stop down the line, the Number 6 turns left onto AB and CD’s common home route, whereas the Number 3 goes straight ahead. At that stop, AB switched to the Number 6. CD was near the door of the tram. As AB entered, he saw CD and greeted her cheerily, but she did not respond. He moved to the front of the tram. While CD did not look in AB’s direction, she could see (in a reflection) that he was looking at her. As the tram neared CD’s stop, AB moved back towards CD and said, “Have a great evening.” The judge recounted CD’s evidence-in-chief that, as she alighted, AB hit the tram in annoyance at her failure to respond to him, and that she felt scared in consequence.

When interviewed by police, AB said that he leant in to kiss CD on the cheek “as a gesture … of a good way, not like it’s a man and a woman”, but stopped short of actually kissing her because he “had just met her and maybe that would be too much”. When he touched CD’s waist, he did so “in a very friendly and nice way to … show her that [he was] there”. He said that during neither of the first two meetings did CD make it clear that she did not want to speak to him. On the contrary, his impression was that everything was fine. He also said that at no stage during any of their interactions did CD seem fearful. He denied following CD onto the tram on 7 June or hitting the tram on 19 June. He said, in effect, that CCTV footage would show that there was no sexual assault or stalking.

Key findings and reasons

On the first charge of sexual assault, the judge found that the cheek-kiss occurred. His Honour also concluded that the kiss “clearly was of a sexual nature, given that the two had barely met and … in a most informal way, both being passengers on the tram”.

On the charge of sexual assault involving the waist-touch, his Honour concluded that, “having regard to the area where [AB] touched [CD], [it] must be held as a touching of a sexual kind”.

It is unclear whether the judge’s findings on stalking embraced the events on all four of the occasions on which AB and CD interacted. It is clear, however, that important to his Honour’s ultimate decision on that charge were his findings that AB loitered at CD’s usual tram stop and that he followed her.

Sexual touching

Key provisions on sexual touching

On 1 July 2015, the offence of indecent assault was abrogated and replaced with the offence of sexual assault. By s 40(1) of the Crimes Act 1958 (Vic) (“the VCA”), sexual assault is committed if:

a)a person (“the accused”) intentionally touches another (“the complainant”);
b)the touching is sexual;
c)the complainant does not consent to the touching; and
d)the accused does not reasonably believe that the complainant consents to the touching.

In the main, this application concerns the second element: sexual touching.[3] On the meaning of “‘sexual’, in relation to touching,” s 35(1) of the VCA directs attention to s 35B. Section 35B(2) provides that:[4]
[3]In relation to the cheek-kiss, AB also challenges the judge’s findings and reasons in respect of the first and third elements of the offence. See below.
[4]Section 35B(1) of the VCA also sets out how “[t]ouching may be done”. See below.

Touching may be sexual due to—

(a)the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
(b)the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
(c)any other aspect of the touching, including the circumstances in which it is done.

Section 48B(a) provides that it is no defence to sexual assault that the accused was under a mistaken but honest and reasonable belief that the touching was not sexual.

Sexual assault was designed to replace “the outdated and ambiguous concept of ‘indecency’ with the clearer concept of sexual touching without consent”.[5] As we shall see, however, the new provisions are, in some respects, not so easily construed, and do not lend themselves to a simple statement of the test for when touching will be sexual.
[5]See the Explanatory Memorandum (at p 11) to the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic) (“the 2014 Amending Bill”), which became the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), which repealed the provision on indecent assault and introduced the sexual assault provisions into the Crimes Act 1958 (Vic). See below.

Nevertheless, I have concluded that the question whether an instance of touching was sexual is to be determined objectively, having regard to the considerations mentioned in s 35B(2), and to the overriding requirement in s 40(1)(b) itself that the touching be “sexual”. However, some subjective considerations may be relevant to that determination. One example is whether the accused had a sexual purpose specified in s 35B(2)(b). Another is whether the accused had a non-sexual purpose for the touching (as distinct from a belief of the kind mentioned in s 48B(a)).

Summary of conclusions on sexual touching

In my view, neither the judge’s findings of fact nor any aspect of the evidence could allow either instance of touching to be held to be sexual. I have scoured the evidence and the judge’s reasons for something that might justify or explain the impugned conclusions. But I have found nothing.

Only by application of the wrong test, misapplication of the right test, irrational reasoning and/or guesswork could the conclusions that these instances of touching were sexual be reached. Limited though they are, the judge’s reasons show that he erred in these ways. Astonishingly, his Honour made no mention of s 35B(2) or its terms either in his reasons or during the hearing (nor, for that matter, did counsel raise this provision). The facts as found by the judge were incapable of warranting a conclusion, in law, that either instance of touching was sexual. No aspect of the evidence, absent speculation, was capable rationally of establishing any fact that might justify a conclusion of sexual touching.

I also consider that the judge erred by failing to have regard to AB’s explanations for the charged instances of touching. In particular, his Honour did not even mention that AB told police that he went to kiss CD on the cheek “as a gesture … of a good way, not like it’s a man and a woman”, or that he said that he was just trying to get CD’s attention when he touched her waist.

Further, the judge did not adequately explain why he concluded that these instances of touching were sexual, and I find that his Honour fell into error in this respect, too.

Accordingly, the findings of guilt on the sexual assault charges are vitiated by jurisdictional error and error of law on the face of the record.

Stalking

I accept that the finding of guilt of stalking is also tainted with vitiating legal errors.

One example arises out of the judge’s finding that, during their interaction on the second occasion, despite CD telling him not to follow her, AB did just that — by following her onto the tram she took shortly thereafter. But, on closer analysis, CD’s own evidence was incapable of proving that AB had boarded the same tram at all. Instead, it showed that, after CD’s remarks, the two went their separate ways.

The judge’s reasons on stalking were inadequate as well. For example, it is at least unclear whether his Honour found that AB hit the tram during his final interaction with CD, an allegation for which, the Director conceded, there was in the end no evidence. For this reason, and others, it is unclear on which of the instances of conduct alleged the judge reached the finding of guilt of stalking.

Remaining grounds

On one view, the foregoing conclusions make it unnecessary to determine AB’s other grounds of review, since their success or failure could not alter the orders that I might make. That said, as those grounds were argued fully, it is appropriate to determine them as well.[6]

AMICI CURIAE APPOINTED

[6]It is also a preferable course in the event of any appeal from my orders.

Before turning to my further reasons, I pause to make these remarks.

The meaning and ambit of the element of sexual touching in the offence of sexual assault is a matter of first importance, not only to the parties in this matter, but also to those who may be involved in other cases of this kind, and to the administration of criminal justice more generally. While sexual assault replaced indecent assault in Victoria seven years ago, there is, remarkably, only scant authority on sexual touching. As a result, in order to address some of the issues raised by AB, it has been necessary to consider not just the evidence and findings in the County Court, but also, for the first time in this Court, the statutory test for this element. This interpretive task required close consideration of the “new” provisions, their legislative history and associated extrinsic materials, and related authorities in this and other jurisdictions.

AB engaged solicitors and counsel in the courts below, but he was, by his own choice, unrepresented in this Court. While it became apparent that he is intelligent and articulate,[7] AB is neither a lawyer nor legally trained. In addition to drawing written submissions and putting oral argument on the construction of the sexual touching provisions, AB sought to mount a case for relief on several other fronts. This, in his circumstances, was no easy feat.
[7]Although, to an Australian ear, or at least mine, AB’s heavy accent made him a little hard to understand at times.

The Director, as expected in a matter of this kind, was represented by counsel of considerable experience in the criminal law. And, as I have come to expect from them, Ms Mahady and Mr Barr put the Director’s position with skill and vigour. They made sensible concessions and assisted the Court considerably, including with detailed written and oral submissions on all issues, including the major interpretive task.

Against that background, after the first day of the substantive hearing in this Court and before the scheduled second day, I informed AB that he could apply to the Victorian Bar’s Pro Bono Scheme for the assistance of counsel in the further presentation of his case. While he was unsure whether he would meet the means test, he declined that opportunity anyway. Why? Because he wanted to appear for himself. Fair enough.

In the alternative, I raised the possibility of my calling for the assistance of amici curiae, particularly on the question of the meaning and scope of sexual touching and whether there was any evidence capable of proving that element of each charge of sexual assault. Neither AB nor the Director objected to this course. In the event, I called for such assistance.

Happily, Mr Danos and Mr McAuliffe answered the call. As amici curiae, they conducted extensive research and other preparation, provided detailed written and oral submissions, and otherwise appeared for three days at the substantive hearing, as well as at a mention.

I wish to record the Court’s warm thanks to Mr Danos and Mr McAuliffe for their considerable assistance. It is in the finest traditions of the Victorian Bar that counsel were prepared to help the Court in these ways. It is also testament to the importance and utility of the Bar’s Pro Bono Scheme.

MAGISTRATES’ COURT

I turn now to some of the background to this matter, commencing with the hearing in the Magistrates’ Court.

At that hearing, which was conducted on 29 January and 7 and 21 February 2019, AB faced the same three charges that ended up before the County Court. The magistrate found him guilty on each charge and imposed an aggregate fine of $10,000, without conviction.

PRELIMINARY MATTERS IN THE COUNTY COURT

Appeal against conviction and sentence

On 18 March 2019, AB initiated an appeal against both conviction and sentence to the County Court. As we shall see, however, he abandoned his sentence appeal soon after the judge announced his findings of guilt.

While there were mentions on earlier occasions, the appeal proper was heard in the County Court over two days, on 28 and 29 September 2020. The Director and AB were each represented by counsel, neither of whom appeared on the present application.

Charges before the County Court

The three charges before the County Court were pleaded in these ways:[8]
[8]My emphasis.

[Charge 1] [AB] at Armadale did intentionally touch [CD] in a sexual manner by grabbing both her arms and pulling her close to him and then kissing her cheek without consent and did not reasonably believe that she consented to the touching.

[Charge 2] [AB] at Armadale did intentionally touch [CD] in a sexual manner by brushing his hand against her stomach without her consent and did not reasonably believe that she consented to the touching.

[Charge 3] [AB] at Melbourne between the 6^th of June 2018 and the 19^th of June 2018 did stalk another person namely [CD] by engaging in a course of conduct which included following her, loitering at the tram stop at the intersection of Swanston and Bourke Street where he knew she caught the tram and directing abusive acts towards her by angrily hitting a sign on a tram when she ignored him, with the intention of arousing apprehension or fear in the victim for her own safety.

There are several things to note about the charges. First, while no date was pleaded in Charge 1, the judge granted a prosecution application (which was unopposed) to amend the charge by inserting the words “on or about 6 June 2018” after the word “Armadale”. This amendment, the prosecutor explained, reflected some evidence given in the Magistrates’ Court and CD’s “concession … that her recollection of the exact date might not be concrete”. As we shall see, while CD, in her evidence before the County Court, appeared to settle on 6 June as the correct date, she conceded that it could have been 5 June. Other evidence (namely, AB’s account combined with police observations of CCTV footage) showed that the events alleged could not have happened on 6 June, but must have occurred on 5 June.

Secondly, apparently for the same reasons, the dates pleaded in Charge 3 were amended (again, unopposed) by substituting the words “between on or about 6 and 19 June 2018” for the words “between the 6^th of June 2018 and the 19^th of June 2018”.

Thirdly, while no date was pleaded in Charge 2 either, there was no dispute that the incident giving rise to that charge occurred on 15 June 2018. So much is clear from the date stamp on the CCTV recording of the incident. There does not appear to have been any amendment to this charge in the County Court.

Fourthly, while Charge 2 alleged that the incident occurred at Armadale, again, there was no dispute that it occurred in Melbourne (in the city). No amendment was sought on that score either.

Fifthly, Charges 1 and 2 both alleged that AB intentionally touched CD in a sexual “manner”. As we have seen, s 40(1)(b) of the VCA requires proof that “the touching is sexual”. The word “manner” is not mentioned. While, at one stage, AB sought to make something of this discrepancy between the pleaded words and the requirements of s 40(1)(b), he ultimately abandoned the point. He was right to do so.

Finally, Charge 2 alleged that AB “brush[ed] his hand against [CD’s] stomach”. At one point in his reasons, the judge described the allegation in Charge 2 as “brushing his hand against her stomach and hip”. In her evidence, CD said that AB touched “my like hip, lower hip, pelvic area”. It is plain from the CCTV footage that AB touched the right side of CD’s waist, not her stomach. Moreover, CD did not give any evidence that her stomach was touched. In the County Court, no amendment of the particulars was sought. In any event, AB makes no complaint about this discrepancy either.

No opening addresses

While the prosecutor could have sought leave to give an opening address prior to calling any evidence,[9] he did not do so. Nor did the judge invite either a prosecution opening or a defence response.

EVIDENCE IN THE COUNTY COURT

[9]See s 65 of the Criminal Procedure Act 2009 (Vic) (“CPA”). See also s 256(2)(c) of the CPA, which provides that the County Court “may exercise any power which the Magistrates’ Court exercised or could have exercised”.

More detailed summary required

Despite giving a broad summary earlier in these reasons, I think it is preferable that I go into more detail about the evidence now. This is especially so in view of the nature of AB’s submissions and his grounds for review.

The prosecution called three witnesses: CD; her colleague EF;[10] and Detective Senior Constable Andrew Paulet, who is the informant (and the first defendant in this Court).
[10]While a pseudonym order was not made in respect of the witness EF, it is preferable to assign him a pseudonym too, especially given that, as CD’s colleague, identification of him is likely to identify her and, in turn, perhaps, AB as well.

Given the difficulties experienced as a result of the COVID-19 pandemic at the time of the hearing, all witnesses gave evidence over WebEx. The prosecutor appeared via WebEx, but counsel for AB appeared in person.

CD’s evidence

Summary of CD’s final position, where possible

I shall not set out seriatim CD’s evidence-in-chief, cross-examination and re-examination. Instead, it is preferable that, where possible, I provide a summary of the substance of her evidence on each topic after the completion of all of those stages of the process. Where it is more difficult to ascertain CD’s final position, or where I think it is otherwise appropriate to do so, I shall set out competing or qualifying aspects of her evidence.

As we have seen, the relevant events arose out of interactions between AB and CD on four separate days over a two-week period in June 2018. I shall summarise CD’s evidence vis-à-vis each day in turn.

First incident (5 June 2018): First meeting and kiss on cheek

Despite CD’s evidence that the first incident occurred on 6 June 2018, it is not in dispute that the first incident in fact occurred on 5 June.

On that day, after work, at about 5:45 p.m., CD boarded her usual tram (the Number 6) at her usual stop near her workplace in the city. This tram stop was in Swanston Street, at its intersection with Bourke Street. CD was heading home (which, for her, meant she travelled south-southeast on Swanston Street and St Kilda Road, and then east-southeast along High Street, towards the south-eastern suburbs).

Soon after the journey began, AB sat down in the spare seat beside her. CD and AB had never met before. They engaged in “friendly conversation” for the balance of the trip to CD’s home stop, so for “around half an hour”. CD agreed that AB had “an unusual accent and manner about him”, and that his was a “very strong [foreign] accent”. Among other things, AB told CD what type of work he was doing in Australia. He told her where he lived (the general area, not the specific address), which was about 25 minutes further down the line from her home tram stop. He said that he had lived overseas before coming to Melbourne. He said that he was trying to start up a business here. They also discussed where they worked, and what it was like to live in Melbourne. They laughed and had a “nice” conversation. CD agreed that “[i]t wasn’t just one person talking” and that she was “giving [AB] some general details about [her] work and [her] background”.

In evidence-in-chief, CD said that, not long before her home stop, AB asked her out on a date, which she declined. CD was “pretty sure [she] was sort of, like, caught off guard”, and could not recall what she said. She was also unsure whether he asked only the once. They did have further conversation, but CD could not recall what was said.

CD left the tram at her home stop. AB asked the tram driver to open the door for him, and he alighted there too. CD walked off the road and onto the footpath. AB did the same.

At this point, there was more chat between them, including discussion about CD taking AB’s phone number. CD said that AB also wanted her number, for which he asked a few times, but she “wasn’t comfortable with that”, and declined.

The conversation got to the point where CD said to him, “I’ll have your number.” Although she gave some inconsistent answers, ultimately, CD expressly said, in answer to questions from the judge, that it was AB who put his number into her phone. AB said, “Make sure you text me”, which he repeated.

In cross-examination on these events, however, while her evidence was unclear at times, CD appeared to accept, and then partly retreat from, the position that it was while they were still on the tram and arriving at her stop that AB both asked her out and offered his phone number. CD also conceded that, once they were off the tram at her stop, she, not AB, put his name and number into her phone. The relevant parts of the cross-examination were as follows:[11]
[11]My emphasis.

It wasn’t long before you came to your stop … that he had asked you out? - - - Yes.

And in doing so he offered to you his phone number? - - - Yes, after I declined giving him my number.

…

So the barrister [in the Magistrates’ Court] asked, “Okay. Was it not long before your stop came up that he asked you out?” “Yes, that is correct.” And you have just accepted that part of it, but the next question you were asked, “And in doing that, did he — he offered to you his phone number?” “Yes.” Were you asked that question and did you give that answer at the Magistrates’ Court? - - - Yes.

…

Was the answer you gave in the Magistrates’ Court to the question, “And in doing that, did he — he offered to you his phone number?” and your answer, “Yes,” was that a truthful answer? - - - Now, no, it wasn’t truthful, but at the time it — I thought it was the truth, like — no, because I didn’t know — know what to say.

You say at the time you gave the evidence last year it was the truth, in January last year? - - - Yes. Well, I wouldn’t have lied, so I thought it was the truth, but clearly it’s not the truth because I’ve had my script previously.

…

[AB] says that at the time you arrived at your tram stop, he is asking you out and offering you his phone number and that’s the timing of when he’s asking you that. Do you agree? - - - What, when the second … tram pulled up he could have got?

No, we are still on the tram at this point. … Do you agree there’s a conversation before you get off the tram about exchanging phone numbers? - - - I don’t recall. I don’t — I’m not too sure.

Were you asked this question at the Magistrates’ Court … I will just ask it and see if you remember, “And it was during that happening, him asking you out and offering you [his] phone number, that the tram arrived at your stop?” “Yes.” Were you asked that question and did you give that answer? - - - Yes.

And was it a truthful answer? - - - Yes, I don’t — yes, I don’t know. I don’t know, to be honest.

Is it after this time that there’s been an exchange of conversation about phone numbers that you both get off the tram? - - - I recall him asking me out on a date. I said no. Everyone was looking at me, like laughing, and then I got off the tram, then that’s when the phone numbers happened. I don’t recall him asking or talking about phone numbers on the tram. I’m not sure if that’s just my memory, but that’s how I remember it.

…

And when he gets off the tram and you’re talking, the conversation is still about you taking his mobile phone number, isn’t it? - - - Yes.

Prior to that, though, he had been offering you his phone number? - - - I don’t recall that, but if that’s how it happened — yes, yes, no comment. I don’t know.

You then at some point put his phone number into your phone, along with his name. Do you agree with that? - - - Yes.

He doesn’t — you wouldn’t have given your phone over to him? - - - Yes.

Do you agree? You would have — he would have given you his name and the phone number? - - - Yes, I — yes.

And when you did that, you told him that you would text him, didn’t you? - - - Yes.

…

And so at that point you were giving him the impression, whether it was correct or not in your mind — you were giving the impression to him that you were going to text him? - - - Yes.

In evidence-in-chief, CD said that, after AB kept saying, “Make sure you text me”, she told him to take the next tram “but he didn’t”. In cross-examination, CD accepted that the tram went past while they were having a conversation about phone numbers.

In evidence-in-chief, CD said that, as she was about to leave, AB grabbed her arms, pulled her closer and kissed her on the cheek. In cross-examination, however, CD conceded that, as she put his number into her phone, she put out her hand to shake hands but that he did not take her hand. Instead, it was then that he leaned in as if he were about to kiss her on the cheek, but did not in fact do so. The evidence fell in this way:[12]

Is it right that, as you put his number in, you put out your hand to shake hands with him? - - - Yes, yes.

[12]My emphasis.

He didn’t take your hand, though, did he? - - - No.

And in fact, at that point, he leaned in as if he was going to kiss you on the cheek, but didn’t in fact kiss you on the cheek. Correct? - - - Yes, yes.

After that, did the two of you wish each other a good evening? - - - Yes, probably. Yes.

In re-examination, the prosecutor returned to the question whether the cheek-kiss in fact occurred:[13]
[13]My emphasis.

[CD], my learned friend asked you about the first incident and he put some questions — and this is when you are both — you are now both off the tram: “I put it to you that you were going — you put your hand out”. These are not the exact words, but: “You put your hand out and you were going to shake his hand”. Do you remember him asking that question? - - - Yes.

Did he in fact — and you agreed with that proposition. Do you remember that? - - - Yes.

Now, did he in fact shake your hand? - - - No, that’s when he like pulled me in.

Now, my learned friend then put to you that he lent in to kiss you — this is at the time when you put your hand out to shake it — he lent in to kiss you on the cheek, but he put to you that he didn’t kiss you on the cheek. Remember him saying that question? - - - Yes.

Now, a matter for his Honour, but there was a pause but you said “yeah” to that. Do you remember saying that? - - - I — it — I said “yeah” because I, like, recall — like, it was almost on the lips, like, I think that’s what he was referring to because if he was referring to he didn’t kiss me at all, that’s — I don’t know, that’s stupid. So I’m guessing he’s referring to he, like, kissed me almost on the lips.

Is that how you understood my learned friend’s question? - - - Yes, I didn’t think that he just meant he did nothing. I wouldn’t have agreed with that.

So I will finish off by saying what is your evidence in relation to the act that you say happened? Was there a kiss or not? - - - There was a kiss.

And prior to the kiss, how did he touch you? - - - Like when he pulled me in.

Yes, okay. So he pulled you in and that’s when the kiss happened? - - - Yes.

In evidence-in-chief, when asked whether she said or did anything “in relation to the invitation for a kiss”, CD said, “Definitely not.” CD said she felt she was “quite stern on that [she] did not want to go on a date, that [she] didn’t want to do anything with him”. When asked what she was “feeling” when AB kissed her, CD answered, “Like, shocked, violated, just uncomfortable, not safe.” Later in her evidence-in-chief, when asked whether she consented to “that kiss”, CD said, “No.”

As we have seen, CD accepted, in cross-examination, that, after the kiss, she and AB wished each other a good evening.

In evidence-in-chief, CD said that, as she walked towards her home, she saw AB looking at her from the tram stop, including when she reached her front gate. In cross-examination, CD accepted that her home was situated on the same side of the street as the tram stop and back about 300 metres in the (roughly westerly) direction from which their tram had come, and from which the next tram would come.

Second incident (7 June 2018): CD tells AB why she didn’t text him

The second incident occurred two days later, on 7 June 2018.

On that day, after work, at about 5:45 p.m., CD went to her usual tram stop in the city. She saw AB standing on a planter box near the stop, which placed him higher than others in the area. AB saw CD, and then smiled. CD walked past him and then to a step near a bank, where she sat down. CD chose to sit there “[b]ecause it was sort of out of [AB’s] vision and [she] didn’t want him to see [her]”.

At some point, a Number 6 tram came along, but CD did not take it. She hoped that AB would take that tram and then she would get the next one.

Subsequently, while she was looking at her phone, CD noticed AB standing in front of her. CD was “pretty sure” that AB asked her why she did not text him. She thought she told him, “Because we met on a tram”, and that she had a boyfriend (which was untrue). CD also said that she either told him to stand somewhere else (and pointed) or that she was going to stand somewhere else and that he was not to follow her. CD said that her tone of voice was “pretty blunt”.

Ultimately, CD boarded a Number 6 tram to go home. Initially, in evidence-in-chief, CD was asked, “When you got on the tram, did you see [AB] again?” In response, she said, “I did.” Immediately thereafter, however, the following exchange occurred:[14]
[14]My emphasis.

What did he do? - - - I can’t recall, sorry.

Did you see [AB] on the tram — on any tram again on 7 June? - - - I can’t recall, sorry.

That’s okay. Can you recall an occasion where you got on the tram and you rang your flatmate, [GH]? - - - Yes, yes.

Was this on 7 June? - - - Yes, I recall now. Yes, it was.

Why did you ring [GH]? - - - After I told him, [AB], to, like, not be near me, I called [GH] just because I was feeling unsafe and thought, yes —

Where were you when you were talking to [GH]? - - - I think I was still at the — I’m unsure sorry.

So, on 7 June 2018, as best you recall, after the conversation you had with him, did you see where [AB] went? - - - I can’t recall, sorry.

In cross-examination, CD agreed that the planter box on which AB was standing was about six inches off the ground. CD accepted that, a short time after she walked past AB and he smiled, he came over to where she was sitting and sat down next to her for between one and two minutes. The cross-examination continued:

And after that — I will get to the specifics of the conversation shortly — but, after that, he got up and moved away. Is that right? - - - Yes.

And you moved away from the area as well and you never saw him — there was no other interaction between the two of you that night? - - - Yes, yes.

CD agreed that, when AB came over and sat next to her, it was possible that he asked her how her day was. The following exchange then ensued:

After you told him that you weren’t interested in texting, both of you just decided to go your separate ways. Do you agree with that? - - - Yes.

On another note, CD accepted that her city tram stop is the main stop for many other trams that head south out of the city.

Third incident (15 June 2018): Touch on waist

The third incident occurred on 15 June 2018. Here, in addition to CD’s evidence, I shall incorporate a summary of what can be seen on the CCTV recording of the incident. The recording was played to the judge. It was received by his Honour as an exhibit, as was a still image of the moment that AB made contact with the right side of CD’s waist. The CCTV recording and the still image were before this Court as well.

After work, CD went with her colleague EF[15] to a tobacconist’s booth in Swanston Street. They went there so that CD could top up her Myki card and buy some tobacco, and then they were going to go out in the city. The booth is situated on the footpath just across the way from CD’s usual city tram stop. The rear of the booth faces Swanston Street and its shopfront faces the public footpath at right angles to the passing pedestrians.
[15]EF appeared to be young man, perhaps in his twenties.

The CCTV footage shows that, just after they arrived at the booth, CD patted EF a few times on the left shoulder. They then stood on the footpath in front of the booth and waited in line to be served, with EF moving a little further to his left to look at some merchandise. A couple of other customers were ahead of them in the queue. All customers, including CD, had their backs to those walking by on the footpath.

According to the timestamp on the CCTV recording, CD and EF arrived at the shopfront at 18:42:42. About six seconds later, at 18:42:48, AB walked by. He came from the right of CD and EF as they faced the shopfront. As he walked past the back of CD, and while looking straight ahead and not at her, AB put his arm out to his right and, with his right hand, touched her fleetingly on the right side of her waist over her winter coat or jumper.

From the CCTV footage, it appears that CD was wearing a winter coat over a jumper, but it may have been only a jumper and a scarf. As we shall see shortly, CD first accepted that she was wearing a jacket, and then described it as a jumper. Either way, it appears to have been a heavy garment, dark in colour, and large and loose in its fit.

As indicated earlier, CD said in evidence that she felt someone “touch my, like, hip, lower hip, pelvic area”, yet the charge mentioned her stomach. She was not touched on the stomach. The “lower hip, pelvic area”, I think, is also an inapt and misleading description. At least on my understanding of human anatomy (inexpert though it is), it is plain from the CCTV footage that AB touched CD on the right side of her waist. At a stretch, the contact might be described as near the upper extremity of the hip area.

In cross-examination, this exchange occurred:[16]
[16]My emphasis.

You have given some evidence this morning about the contact from [AB] on that evening. Would it be fair to describe that contact as a tack, trying to get someone’s attention? - - - Definitely not.

The contact was to your hip, your right hip? - - - Yes.

On the side of your body? - - - Yes.

That side of your body was closest to the direction [AB] walked from, wasn’t it? - - - Yes.

… . It was winter in Melbourne, wasn’t it? - - - Yes.

You were rugged up and wearing a black jacket? - - - Mm-hm.

And the contact was made to the surface, the external surface, of the black jacket you were wearing? - - - Yes, a jumper.

You would agree that at the time the man’s hand was in contact with your hip was momentary, it was a fleeting touch, wasn’t it? - - - No, I’d say it was like intimate, trying to get my attention type touch, not a little brief touch.

You were asked this question in the Magistrates’ Court, “Would you agree that the time that the man’s hand was in contact with you was momentary … a fleeting touch?” “Yeah” - - - Okay.

Were you asked that question and did you give that answer? - - - Yes.

And that was a truthful answer, wasn’t it? This was a very brief touch by the accused man? - - - Yes.

After you feel the touch, you look to your left. You agree with that? - - - Yes.

And you … turn around and you see him standing there looking at you? - - - Yes.

And he’s smiling at you? - - - Yes.

In evidence-in-chief, CD said that the person who touched her did not say anything at the time. (This is consistent with the CCTV footage.) Next, she looked around and saw AB standing about 10 to 20 metres away, “with his arms crossed, smiling at [her]”. In cross-examination, however, CD agreed that AB “had his hands behind his back while he was there smiling”. She also agreed that he smiled at her for a moment; that she was looking at him while he did that; that she then looked away; and that he then left.

The CCTV footage shows that AB did not slow or turn towards CD as he touched her and walked past. Instead, with eyes front and while not at all looking at CD, he just kept walking straight ahead at the same pace for another eight or so steps, and then stopped, turned 180 degrees (so that he was facing back towards the left of CD and EF) and stood with his hands behind his back, smiling. CD turned to her left, looked at him, and then turned away again. Immediately thereafter, at about 18:42:57, AB did an about-face and walked off in his original direction (i.e., further away from CD and EF) and out of sight.

CD said that “[i]t was a very, like, intimate touch as well, like, not a stranger, like”; and that she felt, “[y]ou know, violated, like, just — yes, just uncomfortable”.

CD said that she told EF what had just happened, and that EF asked about the man who had touched her.

The CCTV footage also shows that the following events occurred next. After AB walked away, CD and EF looked around, including in the direction in which AB had departed. At about 18:43:24, so about 26 seconds after he had done an about-face and walked away, AB walked back past CD and EF on the far side of the footpath and in the opposite direction to his original pass. AB did not appear to look at either CD or EF, who had their backs to him. Instead, AB looked straight ahead. Neither CD nor EF gave any evidence about noticing AB walk back past them.

The CCTV showed that, shortly afterwards, a woman (who appeared to be tending to the shopfront) tapped EF on the back (on his back-pack) in an apparent attempt to alert him and CD to the fact that it was their turn to be served. CD then stepped forward and bought something from the shop. Thereafter, CD and EF walked off to their left (i.e., in the same direction as AB had walked away initially).

CD goes to police (17 June 2018)

I should note, at this point in the chronology, that CD gave evidence that, on 17 June 2018 (i.e., two days later), she went to the police and provided them with “certain information”.

Fourth (and final) incident (19 June 2018): CD speculates that AB hit tram

The fourth, and final, incident occurred on 19 June 2018.

After work, at about 5:45 p.m., CD went to her city tram stop. Again, she saw AB in the general area. He did not, however, approach her there.

AB boarded the Number 3 tram, which pulled away. CD then boarded her usual Number 6 tram, which was directly behind the Number 3.

After leaving Swanston Street, the two trams travel the same route along St Kilda Road until the point where the Number 6 turns left (into High Street) and the Number 3 keeps going straight ahead (towards St Kilda). At that separation point, AB left the Number 3 tram and boarded the Number 6 behind it. CD was sitting diagonally opposite the door in the middle of the tram. As he boarded the tram, AB came straight up to CD and said “Hi” very cheerfully. CD did not respond. AB moved towards the front of the tram.

In evidence-in-chief, CD said that AB appeared to pace up and down while at the front of the tram. In cross-examination, however, she agreed that he was not pacing up and down. Instead, he “was just moving around in little circles close to the tram driver”.

CD said that, although she had his back to him, she could see in a reflection in the tram window that AB was looking back at her. To her, he appeared “a bit annoyed”. In evidence-in-chief, CD went on to give this evidence:[17]
[17]My emphasis.

When you say you think he was a bit annoyed, did you observe anything for you to say that? - - - I remember him, like, hitting something, like — or — like, on the tram extension bit.

Okay? - - - Yes.

In relation to the type of tram you were on, was this a new modern tram? - - - Yes.

So is this the tram that’s — do you know the word “articulated”, it goes around corners? - - - Yes, that’s what it is. Yes.

Now, where you say — and I don’t want to get the word wrong — what part of the tram did he hit? - - - The part that, like, that was extend and turn, like —

Okay? - - - Yes, if that makes sense.

Is that a hard wall or a concertinaed wall type thing? - - - Yes. The — it’s not a hard wall.

So that’s the area he hit? - - - Yes.

When you saw that, how did that make you feel? - - - Pretty scared because I knew he was — it was anger for me.

At a point in time, did you get off the tram at your usual stop? - - - Yes, I did.

And you later reported what you have just told to the court to the police? - - - Yes.

In cross-examination, CD agreed that, when AB boarded the Number 6 tram, he was “right in front of [her]”. She agreed that, after saying “Hey” in a cheerful way, AB just moved towards the front of the tram, and that the “annoyance” she alleged came later.

CD accepted that, as the tram neared her stop, AB moved back towards her. She also agreed that she had said in the Magistrates’ Court that at that point AB said, “Have a great evening,” although she was unsure whether this occurred.

In cross-examination, CD was asked about the hitting of something on the tram:[18]
[18]My emphasis.

And you mentioned that he hit something on the tram? - - - Yes.

Did you still have your back to him at that point? - - - Yes.

And do you agree that he said something to you as you were getting off the tram and it’s after that point that he hit something, you think? - - - Yes.

… [O]n 20 June 2018 … police came to your work and you told them that you saw him hit a sign in the tram? - - - Yes, I did.

And you signed the notes of the police officer on that day confirming that that was true and correct? - - - Yes.

You also made a statement on 28 June [2018] where you also confirmed as true and correct that you saw him hit a sign in the tram? - - - Yes.

And both of those things are now wrong, aren’t they? - - - Yes, they are.

It’s also wrong that you saw him hit the corrugated part of the tram or the concertina part of the tram. You just think you did because you had your back to him? - - - I’m sure you have video surveillance, but he, like, there was a massive bang. I just assumed he hit, like, the sign of the corrugated bit of the tram, but, like, yes, he might have not done that, but he did something for — to make everyone look.

You didn’t? - - - I’m sure you’d have that —

So your evidence now is that you never actually saw him strike anything, do you agree, but you think you did? - - - Yes, yes.

Further, on the noise CD heard, the following exchange occurred in re-examination:[19]
[19]My emphasis.

And the other matter I just want to take you, if I can go to the incident on [19 June], and my friend has just asked you some questions about this - - - Yes.

[H]e put to you that you didn’t actually see him, him the accused, hit anything. Do you remember that? - - - Yes.

And you agreed with that proposition? - - - Yes.

But you told him that you heard a massive bang? - - - Mm-hm.

When you heard a massive bang, did you do anything? - - - Like everyone turned around. We all turned around. That’s what — like I — that’s why I put it in my evidence because I knew that he did something. I’m not sure exactly what he did, but it was like a scene - - -

I will just flesh that out, if I could. When you heard the massive bang, where did the massive bang come from or emanate — come from — from within the tram? - - - From what I recall, like — that’s why I thought he hit the corrugated bit of the tram because it came from like that area, like the front corrugated bit.

So is that where the sound came from?- - - Yes.

The massive bang? - - - Yes.

So when you heard the massive bang, I think you just told the court that you and everybody turned around. Is that right? - - - Yes.

Where was the accused standing when you turned around in relation to where the sound came from that caused the massive bang? - - - I can’t exactly like remember what exact — but like in the premises of that area and - - -

Okay. No further questions, Your Honour. If the witness could be excused.

EF’s evidence

I turn to the evidence of EF, who was CD’s colleague. EF said that, after work on 15 June 2018, he and CD went to a shopfront in Swanston Street so that CD could buy some tobacco. While at the shopfront, CD turned to EF and said, “That’s him. That’s my stalker.” In EF’s view, CD “started appearing pretty distressed”. For the rest of the evening, CD was “off centre” and “wasn’t quite herself”, but they still ended up going out, as planned.

Detective Paulet’s evidence

CD’s statements to police

On 18 June 2018, Detective Paulet was stationed at the Transit Crime Investigation Unit. He became involved in this matter on that day. CD had made a statement on 17 June. On 19 June, he spoke to CD for the first time. He said that, “from that conversation, a [second] statement … was later signed … on 11 July 2018”.

CCTV footage

Detective Paulet’s inquiries revealed that CCTV footage showed that, on 6 June 2018, AB was in the city at the time of the alleged incident at CD’s home tram stop. (Plainly, then, when regard is had as well to AB’s account in his interview, to which I shall turn shortly, the first incident could not have occurred on 6 June, and must have occurred on 5 June.)

Detective Paulet obtained the CCTV footage of the incident outside the shopfront in the city that occurred on 15 June 2018.

He also made inquiries about the availability of CCTV footage of the relevant tram journeys, but was told that “none of those tram trips had internal CCTV”.

After being given AB’s phone number, police were able to track his movements and find him on 21 June 2018. He was arrested and later interviewed by Detective Paulet and another officer.

In cross-examination, Detective Paulet agreed that, on multiple occasions in his interview, AB asked police to obtain CCTV footage from on board the relevant tram journeys on which CD and he travelled together. He agreed that AB’s legal representatives had made the same request. He said, however, that he was unable to obtain the footage.

Detective Paulet accepted that, from the descriptions given by AB and CD of the tram on which they travelled on 19 June 2018, it was one of the newer trams, which more commonly have CCTV cameras. He said that he could not “definitively say” that he identified the exact tram on which they travelled. To the best of his recollection, he was advised that no footage was available. Initially, he was not sure whether he received this advice by email or telephone, but later said that he recalled a telephone conversation. He agreed that there was a mix-up with the dates, but he did not recall whether he asked for the wrong date or not. He did not make any further inquiries about CCTV. He did not attend the location where the CCTV footage was kept, obtain a warrant or issue a subpoena.

AB’s record of interview

The interview (which was recorded in audio-visual form) was played to the judge in court. His Honour also received the recording (or a copy thereof) as an exhibit.

The exhibit is before this Court, as is a transcript of the interview. I have played the audio-visual recording and read the transcript.

Prior to the commencement of evidence, the prosecutor foreshadowed an agreed editing of what were said to be the irrelevant parts of the interview. The judge, however, decided that it was unnecessary to take this course. His Honour indicated that, if told of the edits later, he could ignore the parts so identified. But it does not appear (from the transcript of the hearing) that the judge was ever told, or that he asked, which parts to ignore. This was unfortunate, because, as we shall see, there were parts of the interview that should have been excluded or at least explained.

Included among the things AB said in the interview were the following:

a) After police told him that the interview “relates to the offence of stalking and an alleged sexual assault”, AB asked how these offences were defined.

b) As for stalking, Detective Paulet said that, while he could not “verbatim give … the definition, … it’s … [b]asically, a course of conduct … which, by your actions, would make the other person apprehensive or in fear … And the allegation is that, because of your actions, a particular individual has been made scared and … in fear.”

c) As for sexual assault, AB asked, “So … any touch on any person is considered a sexual assault?” Detective Paulet answered, “Not necessarily, no. So, a sexual assault can mean touching a male or a female in some particular areas that may be in the genitals or the buttocks or for a female in the breast region or any other part of the body with intent to get sexual gratification.”

d) AB’s response was: “I haven’t done any stalking or [any] sexual assault”.

e) When asked to explain his relationship with CD, AB denied doing anything to cause any fear or having any intention of doing so, and he denied sexually assaulting anyone.

f) He said that the CCTV footage would show that there was no case of anything like sexual assault.

g) After police conveyed CD’s written account of the first incident (which, erroneously, was said to have occurred on 6 June), AB appeared to agree with the substance of that account, excluding the actual occurrence of the kiss on the cheek, and he denied that he had followed CD to her home. He said he did not move from the tram stop or go to her house.

· (Before the judge, CD gave no evidence that AB followed her to her home. This is one of the parts of the interview that should have been excluded — or, given the judge’s preferred approach, should at least have been identified as irrelevant to his Honour’s task.)

h) When it was conveyed that CD’s allegation of the second incident was that it occurred the next day (i.e., the day after the first incident), AB denied this, and said he did not meet her the day after.

i) In reference to the allegations that, on the first occasion, he left the tram stop and followed CD to her home and that the second meeting occurred the day after the first, AB then said that “that’s … not true, is lies, and is — I’m nearly fainting with that now. It … seems is a very nasty attempt to … make bad on me … to damage me”. (Later, AB returned to similar themes.)

j) Of the first incident, AB denied putting his number into CD’s phone and said that he gave her his number when she asked him, and that she put the number into her phone.

k) When it was alleged that he “grabbed her and kissed her on the cheek”, AB said that he did not grab her. When asked whether there was “any form of touching”, he said that there was “no other touching, no grabbing, nothing like what it says there”.

l) When asked about the kiss on the cheek, he said: “No. No. I did an action towards doing that, though I didn’t … even touch her with that. She offered me her hand and that’s why”.

m) He repeated that, after CD left the tram stop, he stayed there and then took the next tram home.

n) When asked about CD offering her hand and the kiss on the cheek, AB said that he went to kiss her but did not touch her. He said she “was a very friendly girl before that for 35 minutes, giving clearly … an impression, a positive impression to me and that’s why I did that move as a gesture of good, like … of a good way, not like it’s a man and a woman”.

o) When asked to describe what happened when he moved in to kiss her, AB said that CD “had her hand that way and [he] did that, like, kissing her without kissing her”. He went on: “So I did the move, I didn’t touch her”. (When giving this account, AB demonstrated by leaning his head forwards and tilting to the side.)

p) When asked why the kiss didn’t occur if he moved in, AB said, “Because I had just met her and maybe that would be too much to do it. … And I don’t want to touch her with certain parts of my body.”

q) When asked whether she pulled away when he tried to kiss her, AB said that she did not.

· (I should add that CD did not give any evidence of pulling away. This is yet another passage in the interview that should have been either excluded or at least identified as irrelevant to the prosecution case. If anything, the fact that CD gave no evidence of pulling away could go only to the defence case on consent or reasonable belief in consent.)

r) When the second incident was raised again, police said that it was alleged that AB approached CD at the tram stop and tried to start a conversation about how her day was going, but that she was quite blunt and said that she did not want to talk to him. AB agreed that he was at the tram stop in the city and that he spoke to CD, but he denied saying anything inappropriate or offensive to her. When it was put that he got on the same tram as her, he denied this. Instead, he waited for CD to go and then took a different tram. He said that any CCTV footage at the tram stop or inside the tram would verify that.

s) Accounts by CD of the third and fourth incidents were then read to AB. He was shown a screenshot from the CCTV recording of the third incident (showing the moment of the touch on the waist on 15 June). Of that third incident, the police conveyed that CD said that she felt “violated”, that it was “very intimate”, and that she “can’t stop worrying about when I’m going to see him next and what he might do to me”.

· (CD did not give any evidence that she could not “stop worrying about when [she was] going to see him next and what he might do”. This is yet another passage in the interview that should have been excluded.)

t) Then, after giving CD’s account of the fourth incident (on 19 June), the police conveyed that CD said, “I’m very scared to catch the tram and it’s scary to think he knows which tram I always catch.”

· (Again, CD did not give this evidence, and this passage should have been excluded.)

u) AB said that he felt he was being trapped. He repeated part of his account of the first occasion, including the friendly conversation they had for 35 minutes, that CD was laughing and smiling, and that “she was making everything look fine”. He reiterated that he did not move from the tram stop or go near her home. He said that the CCTV footage from the tram would confirm this. He now felt that she was “faking [him] that everything [was okay] and fine”.

v) Then, when asked to respond specifically to the allegations concerning the third occasion, AB reiterated the positive impression he believed he had been given by CD. He said that at no point had she told him “not to talk to her or go near her or anything like that”. It was against that background that, on this occasion, having seen her pass by and then stop, he “went … in a very friendly and nice way to … show her that I’m there and that … I’m happy to see her …”. He said that he had the impression that “everything is fine and great” and that he:

went to, in a way, show her that I’m there and in case she wanted to talk to me. And, yeah, and to show her that I’m there … in a very calm … a very gentle way, I touched her so that — because otherwise she was looking in a different direction and, as you said, I went near her and stood … and smiled [which] clearly shows that what I was believing and what was the impression that she was making me believe was is everything is fine and that coming across her … it may be, like, nice — a nice thing. And after that, after maybe [a few seconds], I turned around and left. … [F]rom the moment she didn’t respond to the fact that I smiled at her, she didn’t want to talk to me, and so that’s why I immediately turned around and left. … And so with that nice and positive impression I had at that point and was created to me, I went to make my presence known that I’m there, in a very friendly way.

w) When asked specifically about the fourth occasion, AB said that he believed that the tram had cameras and would have footage, and he asked whether the police could get the footage. Of the incident, he said that, when he got on the tram, CD was nearly in front of him. He said a quick “Hi”, in a very friendly manner, and, when CD did not reply, he moved to the front of the tram. CD was then behind him. He did not look or stare at her. He also said, “Have a great evening.” He denied being angry. He denied touching signs or anything like that.

x) When asked why he was in the city on each of the four days, AB said that he goes to the city “about every day”; he goes there to get dinner most days, or to walk around, get a haircut, go to the bank, or do anything he has to do there. He denied going to the tram stop because of CD. That was the tram stop he attended every day he went to the city well before he knew CD. He said that the CCTV footage of that stop would prove that.

y) AB also said that at no point during the first two interactions did CD make it clear that she did not want to speak to him. On the contrary, the impression he got was that everything was fine. AB also said that at no point during their interactions was there anything that indicated that she was fearful or anything like that.

No prior or subsequent convictions or findings of guilt

Detective Paulet gave evidence that AB had no prior or subsequent convictions or findings of guilt in either Australia or the two other countries in which he had lived before coming to Australia.

Bank records

Through Detective Paulet, defence counsel tendered, and the judge received, bank records showing AB making numerous purchases at 7-Eleven shops in the city between 20 March and 20 June 2018.

NO DISCUSSION OF PARTIES’ CASES, ISSUES IN DISPUTE OR APPLICABLE LAW

Close of prosecution case

Immediately following Detective Paulet’s evidence, the prosecutor announced the close of the prosecution case.

No evidence given or called by AB/No submission of no case to answer

The judge then called upon defence counsel to indicate AB’s proposed course.[20] Counsel answered the judge’s query by announcing that AB did not intend to give evidence or to call any witnesses.
[20]See ss 66 and 67 of the CPA.

Counsel did not seek to make, nor was he invited by the judge to make, a submission that there was no case to answer on any of the charges.[21]

No discussion of prosecution case, defence case, issues or law

[21]See s 69 of the CPA.

Neither at this stage nor at any other on the appeal did either party seek to raise any issue about how the prosecution put its case on any of the charges or how the defence case was put in response. Nor did the judge invite any such discussion.

Counsel did not make, and the judge did not call for, any submissions on the law. No mention was made of the meaning of “sexual” in s 40(1)(b), of when “touching may be sexual”, of the terms of s 35B(2), or even of the existence of either that provision or s 35. I find this puzzling, not only because his Honour is such an experienced judge, but also given the nature of the allegations of sexual assault in this case and the dearth of authority on sexual touching.

No final addresses

Further, neither the prosecutor nor defence counsel sought leave to give a final address.[22] Nor did the judge invite final addresses.
[22]See ss 73 and 74 of the CPA.

Instead, immediately after defence counsel indicated AB’s course, the judge gave his reasons for finding the charges proved.

JUDGE’S REASONS AND FINDINGS

Findings and sentence in Magistrates’ Court

The judge commenced his reasons by explaining that the appeal was from three charges found to have been proved in the Magistrates’ Court following pleas of not guilty. He recounted the magistrate’s sentence.

Elements of sexual assault

The judge read out the charges. He then listed the four elements of sexual assault substantially in the terms in which they appear in s 40(1) of the VCA (which I shall set out fully later). In particular, his Honour said this:[23]

[6] … The four elements of sexual assault are: (1) that the accused intentionally touched the complainant in the way alleged; (2) that the touching was sexual; (3) that the complainant did not consent to the touching; and (4) that the accused did not reasonably believe that the complainant consented to the touching.

[23]I have altered the paragraphing and edited some of the punctuation found in the transcript. For the sake of brevity, but hopefully without distorting the context, I have excised some passages (which excisions are shown by ellipses). For convenience, I have also inserted paragraph numbers for these and the following passages in the judge’s reasons.

No mention of s 35B(2) of the VCA

Consistently with his failure to raise these issues with counsel, however, at neither this nor any other point in his reasons did the judge make any reference to the terms, or even to the existence, of s 35B(2) of the VCA, or of how this provision might apply to the evidence led in support of the two charges of sexual assault.

I find these omissions even more striking than the lack of discussion of these provisions and issues with counsel. Of course, it is not necessary to go into chapter and verse on the applicable law, especially when it is well known or there is no controversy about it. The same often goes for the way in which the prosecution and defence cases are put. Many a summary hearing is conducted in this way, and usually that is sufficient. But this case was different. It cried out for at least some outline of the prosecution and defence cases and an analysis of the relevant provisions and the meaning of sexual touching.

Elements of stalking

The judge listed a truncated version of the elements of stalking in s 21A of the VCA (the relevant parts of which I shall set out later):

[7] So far as the charge of stalking is concerned, the prosecution must prove two elements: first, that the accused intentionally engaged in a course of conduct that included particular types of actions; and secondly, that the accused either intended that his course of conduct of[24] the complainant made her feel frightened or apprehensive about her own safety or about the safety of someone else or that the accused knew that his course of conduct would be likely to harm the complainant or make her feel frightened or apprehensive about her own safety; or [three] that the accused ought to have understood that his actions would be likely to harm or frighten the complainant or make her feel apprehensive about her own safety and his conduct actually did have that effect.

[24]Presumably, his Honour meant something like “towards” or “in respect of”.

Prosecution relies on all evidence

After observing that the appeal was by way of a hearing de novo,[25] the judge noted the following:[26]

[8] … [T]he prosecution relies on the evidence of [CD] and [AB’s] record of interview, which I shall later return to, and some CCTV footage taken on 15 June 2018 and on a still photo shot taken from that footage. It relies upon all of this evidence to prove its case beyond reasonable doubt.

[9] [CD] gave evidence of four separate incidents that occurred on [5, 7, 15 and 19] June 2018. It’s necessary to traverse some of her evidence.

[25]While such appeals “must be conducted as … rehearing[s]” (see s 256(1) of the CPA), they are, in truth, conducted as hearings de novo (see, for example, Neil v County Court of Victoria & Anor (2003) 40 MVR 265 at 270[14]-271[15] (per Redlich J) on the equivalent provisions in the Magistrates’ Court Act 1989 (Vic), which were in similar terms to those in the CPA; and Keech v County Court [2017] VSC 525 at [18], [52], [93], [95] & [100] (per Riordan J)).

[26]My emphasis.

Evidence of first incident (i.e., the cheek-kiss)

His Honour then turned to a summary of the evidence concerning the first incident:[27]
[27]My emphasis.

[10] … [CD] said that she was working at [her workplace] in the city of Melbourne at an office near the intersection of Swanston Street and Bourke Street. On 5 or 6 June … she finished work at around 5:30 and went to catch the Number 6 tram.

[11] [CD] and [AB] have but one thing in common in this proceeding and that is that they both lived, at the relevant time, at addresses serviced by the Number 6 or Glen Iris tram which runs from Melbourne University at the northern end to the terminus at Glen Iris. The tram, relevantly, travels across[28] Swanston Street in Melbourne, down St Kilda Road, where it makes a left-hand turn, and then travels along High Street to Glen Iris.
[28]The context makes clear that his Honour meant “down” or “along”.

[12] [CD] gave evidence, which I accept, that she boarded the tram at around 5:30 at the corner of Bourke Street and Swanston Street. She said she was then aged 19. A man, later identified as [AB], approached her on the tram. She said he sat down next to her. She was pretty sure it was [6 June], but it could have been [5 June]. She said, “I was sitting on a tram. There was a spare seat. … [He] appeared to be aged in his late-20s.” She said, “He sat down and engaged in friendly conversation. He was aboard the tram for about a half an hour, maybe 35 minutes.” She said she got off the tram at [her home stop]. She said the man told her that he lived in [a suburb further on]. They had 30 minutes … of nice conversation before she got off. She said, just before she got off, he asked her if she would go out with him on a date, which she declined. She said she was caught off-guard. She declined the invitation for a date.

[13] She got off at her normal stop … . She was unsure whether he asked her for a date more than once. She said she got off the tram and [AB] was still on the tram, but she then heard him ask the driver to reopen the doors. She got a bit of a shock. [AB] got off the tram and they walked off to the footpath and [AB] came towards her. She said that he asked for her phone number, which she did not want to give him, because, as she said, “I’d just met the man on the tram.” … She said she wasn’t comfortable giving him her number as she just met him. He asked a few times and she refused. Then [CD] said in evidence, which I accept, that she asked [AB] for his phone number, which he gave her, and she put it into her phone and put it down under the name [AB].[29] … She said that [AB] wanted her to text him. He kept saying to her, “Make sure you text me.” She said that she went home. One other tram travelling in an easterly direction along [her street] went past.
[29]AB gave her his nickname, which I shall not repeat, as it may tend to identify him.

[14] She then went to walk to her house some 300 metres away and she was asked if anything happened. Before that, she said that, before they departed, [AB] “kissed me on the cheek”. She said, “He grabbed me with my arms, pulled me in a foot or two” — she said they were a foot or two apart when talking — “He pulled me in, kissed me on the cheek. I can’t remember if it was the left or the right side.” She said, when he kissed her, she felt shocked, violated and not safe, and didn’t say anything or do anything to invite it.

[15] In cross-examination, she agreed that she at first went to shake hands with [AB] and offered her hand, which he did not take, but grabbed her on both arms[30] and pulled her towards him. There was an issue in cross-examination where at one point she said that [AB] did not kiss her, but in re-examination this was clarified and she said that he intended — appeared to intend — to want to kiss her on the lips,[31] and that’s what she understood the question to be addressed to, but [AB] definitely kissed her on the cheek. [CD] said that she was shocked. She didn’t want to do anything.

[16] She said that, as she went towards her home, she looked back and [AB] was still the tram stop, looking in her direction.

[17] In his record of interview, [AB] denied these actions alleged against him.

[30]These emphasised words, or their gist, were said in evidence-in-chief by CD, but not in cross-examination when she was specifically asked about this cheek-kiss.

[31]As we have seen (from the evidence outlined earlier), this emphasised passage is not an accurate account of CD’s evidence in re-examination. See further below.

Word against word and good character

Next, the judge said this:

[18] This is a case of one witness’s word against the other and it’s a case where [AB] appears before the court with no prior convictions, either before or since, either in this country or in [the countries in which] he has previously resided. He is a permanent resident of Australia, according to what he told the police when later interviewed.

His Honour then directed himself on the use to be made of evidence of good character. As there is no complaint about these directions, it is unnecessary to extract them here.

CD as “an impressive witness” contrasted with AB in his interview

Next, his Honour said these things about CD as a witness:

[21] [CD], in my view, was an impressive witness. She was wont to understate the circumstances in which she found herself. She held back in complaining to police. I thought she made appropriate and relevant concessions during the course of her evidence, both in-chief and in cross-examination.

Immediately thereafter, and in contrast, the judge said the following about AB’s approach in his police interview:

[22] [AB], on the other hand, when interviewed went out of his way to accuse [CD] of conjuring up a case against him and that it was a pack of lies. [AB], when interviewed, was most cautious, and I don’t hold that against him, however, he seemed anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events.

First, I think it is at least unclear whether his Honour found proven the allegation that AB hit the tram during the fourth interaction, or that he relied on any such finding, in concluding that stalking was established.

Secondly, given the way in which the judge described the prosecution case on stalking — as relying on all four incidents and as comprising loitering, following and hitting the tram — but referred only to loitering and following in his findings, without reference to specific occasions, it is quite unclear on which of the alleged instances of conduct his Honour’s finding of guilt was based.

I reject the Director’s submission that the judge’s reasons were adequate to reveal his path of reasoning to his conclusion that the stalking charge was proved.

For the reasons I have given, they were not adequate to achieve this requirement at all. An accused must not be left to guess at which parts of the evidence the judge has acted on in reaching his or her ultimate conclusion of guilt. Nor may an accused be left in the dark about which alleged instances of conduct his or her conviction is founded upon. Reasons which suffer from this defect have the potential to leave the accused with a justified sense of grievance that the judge has not reasoned towards guilt in accordance with the law and the evidence, yet with an inability to ascertain precisely why that is so. That, at least in part, is the situation that faces AB with these reasons.

Accordingly, this ground is made out.

CD AS A WITNESS

Grounds for review

Under cover of Grounds 4(a)(ii) and (b)(ii), AB complained:

a) that it was unreasonable to find that CD was “wont to understate the circumstances in which she found herself”; and

b) that the judge failed to provide adequate reasons for that finding.

Judge’s findings and reasons

The impugned findings and reasons are located in passages of the judge’s reasons that I extracted earlier, when setting out most of those reasons en bloc. Nevertheless, it is convenient to reproduce them again here:[157]

[21] [CD], in my view, was an impressive witness. She was wont to understate the circumstances in which she found herself. She held back in complaining to police. I thought she made appropriate and relevant concessions during the course of her evidence, both in-chief and in cross-examination.

[157]My emphasis.

Whether unreasonable or irrational findings

AB’s submissions

AB submitted that, far from being “wont to understate [things]”, CD was shown to have lied, or at least to have given inconsistent, exaggerated and incredible accounts, and to have been unsure, unable to recall and unreliable. He also attacked the judge’s related findings — namely, that CD was “an impressive witness” and that she “made appropriate and relevant concessions” in evidence.

In support of this submission, AB pointed to several parts of CD’s evidence, including the following:

a) As we have seen, while CD conceded in cross-examination that AB did not actually kiss her, she went on, in re-examination, to give (what was submitted to be) an implausible excuse for her concession.

b) In evidence-in-chief, CD said that, when they got off the tram, there was discussion about her taking AB’s number, whereas, in cross-examination, she accepted that, at that point, “the conversation [was] still about [her] taking his mobile phone number”,[158] which, in context, implied that she accepted that it had been happening while they were on the tram. Further, she was asked, “Prior to that, though, he had been offering you his phone number?”; but her answer was, “I don’t recall that, but if that’s how it happened — yes, yes, no comment. I don’t know.” Yet, only moments before, CD accepted that, in the Magistrates’ Court, she had agreed that AB had offered his phone number at effectively the same time as he had asked her out, which had occurred on the tram.
[158]My emphasis.

c) In evidence-in-chief, CD said that AB put his number into her phone (expressly in answer to the judge’s question), whereas, in cross-examination, she conceded that she did this herself.

d) CD gave evidence of being touched on “the like, hip, lower hip, pelvic area”. This, AB submitted, was at least an exaggeration — the opposite of being wont to understate — as the CCTV showed clearly that she was touched on the right side of her waist.

e) As we have seen, in evidence-in-chief, CD implied that she saw AB hit a sign on the tram. However, in cross-examination, she conceded that, while she had told police that she saw him do this and had made a written statement confirming this, she had seen no such thing. She also confirmed in re-examination that her concession in cross-examination was correct.

Director’s submissions

The Director submitted that AB’s contentions that CD lacked credibility and reliability were simply not made out. In her submission, the judge had the significant benefit of seeing and hearing CD during her evidence. In those circumstances, his Honour was entitled to reach the positive conclusions he did about CD’s evidence.

Discussion

I think that the better characterisation of the judge’s positive finding about CD (i.e., that “she was wont to understate the circumstances in which she found herself”) is that it was not so much about understatement versus exaggeration or truth versus lies but a finding that, given the concerns CD expressed in evidence about AB’s repeated presence, she showed some restraint in delaying her report to police. So much is apparent from the very next sentence, where his Honour said that CD “held back in complaining to police”.

The judge’s related findings — namely, that CD was “an impressive witness” and that she “made appropriate and relevant concessions” in evidence — more squarely suggest that his Honour accepted that CD was credible and reliable. But, for the following reasons, I am not persuaded that it was irrational for the judge to make these findings.

First, each point made by AB is capable of being answered by the limitations of human observation and memory, and by the stress that is often involved in giving evidence. The relevant events occurred in June 2018. The appeal was heard over two years later, in September 2020. Experience tells that, sometimes, some witnesses simply are not as observant as others. Equally, many forget detail over time or find it hard to be composed and clear-headed when giving evidence.

Secondly, some witnesses do make mistakes or become confused, but are honest enough to admit their errors when they appreciate them. CD’s concessions to being unsure about various matters are capable of being viewed as falling into this category.

Finally, it must be remembered that, unlike the police interview, which was before both the judge and this Court in audio-visual form, only the judge had the benefit of seeing and hearing CD give evidence (albeit via WebEx). Given that singular advantage, it would be a rare case in which this Court, on judicial review, would be persuaded that a judge’s findings about a witness’s credibility and reliability, which necessarily are informed in part by matters of impression, were in excess of jurisdiction.[159]
[159]In saying so, I am conscious of the limitations of assessing credibility based primarily on demeanour (as to which, see, for example, Makeham v Sheppard [2020] VSCA 242 at [87] (per Weinberg JA, Kyrou JA agreeing)).

As it happens, I am not so persuaded. Indeed, while the considerations to which AB has pointed may have caused others to make less favourable findings about CD as a witness and to doubt disputed aspects of her evidence, I think it was open to the judge to find that she was an “impressive” witness, that she “was wont to understate the circumstances in which she found herself”, and that she “made appropriate and relevant concessions”. In short, I am not persuaded that these findings were irrational.

It follows that, even if this ground were available, I would reject it.

Inadequate reasons

AB’s submissions

AB also submitted that the judge’s reasons were inadequate to explain his path of reasoning towards the impugned conclusions. He relied on a passage in the judgment of Ginnane J in Grabski v Beier,[160] where his Honour said this:

Douglass v The Queen[161]suggests that in criminal trials conducted by judge alone, where credibility is in issue, reasons may be insufficient if they simply state that the complainants are believed over the accused.

[160]Grabski v Beier [2020] VSC 156 at [51] (per Ginnane J).

[161]Douglass v The Queen (2012) 290 ALR 699.

In AB’s submission, instead of addressing the numerous inconsistencies, exaggerations and flaws in CD’s evidence, the judge misleadingly described her as making “appropriate and relevant concessions during the course of her evidence”. This, in his submission, was inadequate.

Director’s submissions

The Director submitted that the judge’s reasons were adequate to explain his path to the impugned findings in what was a relatively straightforward case on credibility. The present case was unlike Grabski v Beier, which involved a finding that the complainants were credible in circumstances involving contradictory and implausible evidence, and the absence of any reference to the good character evidence of the accused. In the Director’s submission, the reasons given did not infringe the requirements established by the High Court in Douglass.

Discussion

A judge, when giving reasons, need not address every possible argument or piece of evidence suggesting inconsistency or the like in a witness’s evidence. There is still room for a degree of impression and shorthand findings. I think that, when read as a whole, the judge’s reasons were clear enough in explaining why he took a positive view of CD as a witness.

While I agree that it would have been preferable if the judge, in making any finding about CD as a witness, or at some other point in his reasons, had addressed the various issues that AB identified in respect of the impugned findings, I am not persuaded that his reasons were inadequate. Accordingly, I reject this ground too.

AB’S RECORD OF INTERVIEW

Ground for review

Ground 4(c) complains that the judge made unreasonable findings when assessing the credibility of AB, including by finding that, during his police interview, AB “seemed anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events”; that he was “evasive”; and that his response was designed to “besmirch” CD.

AB also complained that the judge erred in failing to consider his exculpatory responses in the police interview.

Judge’s findings and reasons

As we have seen, immediately prior to stating his conclusions on Charge 1 (i.e., sexual assault arising out of the cheek-kiss incident), the judge said this:

[22] [AB], on the other hand, when interviewed went out of his way to accuse [CD] of conjuring up a case against him and that it was a pack of lies. [AB], when interviewed, was most cautious, and I don’t hold that against him, however, he seemed anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events.

Further, immediately following his conclusions on Charge 2 (i.e., sexual assault arising out of the waist-touch incident), the judge made these remarks:

[25] [AB’s] answer to this in the record of interview is not to be accepted by me. His answers, in my view, were evasive and he did not want to deal with the real issue when confronted by the image and the video evidence. His answer was to allege that he had been set up by [AB], which, in my judgment, was an attempt to besmirch the character and credit of [CD] and showed little insight into what he had actually done. I reject what he said in his record of interview absolutely.

His Honour did not make any references to AB’s answers in his interview vis-à-vis Charge 3 (stalking).

Whether unreasonable or irrational findings

AB’s submissions

AB submitted the judge’s findings were unreasonable or without any evidentiary basis. He submitted that it was unreasonable for his Honour to find that he was “anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events”. Instead, he submitted that it is plain that it was he who was urging police to get the CCTV to show his innocence. He pointed out that he told police, among other things, that the CCTV would show:

a) that there was no case of anything like sexual assault;

b) that he did not follow CD to her home on 5 June;

c) that he did not follow CD on 7 June and that they took different trams;

d) that nothing untoward happened on 19 June; and

e) that he regularly used the tram stop in the city, well before he met CD.

Further, AB submitted that he engaged with the police and answered the questions asked of him in the interview. The only occasion on which he asked whether police had CCTV footage, and whether he could view it, was in respect of 15 June. But it was obvious that the police in the interview had with them a screenshot of the moment AB touched CD’s waist on that date, which they showed him anyway.

Amici curiae’s submissions

Amici curiae submitted that part of the sting in the judge’s reasons is that he appears to have used AB’s answers against him as if they amounted to incriminating conduct or something similar. It was said that the reasons read as if the judge was intending to convey that only a guilty person would ask about CCTV footage before answering questions. Further, it was submitted that the fact that an accused asks police during an interview about the nature and type of evidence said to support the allegations against him “is not a matter which [could] or should weigh against [his] credibility or character”.

Director’s submissions

The Director submitted that the judge’s findings were reasonably open on the evidence. It was said that, when the impugned passages in the reasons are read against the interview as a whole, it can be seen that there was no error.

In response to amici curiae’s submission, the Director submitted that, while the judge said that AB was “most cautious”, he added that he did not “hold that against him”. I accept that, in view of the latter remark, and the failure to state explicitly that he was doing so, it is unlikely that his Honour employed incriminating conduct reasoning or the like.

Discussion

I am, however, persuaded that the judge made unreasonable findings in respect of AB’s responses in his police interview.

In my view, there was no rational basis for the finding that AB was “anxious to determine whether or not there was CCTV footage inculpating him before he would give a version of events”. On the contrary, as AB submitted, far from showing concern about CCTV footage that might inculpate him, it was he who suggested, repeatedly, that police might obtain the footage as it would exculpate him. He even gave the police specific examples of how he believed the CCTV would support his account.

Contrary to the judge’s findings, there was no rational basis for concluding that AB was “evasive” or that he “did not want to deal with the real issue when confronted by the image and video evidence”. Nor was it reasonable to find that AB was “most cautious”. On my observation of the interview, AB responded to each of the allegations put to him in a forthright and comprehensive fashion.

It is, however, apparent that AB was thrown somewhat when the police conveyed that CD had said that the first incident occurred on 6 June 2018, the day before the second incident on 7 June. As we have seen, this was wrong — the first incident was on 5 June, two days before the second incident. It is also clear that AB was aghast at the allegation that he had followed her to her home (which allegation was not the subject of any evidence by CD in the County Court, and which he strenuously denied). Further still, AB appeared shocked to be told that CD’s view of their interactions was quite different from what he had perceived. Yet the latter impression is also consistent with the judge’s finding that AB mistook the signals advanced by CD, which finding his Honour seems to have forgotten when assessing the interview. It is against this background that AB asserted that CD must be trying to “fake” or “trap” him. In my view, it was unreasonable to conclude from these responses that he was attempting to “besmirch the character and credit of [CD]”. AB, who was clearly taken aback, was simply attempting to defend himself.

That said, given the approach I have taken in this case to the ground alleging unreasonable findings, I am reluctant to uphold this part of the ground. I hesitate in saying so for this reason. Some of the judge’s impugned findings appear to have no basis in the content of AB’s responses. For example, as I have said, it was AB who was urging police to obtain CCTV; I do not think it can be said that “he did not want to deal with the real issue when confronted by the image and video evidence”. If that is correct, some of those findings would be bad in law. On the other hand, it seems that most, and perhaps all, of the impugned findings were influenced by his Honour’s impression of AB’s demeanour and the tenor of at least some of his responses. While I, like the judge, have had the benefit of seeing and hearing the audio-visual recording of the interview, it might be said that reasonable minds could differ on what to make of AB’s approach when answering questions. For that reason, I would not uphold this aspect of the ground, even if it were available.

Failure to consider exculpatory responses

However, I can and do uphold the second aspect of AB’s complaint — namely, that the judge erred in failing to consider at least some of his exculpatory responses in the police interview.[162]
[162]The discussion that follows should be read with the complaints, addressed earlier when dealing with the challenges to the judge’s conclusions on sexual touching, that the judge failed to take into account AB’s explanations for the cheek-kiss and the waist-touch.

In my view, the judge mischaracterised AB’s responses to the allegations. Further, he failed to identify several of the key parts of AB’s account. Consider the following.

In respect of the first charge of sexual assault, after setting out (part of) CD’s evidence on the events of 5 June 2018, his Honour said that AB “denied these actions alleged against him”. But, as we have seen, while AB denied that he went through with the kiss, he accepted, in the main, the account of the lead-up events put to him, including that he went to kiss CD on the cheek. Yet the judge made no attempt to make these important distinctions. Thus, to say that AB “denied these actions alleged against him” was a mischaracterisation of his response. At most, given that the judge accepted CD’s evidence (in re-examination) that the kiss occurred, this might be taken as a rejection of AB’s denial of actually going through with the cheek-kiss.

But, as we have seen, AB said a good deal more that was relevant to the first charge. For example, it will be remembered that AB said that he leant in to kiss CD on the cheek “as a gesture … of a good way, not like it’s a man and a woman”. Yet the judge made no mention of this evidence. Whatever else might be concluded about the character and circumstances of the cheek-kiss, this evidence was relevant to whether the kiss amounted to sexual touching and to whether AB might have reasonably believed that CD consented to the touching.

On the second charge of sexual assault, after setting out his findings and concluding that the charge was proved, the judge said that AB’s “answer to this in the record of interview is not to be accepted by me”, and that he “reject[ed] what [AB] said in his record of interview absolutely”. But, again, AB accepted the substance of the allegations concerning the waist-touch, including the surrounding circumstances. However, the judge failed to refer to AB’s explanation that, when he touched CD’s waist, he did so “in a very friendly and nice way to … show her that [he was] there”. As I said earlier in these reasons, this explanation was capable of placing this instance of touching in an innocuous light, at least where the element of sexual touching is concerned.

When addressing the stalking charge, the judge made no mention at all of AB’s responses in the interview, let alone any of those responses involving a denial of particular factual allegations that went (or may have gone) in proof of that charge. Thus, his Honour made no mention of either AB’s denial that he followed CD onto the tram on 7 June or his denial that he hit the tram on 19 June. As we have seen, the judge also failed to mention CD’s evidence on these issues in cross-examination and re-examination, where she effectively retracted these allegations. That his Honour made these omissions when summarising CD’s evidence makes it all the more likely that he paid no regard to these responses by AB.

In my view, even if the judge was entitled to make the adverse findings discussed under the first limb of this ground, it was still incumbent on his Honour to consider AB’s responses identified above. Much of what AB said in his interview had to be accepted (or could not reasonably be excluded) because those responses were consistent with other evidence, or became so after cross-examination and re-examination of CD and the evidence of Detective Paulet.[163] In that context, it was particularly important to consider all of AB’s responses, and especially those that went to factual issues critical to the elements of the offences charged (such as whether he followed CD onto the tram on 7 June and whether he hit the tram on 19 June) or were the only direct evidence on AB’s state of mind when he was engaging in the cheek-kiss and the waist-touch.
[163]It will be remembered, for example, that Detective Paulet’s evidence proved that the first incident could not have occurred on 6 June, as CD had alleged (because CCTV showed AB was elsewhere on that day), but must have occurred on 5 June, which is consistent with AB’s account that the first two incidents were not on consecutive days.

A trier of fact need not be convinced of an accused’s response before considering it in a criminal matter. On the contrary, an issue must not be found against an accused if his or her account gives rise to a reasonable doubt.[164] Thus, that account must be considered along with all of the other evidence when engaging in the fact-finding task and determining whether the element in issue is established beyond reasonable doubt. In the course of that process, the relevant aspect of the accused’s account may be rejected, but it must be considered.
[164]See, for example, Liberato v The Queen (1985) 159 CLR 507 at 515 (per Brennan J).

However, in my view, it is apparent, from the judge’s reasons, including his failure to refer to AB’s particular responses identified above, that his Honour did not engage in this task at all on any of those matters in issue.

It follows that I do not accept the Director’s submission that, because the judge set out much of the evidence in detail, he can be taken to have had regard to all relevant matters, whether or not they were mentioned in his reasons.

Accordingly, I am satisfied that this aspect of AB’s complaint is made good. Further, this failure affects all three findings of guilt, as the judge failed to consider AB’s responses that went to each of the three charges. In my view, the judge thereby failed to give any, or any genuine and realistic, consideration to matters central to the charges. The error is plainly material, as the decisions on those charges might have been different had this error not been made.

Alternatively, if I am wrong in concluding positively that his Honour failed to have regard to these particular responses in AB’s interview, it is at least unclear from his reasons whether he did err in this way. In those circumstances, his Honour’s reasons are inadequate, which amounts to an error of law on the face of the record.

BIAS OR APPREHENDED BIAS

Ground for review

Under cover of Ground 4(e), AB contended that the judge was biased or that a reasonable apprehension of bias attended his decisions.

Submissions

AB’s submissions

AB submitted that bias or an apprehension of bias was demonstrated in three ways:

a) First, he pointed to questions the judge asked of CD, in evidence-in-chief, that went to identification. While identification was not in issue, this questioning, submitted AB, showed that the judge “intervened to fill gaps in the prosecution case”.

b) Secondly, AB submitted that the judge made “absurd findings”.

c) Thirdly, he submitted that his Honour’s reasons “were unfair and inaccurate”. By way of illustration, AB pointed to some of the findings and reasons challenged under other grounds, as well as the judge’s failure to refer to other evidence that, in his submission, showed CD to lack credibility and reliability. (These findings and reasons, and AB’s particular criticisms of them, need not be rehearsed again here.)

AB submitted that these matters might cause a lay observer to apprehend that “the judge may not have been entirely impartial”.

While his ground alleged actual bias as well, AB did not appear to put any matters in support of that complaint other than those said to go to apprehended bias.

Director’s submissions

The Director submitted that there was nothing improper in the judge’s questions of CD. Instead of filling gaps in the prosecution case, his Honour appeared simply to be asking questions in order to clarify CD’s evidence about matters that, as the trier of fact, he thought he might have to resolve. The Director also submitted that the impugned findings were reasonably open. There was, in the Director’s submission, no basis for finding either actual bias or apprehended bias.

Discussion

I do not accept that the judge’s questions of CD were designed to fill any perceived gaps in the prosecution case. The parties agreed that it appeared that, at the time he asked the impugned questions, his Honour failed to realise that identification was not in issue. So do I. But, on my reading of the transcript, he did no more than ask a few questions to clarify part of CD’s account about which she appeared to be uncertain.

Further, defence counsel took no objection to these questions. Nor did he make any application for the judge to disqualify himself based on these questions or any others. That AB’s counsel, imbued with the atmosphere of the hearing, took neither course only adds to the view that there was no suggestion of bias and no basis for finding apprehended bias.

In the main, AB’s submissions under this ground appeared to proceed on the premise that, just because the judge made findings or gave reasons that were (or were argued to be) unreasonable or inadequate, bias or apprehended bias was established. But the premise is misplaced. If a judge makes findings or gives reasons that involve, or might involve, error of some kind, that does not, of itself, either establish bias or give rise to a reasonable apprehension of bias. Proof of either contention requires much more than that.

Establishing a claim of apprehended bias requires the party alleging it, first, to identify the factor which it is hypothesised might have caused the decision to be made otherwise than in accordance with its merits and, second, to articulate how that factor might have caused that deviation.[165] AB did not manage to point to any such factor, much less to articulate how it might have led the judge to make his decision otherwise than in accordance with the factual and legal merits of the case. To conclude that a decision is vitiated by apprehended bias on the basis that it is unreasonable, without identifying what it is that is said might have given rise to that bias, would be to speculate.
[165]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345[8] (per Gleeson CJ, McHugh, Gummow and Hayne JJ). See also at 361[72].

Nor am I persuaded that a fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the issues before him. There was nothing in his Honour’s conduct of the case that gave any cause for an apprehension of partiality. Nor, necessarily, do I consider that there is any basis for AB’s claim that the judge was in fact biased.[166] In the result, this ground must be rejected.
[166]A finding of actual bias should not be made other than in exceptional circumstances; cogent evidence is required: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123 (per Wilcox J), 125 & 127 (per Burchett J).

I should say that I think it is a great pity that neither party raised, or that the judge himself did not raise, many of the issues that have featured in the other grounds. For example, had the prosecution case on sexual touching been articulated in an opening, a closing or in discussion, and had s 35B(2) been raised and discussed, I think it is all but inevitable that the judge would have realised that there was no case on sexual touching and then dismissed the sexual assault charges in consequence. Equally, had the prosecution verbally articulated its case on stalking, the uncertainty that has bedevilled the judge’s findings on that charge is unlikely to have occurred.

RELIEF

Application succeeds; findings of guilt and sentence quashed

Given the grounds that I have upheld, AB’s application for judicial review must succeed. I will make an order in the nature of certiorari quashing each finding of guilt and the aggregate sentence imposed.

Submissions on consequential orders on stalking

The parties agreed that, as there was still an arguable case on stalking, it would be appropriate to make an order in the nature of mandamus in respect of the stalking charge, so that it would be remitted to the County Court for rehearing. I also agree.[167]
[167]In remarking that there is still an arguable case on stalking, and in remitting the matter for rehearing, I am not to be taken as suggesting that AB should be found guilty, assuming the evidence were to be the same again. That will be for the judge on a rehearing, if it comes to it. Nor am I to be taken as suggesting that the Director must or should pursue the stalking charge again. Given that the case remaining on stalking is now a good deal weaker than was envisaged in the original charge, and given other relevant matters (including the time that has passed and that this would be a third contested summary hearing at which CD would be required to give evidence), I could well understand that, in the exercise of prosecutorial discretion, the Director might decline to persist with a rehearing. Either way, it will be a matter for the Director.

Submissions on consequential orders on sexual assault

As I understood them, the parties and amici curiae also submitted that, were I satisfied that the evidence before the County Court was incapable of establishing either charge of sexual assault, then there should be no further hearing in respect of those charges. Instead, it was agreed that it would be appropriate to make an order in the nature of prohibition in respect of any such rehearing.

Further orders, if any, on sexual assault charges

For the reasons I have given above, I am satisfied that the evidence was incapable of warranting a finding or conclusion that either instance of touching was sexual. On reflection, however, I am not so sure that prohibition would be an appropriate consequential form of relief.

That said, given that it follows from what I have held that the only order open to the County Court on the sexual assault charges was to dismiss them, I do not think it would be appropriate to remit the matter for rehearing on those charges. Further, I consider that it would be unfair if AB were made to face those charges a third time.

There was no suggestion by the Director on the application in this Court that the prosecution were in any way wrongly denied an opportunity to prosecute the case on the sexual assault charges in the County Court. Nor was there any suggestion that the prosecution should be allowed to run a new case based on fresh or new evidence.

If this were an appeal to the Court of Appeal from the verdicts of a jury (or those of a judge sitting alone) on indictment, the conclusions I have reached on sexual touching would dictate that the appropriate further orders would be to direct verdicts and judgments of acquittal on the charges of sexual assault.[168]
[168]See s 277(1)(b) of the CPA.

Similarly, if this were an appeal from the findings of guilt of a magistrate, on a question of law, to this Court, the appropriate order would be to direct that the sexual assault charges be dismissed.[169]
[169]See s 272(9) of the CPA.

It may seem odd that this Court, on the present application, cannot simply substitute or make orders dismissing the sexual assault charges. But that is the reality. Judicial review is a supervisory jurisdiction. In exercising that jurisdiction, this Court does not have the power to make orders of that type.

It seems that there may be at least four options instead. The first is simply to make no further order.[170] In that event, when the fact that all three findings of guilt have been quashed is coupled with these reasons and the remittal of the stalking charge, but the absence of an equivalent remittal order on the sexual assault charges, it would be a clear signal to all that that is the end of the latter charges. But it would not amount to the dismissals that ought to have been ordered in the County Court.
[170]This was the effect of the orders favoured by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 583[108]-584[109], whereas Heydon J would have ordered that the applications in the Industrial Court be dismissed (at 591-592[125]).

A second option would be in addition to the first. It would be for the Director and Victoria Police to undertake not to prosecute the sexual assault charges any further. This would ensure that AB would not be put in jeopardy of revival of the charges or of any possible findings of guilt or penalty. However, he would still be without orders dismissing the charges.

A third option is to make an order in the nature of prohibition, in line with the submissions of the parties and amici curiae. This would mean that the sexual assault charges could not be prosecuted again. Assuming prohibition is indeed available at law in the present circumstances, about which (despite the submissions of the parties) I am not entirely certain, this would give AB the added comfort that, by order of this Court, the sexual assault charges could not be revived. There would also be these reasons explaining that there was no case on sexual assault. Still, however, there would be no dismissals.

A fourth option may be this. Assuming these orders are available at law, about which I am not certain, this Court could remit the sexual assault charges to the County Court with a direction that they be dismissed, as they should have been in the first place. Presumably, dismissals would be ordered on the sexual assault charges by the County Court at the outset of the remitted proceedings on all three charges, before any evidence were called. If need be, the Director could, in conformity with the remittal, announce that she leads no evidence on the sexual assault charges. Either way, the County Court could then dismiss those charges and commence hearing the stalking charge, if it were still pursued. This option would achieve what the law required originally in the County Court — namely, dismissal of the sexual assault charges.

Further submissions required

In light of the foregoing, and despite the previous submissions of the parties and amici curiae, I will refrain from making an order in the nature of prohibition in respect of the sexual assault charges, at least for the moment. Instead, before finally deciding which further orders, if any, to make on those charges, I wish to receive further submissions from the parties, and amici curiae, on whether the third and fourth options are available at law and, in any event, on the preferable course to take. The Director will be asked whether she and Victoria Police are prepared to give the undertakings spoken of in the second option, and the parties and amici curiae will be asked for submissions on whether that possible course may be appropriate.

AB and counsel are to liaise with my chambers to arrange a date for further oral submissions on these issues or, if an oral hearing is thought unnecessary, the provision of written submissions only.

ORDERS

Proposed orders

While allowing for the possibility that I may make further orders at a later time, I shall make the following orders now:

1) The findings of guilt on Charge 1 (sexual assault), Charge 2 (sexual assault) and Charge 3 (stalking), and the aggregate sentence imposed on those findings of guilt, in the County Court on 29 September 2020, are quashed.

2) The County Court, differently constituted, is directed to rehear and determine Charge 3 (stalking) in accordance with law and this Court’s reasons.

3) The Court will otherwise adjourn this application to hear further submissions on:

a) whether to make, and, if so, the nature and form of, any further orders in respect of Charge 1 (sexual assault) and Charge 2 (sexual assault); and

b) costs.

Costs

As AB was unrepresented in this Court, he did not incur the costs of solicitors or counsel. Nor did he submit that any costs order should be made in his favour. On the other hand, he may have had to pay administrative costs in bringing this application. If so, then I shall also hear the parties on those costs.

AB was, however, legally represented in the County Court and the Magistrates’ Court. Ordinarily, if an accused successfully appealed a conviction from the Magistrates’ Court to the County Court, he or she would receive his or her costs of the appeal, and also those in the Magistrates’ Court. I shall hear the parties on whether I have the power to make orders of that kind in this Court on judicial review and, if I do, whether I should make any such orders or leave their consideration to the County Court upon the remittal of the stalking charge.

This, I think, is also a case in which amici curiae might consider making an application for costs in this Court, if they wish to do so.[171]
[171]See, for example, Madafferi v The Queen [No 2] [2021] VSCA 4.

Any submissions on costs may be made at the same time (or in the same written submissions) as those made on the options for further orders on the sexual assault charges.

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27 July 2022