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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Paulet

Details

AGLC: AB v Paulet [2022] VSC 414
Case: [2022] VSC 414
Decision Date: 27 July 2022

CaseChat Overview and Summary

The appeal in AB v Paulet before the County Court of Victoria concerns the conviction of the appellant, AB, on two counts of sexual assault and one count of stalking against the respondent, CD. The appellant appealed the Magistrates' Court conviction to the County Court, which heard the appeal de novo and upheld the conviction. The appellant sought judicial review of the County Court's decision, arguing that the findings of guilt were vitiated by jurisdictional error or error of law on the face of the record.

The central issues in this case were whether the findings of guilt were unreasonable, whether the alleged sexual touchings were indeed sexual in nature, and whether the County Court judge applied the correct legal tests in reaching the conclusions. The court also needed to determine if the judge had constructively failed to exercise jurisdiction by not considering certain matters and if the reasons provided were adequate. The appellant contested the judge's findings on the reasonable belief in consent and the credibility of CD as a witness. Additionally, the appellant challenged the adverse findings about his conduct during the police interview and questioned whether the judge's findings and reasons displayed bias or apprehended bias.

The court examined the evidence and arguments presented, including the assistance from amici curiae on the interpretation of sexual touching. It found that the County Court judge had not constructively failed to exercise jurisdiction and that the reasons provided were adequate. The court concluded that the findings of guilt were not unreasonable and that the judge had applied the correct legal tests. The court quashed the findings of guilt on the sexual assault charges due to the legal errors identified but remitted the stalking charge to the County Court for rehearing, as there remained an arguable case on the stalking charge. The court invited further submissions on the appropriate relief for the sexual assault charges.

In light of the findings, the court issued a writ of certiorari to quash the findings of guilt on the sexual assault charges and a writ of mandamus to remit the stalking charge to the County Court. The court will consider further submissions on the appropriate relief for the sexual assault charges.

Orders