ATV v Buxton
[2012] TASSC 83
•11 December 2012
[2012] TASSC 83
COURT: SUPREME COURT OF TASMANIA
CITATION: ATV v Buxton [2012] TASSC 83
PARTIES: ATV
v
BUXTON, Colin Henry
BUXTON, Colin Henry
v
ATV
FILE NO/S: 285/2012, 351/2012
DELIVERED ON: 11 December 2012
DELIVERED AT: Launceston
HEARING DATE: 9 November 2012
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Need for error to be shown – Assertion that finding was unsafe and unsatisfactory.
Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446, Dixon v Lusted [2010] TASSC 16, referred to.
Aust Dig Magistrates [270]
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Sufficiency of reasons.
Phillips v Arnold (2009) 19 Tas R 21, referred to.
Aust Dig Magistrates [274]
REPRESENTATION:
Counsel:
Applicant: R J Gilmour
Respondent: Y Prenc
Solicitors:
Applicant: Wright Gilmour
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASSC 83
Number of paragraphs: 62
Serial No 83/2012
File Nos 285/2012
351/2012
ATV v COLIN HENRY BUXTON
COLIN HENRY BUXTON v ATV
REASONS FOR JUDGMENT TENNENT J
11 December 2012
These reasons arise from the hearing of two notices to review relating to proceedings initiated on complaint number 54381/11 by Senior Constable Colin Henry Buxton against a youth whom I will call ATV. Notwithstanding that the notices were not filed by the same party, for the purpose of these reasons, ATV will be referred to as the applicant, and Senior Constable Colin Henry Buxton will be referred to as the respondent.
The applicant was charged on complaint with one count of assault with indecent intent contrary to the Police Offences Act 1935, s35(3). He pleaded not guilty. At the conclusion of a hearing, Magistrate Bartlett reserved her decision. She delivered written reasons for finding the charge proved. The matter was then adjourned for sentence, and a youth justice report was ordered. Shortly prior to the date upon which the sentence was to be dealt with, it became apparent that the youth justice report would not be ready. In an effort to save the costs of an unnecessary appearance, counsel for the applicant sought that the matter be adjourned administratively. The learned magistrate indicated her acceptance of this proposal. However, the police prosecutor concerned did not agree. When the matter came before the court on 26 April 2012, the adjournment foreshadowed was sought and granted, and her Honour made an order for costs against the police.
On 19 April 2012, the applicant filed a notice to review by which he challenged the finding of guilt against him. On 9 May 2012, the respondent filed a notice to review by which he challenged the order for costs made on 26 April 2012.
Background and hearing
The incident, the subject of the complaint against the applicant, was said to have occurred at his home. The complainant and her mother were visiting. While the adults were talking in the house, the applicant and his younger brother went to a garage to work on their scooters. The complainant followed. It was alleged that the applicant indecently assaulted the complainant in the garage by putting his hand down her trousers and into her underpants. The applicant has at all times denied he did what was alleged.
At the hearing, the complainant, her mother, the applicant's mother and a police officer gave evidence. The applicant neither gave nor adduced evidence. Tendered at the hearing were a diagram marked by the complainant, said to show where she had been touched, some Telstra records which purported to be records of interaction between the applicant's mobile phone and the complainant's mobile phone on the day of the relevant incident, and a video recorded interview between police and the applicant.
The complainant was a 12 year old girl. She had some form of mild intellectual disability, although there was no expert evidence at the hearing as to precisely what the nature of the disability was or its impact on the complainant. Her initial interview with police, which occurred eight days after the alleged incident, was video recorded. At the hearing, the prosecutor sought to play the interview as the complainant's evidence-in-chief. Counsel for the applicant objected on the basis that there was a quantity of inadmissible material in the interview which was highly prejudicial to the applicant. There was indeed inadmissible material in the interview and it was highly prejudicial to the applicant. Notwithstanding that, counsel's objection was overruled, and the unedited interview was tendered and played. Counsel for the parties told me that only part of the interview was actually played at the hearing, although the magistrate was given a transcript of it in its entirety. She indicated that she would not take into account inadmissible material, although what she did or did not take into account was not identified.
In her interview, the complainant told police she and her mother were visiting the applicant's home. She and the applicant were talking in the house, and he asked her for her phone number which she gave him. He then went out into the garage. The complainant further said the applicant sent her a text asking her if she wanted to have some fun. She then went to the garage where the applicant and his brother were. The applicant suggested they play hide and seek and told his brother to go and hide. The applicant then went off as well. He came back into the garage, shut both the doors and came up behind the complainant. She said he asked her if she wanted sex and she said no. He asked her why. He then came up and hugged her. He then put his hand "like down, down like in the middle part".
She further told police that then her mother and the applicant's mother came out to the garage, and the applicant's mother said, "Open the door". As she said that, the applicant went outside the other door and then came back in. The complainant then said:
"And from like that night, now then like he asked, he asked me to send pictures to him, like of me tits and that. And I said no."
When questioned further, the complainant gave police her mobile phone number. She also gave them what she said was the applicant's number and said that, while she was at his house that day, he had sent her around ten text messages. She had deleted most of them. Police looked at her phone during the interview. The complainant also told police the applicant did not put his hand between her legs.
The complainant was cross-examined. She told the court that she went to the garage to see what the applicant and his brother were doing, and they were working on their scooters. They had lots of black grease and oil on their hands and she stood and watched them. She disputed it was her idea to play hide and seek. She insisted that the applicant did hug her and put his hand down her pants. She also said she did not get any grease on her. The complainant agreed that the garage door was partly open when she was in there, and that her mother just lifted the door and walked in with the applicant's mother. A number of other matters were put to the complainant in an apparent attempt to show she might have some reason to make up a story about the applicant. However, the complainant held her ground and did not agree with many of the suggestions.
Three days after the alleged incident, a school social worker spoke to the complainant. She did so because she became aware from other children that the complainant was distressed and crying and thought she might be pregnant. The complainant was indeed distressed and crying when the social worker spoke to her. Relevantly, the complainant reported to the social worker about the incident that:
·she had been in a shed with ATV;
·the door was shut and she did not know how to get out;
·ATV had started touching her under her clothes; and
·that the touching was "in the middle", underneath her clothes and between her legs.
Further, apparently because she had heard from other children that this might be so, the social worker asked the complainant if she had received any text messages from ATV. The complainant said she had, and that ATV had asked her to text a photo of her without her clothes on. The complainant then produced her mobile phone and said "he texted me this one". She showed the social worker her phone and the social worker looked at a text. She said the text contained words to the effect of "just your tits please". The text had the name of the sender as "AV" and a phone number. The social worker later gave this detail to police. She identified in cross-examination the phone number she had seen. It should be noted that the phone number seen by the social worker on the phone shown to her by the complainant was not the same one that the complainant gave to police as being that of the applicant and that from which she had received text messages.
The social worker also described the complainant as having significant auditory processing issues which meant that she could not take in a lot of information at one time. You needed to be clear about what you said to her because if she got a lot of information at one time, she would find it quite hard.
No objection was made to any of this evidence.
The social worker spoke to the complainant's mother later the same day, and, it appears, told her what her daughter had reported. The complainant's mother then spoke to her daughter later the same day. The complainant's mother gave no evidence about what it was her daughter actually told her. From that perspective, there was no evidence of complaint to the mother which might have been used, as indeed her Honour purported to do, to support the evidence of the complainant.
As to the events of the relevant day, the complainant's mother told the court that she and the applicant's mother went out to the garage. When they arrived, the roller door was partly up. They opened it and went in. The complainant was standing alone. She was quiet, but did not appear to be distressed. She made no complaint of any untoward behaviour. The applicant entered the shed through the side door and said he had been washing his hands. The complainant's mother was questioned about whether she had seen any grease on the applicant's hands. She said she did not look. The applicant's mother generally said much the same about what she saw. She said the applicant said he had just come from washing his hands. He and his brother had been working on their scooters and had grease on their hands. She had seen that.
The next witness actually called at the hearing was the applicant's 11 year old brother who had been with him on the day. After some questions were directed to him by the magistrate, and the magistrate had indicated that the boy did not seem to have "complete knowledge here as to what the taking of an oath means ...", the prosecutor elected not to call him. No objection to this course of action was made by counsel for the applicant.
The final witness was Constable Johnson, who was the officer who interviewed both the complainant and the applicant. The day after she interviewed the applicant, she went to the applicant's house and checked his mobile phone. Neither the complainant's phone number nor any messages were found. She then said she conducted what she described as a CCR enquiry (she did not identify with whom this enquiry was made) to see:
"… what calls had been made from – and messages from A's phone for the relevant period and I also conducted a subscriber check to see who the phone was registered to and then I later requested a report for court purposes with those details."
She then said that, without looking at "the records", she could not be sure how many messages were sent from the applicant to the complainant, but there was more than one. The witness was then given a document which I infer was the Telstra records subsequently tendered. She was permitted to then give evidence by reference to the document, despite a number of objections from counsel for the applicant. Despite the somewhat confusing examination by the prosecutor, and the dubious basis upon which much of Constable Johnson's evidence was given about text messages and phone numbers, it is clear from the evidence as a whole that:
· from the complainant's evidence and Constable Johnson's evidence that Constable Johnson had the complainant's mobile phone number and that it was "x" [I have not included the actual number in these reasons but it appears at AB100];
· from the social worker's evidence that she saw on the complainant's phone a telephone number which the complainant said was the applicant's which was "y" [again I have not included the actual number in these reasons but it appears at AB37];
· from the social worker that she saw a text on the complainant's phone which was shown as having been sent from the number said to be the applicant's, and that text talked about photos of "tits";
· from Constable Johnson's evidence that she checked the applicant's mobile phone, and I infer obtained the number of that phone. There was no evidence it was or was not the same number as that seen by the school social worker;
· during the course of her interview with the complainant, Constable Johnson went through the complainant's message history on her phone with her, and that the complainant told Constable Johnson about one message she said she received from the applicant which said, "Well, then one of your tits please". This evidently followed others in which he was said to have asked for photos.
There was no evidence from any representative from Telstra as to the source of the records produced to the Court and what they meant. While the two telephone numbers identified in the document tendered matched those said to be those of the applicant and the complainant as set out above, neither was registered to them and there was no evidence as to who the persons were who were named in the tendered document as subscribers of the phone numbers which appeared.
The interview between police and the applicant was tendered and played to the court. The applicant was 15 years old at the time of the alleged incident and the hearing. The interview contained inadmissible material which was prejudicial to the applicant and it was not edited. A transcript of the entirety of the interview was provided to the learned magistrate. However, I was told again that the interview was only played to a certain point. What was played still contained inadmissible material. Throughout his interview, the applicant denied any wrongdoing although made some admissions to sending text messages to the complainant.
Applicant's notice to review
Ground 1
Ground 1 of the applicant's notice to review was in the following terms:
"The learned Magistrate erred in law and in fact in not giving any or any sufficient weight to the evidence of the Applicant by way of his record of interview and the finding that the Applicant was uncooperative therein was unsupported by the evidence and led the learned Magistrate into error."
The only reference her Honour made to the content of the applicant's interview was in par[9] of her reasons where she said that:
"9 During that interview, A denied the allegations being put to him by police and he became quite upset and angry. This occurred after some very close and persistent questioning by the police. In fact, I formed the view that A's responses were not merely denials but there was a lack of co-operation by him in the questioning process, and on many occasions he failed to respond adequately, if at all. At one stage the interview was suspended for A to compose himself."
There are two aspects to this ground of review on its face. The first is an assertion that the learned magistrate gave no or insufficient weight to what the applicant said in his interview. The second is an assertion that the finding that the applicant was unco-operative in his interview was unsupported by the contents of the interview. The submissions of counsel, however, also canvassed an assertion that the learned magistrate had failed to give adequate reasons for having ultimately preferred the evidence of the complainant over that of the applicant.
In dealing with this ground, counsel for the applicant relied heavily on the decision of the Full Court in Phillips v Arnold [1]. In that case, the magistrate, whose decision was under review, had said he preferred the evidence of police witnesses to that of the accused but gave no reasons as to why. That asserted failure to state reasons was challenged on review. The position of the accused's counsel was that, in a case in which the criminal standard of proof applied and the outcome depended entirely on credit, merely expressing a preference for the evidence of one party's witness to that of the other party's witness should usually be regarded as inadequate in point of law. Crawford CJ dealt with the issues at pars[56] to [68] of his reasons and concluded that what the magistrate did in that case did amount to an error.
[1] (2009) 19 Tas R 21
With respect, the issue with which the Full Court was dealing in Phillips v Arnold is not that here. There is no suggestion in the present case that the learned magistrate simply expressed a preference for the evidence of prosecution witnesses over that of the applicant without reasons. In this case, the complaint is that the learned magistrate gave inadequate reasons for "rejecting or otherwise dismissing the evidence of the Applicant" in his interview.
While the learned magistrate did not expressly state that she rejected or otherwise dismissed the evidence of the applicant, it may be inferred from the ultimate finding of guilt that she did not accept the applicant's denials in his interview. Could it be said she did not give adequate reasons for her conclusion? In my view, it could not. The learned magistrate did not simply state her finding of guilt without reasons. She evaluated the applicant's evidence at par[9] of her reasons, and she evaluated the evidence of the other witnesses during the course of her reasons. It is clear from her evaluation of the witnesses just how she came to conclude that she was satisfied beyond reasonable doubt as to guilt.
As to the actual ground of review and the two aspects of it I identified on its face, some comment should be made about the applicant's interview. The incident the subject of the complaint was said to have occurred on 10 July 2011. The applicant was then 15 years old. He was interviewed by Constable Johnson and another officer on 1 August 2011. He was accompanied by a lady who described herself as his "step auntie". At the hearing of this review, I was provided with a copy of the transcript of the interview as it was given to the learned magistrate.
The applicant maintained denials of the allegations put to him throughout the interview. From early on in the interview, the police made it clear they did not believe what the applicant was telling them. Words to that effect were said a number of times. The interviewing style appeared designed to confuse the applicant. Eventually, the applicant began crying. He was clearly distressed and he also began shouting. The applicant was asked to tell police why the complainant would make up her allegation and they told him they did not think she had. The applicant was then asked if he sent text messages to the complainant while he was in the garage. He said no. He was then told that the police knew for a fact that he had, because they had phone records, and accused him of lying. No phone records were produced to the applicant in the interview, and there was no evidence at the hearing that any police officer had extracted details of text messages from the complainant's phone. The only evidence of any sort of records was that of Constable Johnson through whom some records, which purported to be Telstra records, were tendered. Those records had a date which post-dated the interview with the applicant. It is open to draw an inference that the police at interview were not being entirely truthful with the applicant and told him things in order to gain admissions. That their actions did gain admissions is no excuse for such behaviour.
The applicant continued to cry in the interview. His step-aunt told him to talk, and then that they were not going anywhere until he did. It was at that point the interview was suspended to allow the applicant to compose himself. After the break in the interview, the applicant admitted he had sent text messages to the complainant and that she had sent some to him. He was asked if he sent one asking for pictures of her breasts or tits. He denied that. He was then told they would sit there all night if they had to. By this time it was well after 9pm. The applicant later admitted asking the complainant for a photograph of her. When he would not apparently answer other questions, Constable Johnson told the applicant that the process was not about getting him into trouble and that they wanted to help him. With respect, that in my view was a complete untruth on the part of the officer. She was clearly looking for admissions to support a case against the applicant. As to his mobile phone, the applicant did not have it with him during the interview and was unable to tell police the number. He said his phone was registered in either his mother's name or that of "Phil".
The manner adopted by Constable Johnson in this interview was, in my view, wholly inappropriate for a 15 year old boy. There were continued assertions of not believing anything, and a direct accusation of lying. At the end, there was an attempt to induce him to say what she wanted by suggesting she wanted to help him. It was clear that the interviewing officer had formed a view adverse to the applicant and was intent on obtaining admissions to support that view.
Notwithstanding my comments about the way in which the interview was conducted, no attempt was made to either have it excluded or to challenge Constable Johnson in cross-examination about the manner in which she conducted the interview. It was perhaps hoped that its shortcomings would be obvious to the learned magistrate and that it would, as a consequence, be given little weight. In any event, it must be noted that the learned magistrate correctly identified that the applicant had denied the allegations in his interview. In fact, he did so a number of times. She also correctly identified that the applicant became upset and angry. My view is that the questioning of the applicant went beyond "close and persistent" as the learned magistrate characterised it. However, the learned magistrate's characterisation was open on the evidence.
As to the views expressed by the learned magistrate in the penultimate sentence of par[9], which I infer have led counsel to the assertion contained in the ground of review, it was, in my view, open to the learned magistrate from what she saw and heard. The applicant was unco-operative. That he did not at times answer questions should not lead to an adverse finding against him. However, the fact that he did this, and then shifted ground and made admissions after renewed questioning, could clearly lead to a conclusion he was not co-operating.
As to the issue of the weight to be given to what the applicant said in his interview, that was entirely a matter for the learned magistrate. She was entitled, if she determined it was appropriate, to reject what the applicant said. This aspect of the review seems to be a complaint to the effect that, the learned magistrate did not accept the applicant's denials, and therefore she gave no or insufficient weight to what he said. The ground of review cannot be sustained on that basis. The magistrate watched the interview, and clearly considered it given her evaluation of it at par[9] of her reasons.
This ground of review should fail.
Grounds 2 and 4
Given that they deal with related matters, it is convenient to deal with grounds 2 and 4 together. As pursued they were in the following terms:
"Ground 2
The learned Magistrate erred in law and in fact in accepting Hearsay evidence regarding text messages without any admissible evidence of a primary source and failed to provide any or any adequate reasons for doing so.
Ground 4
The learned Magistrate erred in law and in fact in admitting Telstra records into evidence where there was no evidence of a primary source as to the identity of the phone numbers."
Ground 2 related to evidence given by the complainant, the school social worker and Constable Johnson about text messages said to have been received by the complainant from the applicant. Ground 4 related to some records tendered through Constable Johnson which purported to be records of times and dates (not content) of text messages sent by the applicant to the complainant.
As to the records tendered, they were admitted over an objection from counsel for the applicant. He submitted before the learned magistrate that the evidence of text messages was irrelevant. The police prosecutor then submitted that the material was relevant because it went to the credibility of the applicant. She then went on to say that it was also relevant to the events of the day when this incident was said to have occurred. The material was admitted.
The learned magistrate dealt with the issue of text messages at par[15] of her reasons. She said:
"There was in addition, evidence given regarding text messages said to have been received by [the complainant] from [A] in the days after the indecent assault. Those text messages were inappropriate and requested photos of [the complainant]. There is no charge arising as a consequence of these messages. I note [A] denied sending them and became upset in the interview when questioned about them. I am satisfied on the evidence of [the complainant] and also [the school social worker], who had shown some of them that were sent by [A] to [the complainant]. However, that conclusion does not affect my conclusions regarding the charge of indecent assault."
Her Honour did not identify the evidence which resulted in her finding, but indicated the finding did not affect the conclusion as to guilt, it is inferred, she had reached already having regard to other evidence. Even, therefore, if these grounds of review are made out, the outcome it must be said should have no impact on the success or otherwise of the notice to review. It was not argued that, despite what she said, it was somehow apparent from her Honour's reasons that she had taken the evidence into account adversely to the applicant. Nevertheless, I will deal with the grounds.
In relation to ground 2, counsel for the applicant submitted that evidence of text messages could not in any way, even if accepted, rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue, and should have been ruled inadmissible. The evidence further had no purpose other than to undermine the credibility of the applicant, and was thus caught by the Evidence Act 2001, s102. The submissions also drew in an argument that the learned magistrate did not give adequate reasons for admitting some of this evidence, and gave no reasons for her finding that the applicant sent text messages which were inappropriate.
The first point which should be made about the evidence of both the complainant and the social worker as to text messages is that no objection was made to the impugned evidence at the hearing. With respect, I am not persuaded there could have been any valid objection. The complainant gave evidence of having received text messages on her phone from the applicant. She identified one message in particular. She showed that message to the social worker and Constable Johnson. Her evidence was that it referred to a request for a photograph of her breasts. The social worker saw the same message when she was shown the phone and identified it as coming from a number under the identity "AV". While it appears that the telephone number which the complainant initially gave to police as being that of the applicant was not his, there was evidence she had numbers for two people with the same first name. There was no suggestion to the complainant that the owners of both numbers were identified as "AV" in her phone. The inference was clearly open that AV was the applicant.
Counsel for the applicant submitted that, as a consequence of the complainant's evidence about text messages, there was significant doubt regarding the source of the messages such that the complainant may have been mistaken in her assertions as to the source of them. He submitted that as a consequence the evidence from the complainant was inadmissible. In support of this contention counsel referred to the Evidence Act, ss59 and 62, and some remarks made by Hamilton J at par[4] in the matter of Citibank Ltd v Liu; ABN Amro Bank NV v Liu[2]. The references to the Act are to sections dealing with hearsay evidence. I do not pause to set them out nor to deal with the Citibank case. With respect, counsel has confused concepts of admissibility and weight.
[2] [2003] NSWSC 69
I accept that the evidence of the complainant in relation to text messages was confusing, and that there were inconsistencies within it. However, that did not in itself make it inadmissible, and, depending on other evidence, the weight which could be attached to it by the learned magistrate was a matter for her.
The social worker's evidence was of what she was told by the complainant and what she saw on the phone.
It was open to the learned magistrate from this evidence to conclude that the applicant had sent text messages to the complainant and that at least the one, identified as being a request for a picture of breasts, was inappropriate. The only further issue may be relevance. However this was a charge of a sexual nature. The nature of the text about breasts indicated a sexual interest by the applicant in the complainant and might have had some relevance in that regard. Ground 2 should therefore fail.
As to ground 4, this related to the Telstra records. There is no dispute that the records were not admitted by consent, and there was no evidence as to where they came from save that Constable Johnson appears to have come into possession of them as a result of an enquiry. There was no evidence as to what they showed, save from the police officer. They referred to two telephone numbers which were registered to two people who were never identified. They should not in my view have been admitted into evidence, nor should Constable Johnson have been permitted to give the evidence she did by reference to them.
Ground 4 should in my view succeed.
Ground 3
This ground as pursued was in the following terms:
"The learned Magistrate erred in law and in fact in that on the whole of the evidence she could not have found the charges proved beyond a reasonable doubt such that the decision of the Court is unsafe and unsatisfactory."
To support his assertion that this was a valid ground of review, counsel for the applicant referred in his written submissions to reasons for decision of Green CJ in Kelly v O'Sullivan[3]. His Honour said:
"12 I hold that if a judge who is hearing a notice to review a magistrate's determination of guilt is not satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt that the defendant was guilty then it has jurisdiction to review the order under the Justices Act 1959 because to find a charge proved when a reasonable doubt ought to have been entertained is an error within the meaning of Justices Act 1959, s107. It follows that this Court cannot say a priori that a ground of a notice to review which alleges that an order made by a magistrate should be set aside because it is based upon a decision which is unsafe or unsatisfactory is not a valid ground. However it will only be a valid ground if in fact it is based upon an allegation that the decision is unsafe and unsatisfactory because the magistrate was in error because he was satisfied that a charge was proved when he ought to have entertained a reasonable doubt. Notwithstanding the terms in which it is drafted that was in fact the basis upon which ground 1 of the notice to review was argued before this Court and I therefore hold that it was a valid ground."
[3] [1995] TASSC 72 at par[12]; (1995) 4 Tas R 446 at 451
The issue of whether the ground was a proper one was referred to again in Phillips v Arnold. Crawford CJ was a member of the Court which decided that matter, and was also a member of the Court in Kelly's case. He refers to both cases in another decision which involved a review of a magistrate's decision pursuant to the Justices Act 1959, s107. That was Dixon v Lusted[4]. His Honour said at pars[16] to [18]:
"16 For a case such as this, the Justices Act, s107(4)(a), requires that a ground must allege an error or mistake on the part of the magistrate or justices on a matter or question of fact alone or of law alone, or of both fact and law. An assertion of a miscarriage of justice alone is not a proper ground of review, for it does not assert an error or mistake of the kind required by the section. However, the ground in this case goes on to assert that the conviction was unsafe and unsatisfactory because of an error in fact that was made by the learned magistrate. In Kelly v O'Sullivan (1995) 4 Tas R 446 at 451, Green CJ held that unsafe and unsatisfactory is only a valid ground if it is based upon an allegation that the magistrate was in error in finding a charge proved when he ought to have entertained a reasonable doubt. At 460, I held that if a finding of guilt is unsafe and unsatisfactory in the sense that it is unreasonable or cannot be supported having regard to the evidence to the extent that, although there might have been evidence upon which the finding of guilt could have been based, it would be dangerous in all the circumstances to allow the finding to stand, then an error or mistake on the part of the magistrate on a matter or question of fact has occurred, and a ground asserting it was a valid one.
17 Both Green CJ and I were concerned that error on the part of the magistrate had to be shown. That requirement was confirmed by Hayne J, with whom Crennan J agreed, when refusing special leave to appeal in Hajdu v Brown [2007] HCATrans 245. His Honour made the point that the test in M v R (1994) 181 CLR 487 for a miscarriage of justice by reason of an unsafe, unsatisfactory or unreasonable jury verdict is not a test that is raised by the review provisions of the Justices Act. The matter was mentioned by the Full Court in Phillips v Arnold [2009] TASSC 43 at pars41 – 46.
18 I propose to approach the ground of review in this case upon the traditional basis, which I will state. Section 107(4)(a) requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. If the finding of guilt was not reasonably open on the evidence then the motion should be upheld. If, on the other hand, the magistrate might, as a reasonable person, have come to the finding, then the motion should be dismissed. The onus is on the applicant to establish that the finding was not reasonably open."
I will approach the ground raised by counsel for the applicant in the same manner as that identified by Crawford CJ.
[4] [2010] TASSC 16
For the purpose of this case, the learned magistrate had to be satisfied beyond reasonable doubt on the basis of admissible evidence before her that the applicant touched the complainant in some way and that the touching was indecent. There can be no dispute that, if the learned magistrate accepted beyond reasonable doubt that the applicant put his hand inside the complainant's pants and touched her in the area she described, there would have been an assault with indecent intent. The learned magistrate said she was so satisfied. Was that finding reasonably open on the evidence?
In her evidence in the proceedings, the complainant said the applicant put his hand down her pants. She used the phrase "in the middle" and she marked a diagram indicating the general area. She did not say that the applicant touched her between the legs. There were clearly inconsistencies between what was put to the court and what the complainant was said to have told the school social worker, in that the evidence of that person was that the complainant had told her she had been touched between the legs. However that worker also used the phrase "in the middle", the same phrase used by the complainant later to police.
Counsel submitted that this discrepancy should have been enough to lead the learned magistrate to entertain a reasonable doubt. Instead, the learned magistrate had concluded that the complainant's version of the incident as reported by the social worker was sufficiently consistent with that of the complainant to allow her to conclude that the complainant's account was reliable.
A second discrepancy pointed to by counsel for the applicant was one again between that of the evidence of the complainant and that of the social worker. The social worker said she gained the impression from the complainant that she had been locked in the shed. The complainant agreed however in her evidence that she was not, and that was consistent with the evidence of the complainant's mother, the applicant's mother and the applicant.
Counsel also submitted that the learned magistrate appeared not to have considered another important aspect of the evidence. There is no dispute the magistrate made no reference to it. This was the evidence about the applicant having had grease on his hands and evidence that the complainant had none on her. The complainant told the court the applicant had been working on scooters and had black grease on his hands. The applicant's mother said the applicant said he had been to wash his hands and that he had had grease on them. The question posed by counsel was that the applicant, had he touched the complainant as alleged, would have transferred grease to her and there was no evidence of that. This evidence should have given rise to some doubt.
Counsel also referred to the finding of the learned magistrate that evidence of complaint to the complainant's mother supported the complainant's evidence. As I have already said in par[13], there was no evidence from the complainant's mother as to the nature of whatever complaint was said to have been made. In those circumstances, evidence of complaint to the mother could not support the finding made by the learned magistrate.
It must be accepted that there were indeed discrepancies between the evidence of the complainant and the social worker, that the learned magistrate made no reference at all to the issue of grease on the applicant's hands, and that her Honour's finding to the effect that complaint to the complainant's mother supported the complainant's evidence was erroneous. The Court is still required to consider whether, on the evidence before the learned magistrate, her finding of guilt was reasonably open.
The learned magistrate had before her the following:
·The complainant's undisputed evidence which placed the complainant and the applicant in the garage with the roller door partly down at the time the assault is said to have occurred;
·The complainant's evidence, supported by that of the social worker, that she received text messages from the applicant, at least one of which had sexual connotations (the applicant asking the complainant for a photograph of her breasts);
·The applicant's admission at interview that he sent text messages to the complainant, although not in respect of the one about breasts;
·The complainant's evidence that the applicant hugged her, put his hand down the front of her pants and touched her "in the middle", not between her legs;
·The complainant's evidence under cross-examination, which the learned magistrate had the opportunity to see first-hand, in which the complainant maintained her allegation and disputed a number of propositions put to her by counsel designed to undermine her credit;
·The complainant's evidence in which she told police that the applicant ran off when he heard his mother and her mother coming to the garage;
·Evidence of complaint from a distressed and crying complainant to the school social worker three days after the event, in which the complainant described being touched "in the middle", as well as inconsistent evidence of being touched between the legs;
·Evidence of the complainant's mother that when she came upon the complainant shortly after when the incident is said to have occurred, her daughter was quieter than was usual;
·Evidence the complainant had a mild intellectual disability;
·Evidence in the form of the applicant's interview during which he repeatedly denied he touched the complainant;
·The interview generally conducted by police with the applicant which, despite the denials, contained contradictions;
·Evidence from the applicant that he had grease on his hands and that when his mother and the complainant's mother came into the garage he was in a laundry washing his hands;
·Evidence from the applicant's mother corroborating the applicant's evidence to the effect he had grease on his hands and had been washing them.
While there were matters, including the applicant's denials, which, if accepted, may have caused the learned magistrate to entertain a doubt about the applicant's guilt, it was open to the learned magistrate not to accept those matters. I am satisfied, having regard to the factors I have identified, that the finding of guilt by the learned magistrate has not been shown by the applicant to be one which was not reasonably open. This ground of review should fail.
Outcome of applicant's notice to review
While one of the grounds of review has succeeded, I am satisfied that no substantial miscarriage of justice has been caused by the error. In the circumstances, the review is dismissed.
Respondent's notice to review
By this ground, the respondent asserts that the learned magistrate erred in fact and/or in law in ordering the respondent to pay the applicant's costs of an adjournment of proceedings on 26 April 2012. There is no dispute on the facts that:
·The applicant was found guilty of one count of assault with indecent intent on 29 March 2012 (he was not convicted as asserted by counsel for the respondent in his written submissions);
·The matter was adjourned for sentence to 26 April 2012 and a pre-sentence report was ordered;
·It became known to both the applicant and the respondent prior to 26 April 2012 that that report would not be ready for that date;
·The applicant sought the consent of the respondent to an administrative adjournment of the matter;
·The respondent did not agree to that;
·When the matter came on before the learned magistrate on 26 April, an adjournment was sought by the applicant and granted;
·The applicant had, prior to 26 April, filed a notice to review the finding of guilt.
There is also no dispute that:
·the matter could have been administratively adjourned;
·the notice to review of the applicant did not operate as a stay;
·the learned magistrate had power to make the costs order she did, and
·she had a wide discretion as to the question of costs.
The respondent accepted in his written submissions that the learned magistrate's discretion as to costs was a broad one. He asserted however that the exercise of her discretion had miscarried. This was a case where the respondent simply did not consent to the adjournment sought, there was no allegation of particular case mismanagement, and the factors pertaining to the adjournment request were outside the respondent's control.
I have read the detailed submissions of counsel for the respondent on this issue. I am not satisfied the learned magistrate' discretion miscarried. I accept that the fact a notice to review had been filed was not a matter which should have impacted upon her Honour's decision to either adjourn or order costs. However, what cannot be ignored is:
·A pre-sentence report had been ordered;
·There is no suggestion the sentencing process would proceed absent that report;
·The respondent knew the report would not be available for 26 April;
·The respondent was asked prior to that date to agree to adjourn the matter administratively;
·He did not do so;
·The matter had to be adjourned when it came before the learned magistrate on 26 April. There was no suggestion any other course of action was more appropriate;
·The applicant and his counsel were obliged to appear that day;
·The appearance was unnecessary and could have been avoided; and
·There has been no particular reason given, save the respondent seemed to have thought it was inappropriate, why the respondent could not have agreed to the applicant's request.
I am not satisfied the respondent has demonstrated any error on the part of the learned magistrate. This review is dismissed.