Batzavalis v Police - [2015] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BATZAVALIS v POLICE
[2015] SASC 125
Judgment of The Honourable Auxiliary Justice Duggan
21 August 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - INDECENT OR OBSCENE LANGUAGE OR BEHAVIOUR AND PROFANE OR OBJECTIONABLE LANGUAGE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
This is an appeal against conviction on a charge of behaving in an indecent manner in a place other than a public place.
The principal ground of appeal was that the appellant’s counsel failed to adduce evidence of the appellant’s good character at trial. Two additional grounds alleged flaws in the Magistrate’s reasoning process in failing to adequately assess the evidence given by the appellant and a failure to exclude a passage of questioning in the appellant’s police interview.
Held (dismissing the appeal):
1.       Potential character evidence would have been of some relevance to both credibility and propensity. However the evidence of HH and MC was rightly regarded as cogent, and there is not a significant possibility that the available character evidence would have resulted in a different outcome. There was no miscarriage of justice.
2.       It was unnecessary for the Magistrate to make specific reference to the demeanour of the appellant in the witness box. The assessment of the appellant’s evidence was adequate.
3.       While the impugned questions should not have been asked by the interviewing officer, the Magistrate did not draw any adverse inference from them. No miscarriage of justice resulted from the reference to them.
Evidence Act 1929 (SA) s 34P, referred to.
TKWJ v R (2002) 212 CLR 124; Melbourne v R (1999) 198 CLR 1; Zhang v Police [2015] SASC 121; Nudd v R (2006) 225 ALR 161; Palmer v R (1998) 193 CLR 1, discussed.

BATZAVALIS v POLICE
[2015] SASC 125
Magistrates Appeal: Criminal
DUGGAN AJ.

The appellant has appealed against his conviction on a charge of behaving in an indecent manner in a place other than a public place. The complaint alleged that the offence took place on 15 March 2014 at Salisbury East.
According to the prosecution case, the appellant went to the home of MC who had advertised her iPhone for sale on the website Gumtree. MC said in evidence that the appellant followed her inside her house while she was retrieving the iPhone and that he exposed his penis in her presence while he was inside the house.
The principal argument advanced on appeal was that the appellant’s counsel failed to adduce evidence of the appellant’s good character at the trial. It is claimed that this was a material irregularity which resulted in a miscarriage of justice. Further grounds of appeal allege flaws in the reasoning process of the Magistrate and a failure to exclude a passage of questioning in the police interview of the appellant.
MC was 31 years of age at the time of giving evidence. She said a man contacted her by telephone enquiring about the iPhone and they arranged to meet at the Royal Adelaide Hospital. The meeting did not eventuate as the man explained that he was unable to attend. However, he contacted MC about two weeks later and an arrangement was made for him to come to her house. There is no dispute that the man was the appellant.
When he arrived, the appellant, who identified himself as Theo, spoke to MC at the front door. She said in evidence that she went inside the house to retrieve the iPhone intending to go back to the front door of the house. However, she said the appellant followed her into the house and sat at the dining room table while MC showed him the iPhone. She said she then realised the phone had lost its charge and she went into another room to get a charger. She said when she returned the appellant had changed his position on the chair so that one leg was over the corner of the chair and the other in front of the chair and she could see the man’s erect and exposed penis.
MC said that the appellant was wearing a T-shirt and a pair of shorts. She said his shorts were very high, almost up to his groin. His penis was “partly coming out of the shorts”. She said his penis was quite long, 15 to 20 cm in length, and was lying on the dining room chair. MC continued to speak to the appellant about the phone, which he agreed to purchase. Eventually she said to him, “You have to get out of my house. You have to go”. She said she could still see his erect penis as he was leaving the house. Prior to this, he had paid for the phone and MC said in evidence that she told him, “I’ve had enough. You have paid for the phone. You need to get out of my house.”
MC said she reported the matter to the police the following day.
The appellant was questioned about the incident by the police on 14 June 2014. He agreed that he had gone to the complainant’s house in relation to the purchase of the iPhone. He said he was invited into the house. He denied deliberately exposing his penis and said that if it was exposed he was unaware of it. He explained that at about this time he was being treated for a fungal rash to his groin and he was not wearing underpants.
The Magistrate admitted evidence of an earlier incident involving the appellant. The evidence was tendered pursuant to s 34P of the Evidence Act 1929 (SA), and admitted by reason of its tendency to rebut any innocent explanation by way of accidental exposure in relation to the charged incident.
According to the prosecution case, on 8 November 2013 the appellant drove in to a drive-in service station where takeaway food was sold. A driveway attendant, HH, gave evidence that she was on duty at the service station at the relevant time. She was 20 years of age at the time of the incident. She said that at about 10 am she walked to the appellant’s car to ask for his order. She said she noticed that the appellant was wearing a T-shirt and a pair of black running shorts. The window of his vehicle was down. According to the witness, she noticed that the appellant’s penis was fully exposed out of the left side of his shorts. She said she could also see one of his testicles. She said his penis was semi-erect and “very clearly displayed”. The left leg hole of the shorts was higher than the leg hole on the right side. The witness said it appeared that there had been a deliberate attempt to make one leg of the shorts higher than the other.
HH said that she continued serving the appellant who asked her for a packet of cigarettes. When she handed him the portable EFTPOS machine he placed it in his lap in a manner which indicted to her that he was attempting to draw attention to his penis which was still visible. She said his penis was fully exposed and semi-erect. He then produced his wallet to retrieve his credit card and drew the card across the lower part of his body. As he as doing so, he was looking directly at HH with a grin on his face.
HH said that she decided the best approach was to ignore the incident and then take some action after the appellant had left. She said that the appellant’s name appeared on the docket and she wrote his name down on a piece of paper, together with the registration number of his vehicle. She then provided these details to her manager. The police were called and arrived at the service station shortly after the appellant left.
The appellant gave evidence at the trial before the Magistrate.
He denied deliberately exposing his penis on either of the occasions referred to in the evidence. He said he recalled an occasion when he went to the drive-in service station to buy a packet of cigarettes. He said that at about this time he was suffering from a rash in the region of his groin and that he had been prescribed cream for it. He said he had been to the doctor not long before this incident and the doctor recommended continued treatment with the cream. According to his evidence, he was wearing black soccer shorts. He had told the police in the interview that he was not wearing underpants because he had been to see the doctor. He denied pulling out the leg of his shorts and exposing his penis to the person who served him. He said that his wallet was not in his lap when he retrieved his credit card from it. The appellant said that as he left the service station he and the woman who served him wished each other a good day.
The appellant was then asked about the events on the day of the charged incident. He referred to the previous arrangement to meet the complainant in the city and the subsequent arrangement to visit her at her house. He said that at this stage his rash had become worse and he was again wearing soccer shorts. He said he was not wearing underwear because he had applied ointment to the rash on that morning.
The appellant said that he was invited into the house by the complainant when he arrived. He said the iPhone was on a table and he and the complainant sat down at the table to discuss it. He asked if it could be charged and the complainant went into another room to fetch a charger. He said she discussed with him the way in which he could transfer data from one phone to the other. They discussed the price for the phone and he paid for it.
According to the appellant, the complainant explained to him at an early stage in the conversation that she had only 15 minutes before going to her mother’s house. He said at one stage he stood up and said, “[M], you need to go” and she said, “You need to go”. At that stage he left. He denied exposing his penis to the complainant. In the course of his evidence he was cross‑examined as follows:
QI put it to you that you entered the house to make a transaction and as the lady went to get a charger for you that you sat down and sat in a way where as she returned your penis was exposed. What do you say to that.
AAbsolutely not.
QI put it to you that you further ensured your shorts were pulled up so your penis was exposed.
AAbsolutely not. I was, I was very mindful.
QYou were very mindful, however, again when interviewed you didn’t deny exposure to police, did you.
AI didn’t deny it, no. However, when I had a closer look at the allegation I realised it couldn’t be possible.
QWhen asked by police in the record of interview you didn’t deny that you exposed your penis a second time, did you.
AI denied I exposed it, yes. I’m saying it wasn’t deliberate. They were saying ‘Did you do it deliberately.’ I said ‘No.’ If it was exposed again it was an accident.
QSo you are saying it’s possible it was exposed but it was an accident.
AIt’s possible. Very, very unlikely.
The appellant gave evidence that when his penis was erect it had an obvious bend in it to the left. His wife also gave evidence to that effect. HH and MC said they did not notice this aspect.
In his reasons for decision, the Magistrate summarised the evidence of the witnesses for the prosecution and the defence. No criticism is made as to the accuracy of that summary.
The Magistrate then embarked upon an assessment of the evidence:
I have considered the whole of the evidence. I have considered the evidence of [HH] and [MC] individually. I formed a favourable impression of each of them as to their honesty and reliability and accuracy. Each impressed me as genuine, prepared to make concession and measured in their evidence. Neither was overeager to give evidence and did not overstate or embellish their evidence. I had confidence in each as an accurate and reliable historian of events.
I have considered and taken into account the criticisms made by [counsel for the appellant appearing at trial] in assessing their evidence. [counsel for the appellant appearing at trial] has argued in the case of each of [HH] and [MC] that the fact that neither of the women described the defendant’s penis as having a left-handed crookedness, the fact that neither had any evident skin condition or applied medication, as raising a doubt about the accuracy of their observations and in particular, the defendant’s penis was semi‑erect in the case of [HH] or erect in the case of [MC]. I have considered these submissions.
It is not challenged that the defendant’s penis does have a distinct crookedness to the left, when erect, although, it is not clear under what conditions that observation was made by Ms Batzavalis. Neither is it contested that the defendant had been suffering from a skin condition in his genital region.
In my view, the fact that neither woman has observed a crookedness of the defendant’ [sic] penis, is to be explained by the circumstances of her observation. In both instances, the woman had been observing the defendant whilst seated with his penis protruding from the leg hole of his shorts and therefore, necessarily constrained. It is not apparent under what conditions Ms Batzavalis made her observations. One could safely consider that it was not limited to similar circumstances as the two prosecution witnesses. Further, neither woman had wanted to stare at the penis and each had not clearly subjected the penis to close examination. Similarly, the fact that neither woman has described the skin condition, seems to me similarly explicable. Neither was conducting an examination in doctors rooms, in ideal circumstances. It is also not apparent to me from D1, D3 and the defendant’s own evidence, that the skin condition he describes would necessarily have been apparent in the circumstances described by each witness. On the defendant’s own evidence, the rash involved his inner thighs, testicle and the base of his penis. I see nothing in these points. They do not alter my opinion regarding the honesty, accuracy and reliability of the evidence of either [HH] or [MC].
The ground of Appeal arising from the failure to call evidence of character asserts that:
... A miscarriage of justice has occurred as a result of the failure by trial Counsel to provide any advice to the appellant regarding whether or not to call good character evidence at the trial and further by her failure to call evidence of good character at the trial.
An affidavit sworn by Frank Congedi, a school principal, was tendered on the hearing of the appeal to indicate the nature of the good character evidence which could have been called at the trial. Mr Congedi stated in the affidavit that he had been a close friend of the appellant for about 30 years. The appellant and his wife are godparents to Mr Congedi’s daughter. He stated that the appellant and his wife had been excellent role models for his daughter. Mr Congedi indicated he held a high opinion of the appellant’s character and generosity. He said he always found the appellant to be honest, trustworthy and loyal.
It is not in dispute that the appellant has no convictions except for a traffic offence.
An affidavit sworn by counsel for the appellant at the trial was also tendered. She stated that she had been admitted to practice for five years at the time of the trial. She also deposed to the following:
7.I was aware that Mr Batzavalis had no prior convictions for any relevant criminal matters.
8.I was aware that Mr Batzavalis held a position of responsibility within the government.
9.I sought assistance from other barristers and solicitors in preparing for the trial.
10.It did not occur to me that I should obtain character witnesses to call to give evidence in this trial.
11.None of the people from whom I sought assistance raised this issue with me.
12.It was an oversight on my part that the issue of character evidence was not canvassed with the client.
13.It was not a tactical decision not to call character evidence in Mr Batzavalis’ defence.
14.I failed to consider the significance that character evidence could have had on the outcome of the trial.
15.I am unaware whether or not he would have had any available character evidence to call at trial.
An affidavit sworn by the appellant was also tendered on the hearing of the appeal. In it he stated:
5.The first time that I met with [counsel for the appellant appearing at trial] she told me she was aware I had no relevant criminal history.
6.I told her I worked at Department for Communities and Social Inclusion as an assessment officer. I saw her write this in her notes.
7.During preparation for the trial, [counsel for the appellant appearing at trial] never asked me about whether or not there were any witnesses who would be prepared to attend Court to give evidence about my good character and my reputation in the community.
8.The Wednesday before my trial I met with [counsel for the appellant appearing at trial] to prepare for trial and during the conversation I told her that I had a really good reputation at work.
9.If she had asked me, I would have been able to provide numerous witnesses who would have been prepared to give that evidence on my behalf.
10.I have since been asked to obtain character references for use during sentencing submissions and have provided a number of these to my solicitor.
11.I have also asked that one of those persons provide an affidavit for use in these proceedings and he has done so.
12.If required I believe that I would be able to obtain numerous other affidavits and witnesses who could attest to my good character and my reputation for honesty and integrity within the community.
In the recent case of Zhang v Police,[1] I referred to authorities relevant to an appeal based on the failure to adduce available evidence of good character in a criminal trial. A convenient starting point is TKWJ v R,[2] a case in which it was argued that the appellant’s convictions on sexual offences resulted from a miscarriage of justice and that the trial was unfair. It was argued on appeal in that case that the appellant had been unfairly denied the benefit of his good character by reason of the fact that evidence of such character had not been called at the trial. The High Court held that counsel’s decision not to call character evidence was of a tactical nature which did not make the trial unfair.
[1] [2015] SASC 121.
[2] (2002) 212 CLR 124.
McHugh J discussed the circumstances in which the conduct of counsel can result in a miscarriage of justice:[3]
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, “whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue” That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, “it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence'” . The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel’s conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice. In R v Birks the New South Wales Court of Criminal Appeal held that counsel’s conduct constituted “flagrant incompetence'” and had brought about a miscarriage of justice. His conduct included failing to cross-examine the complainant on a material matter in accordance with his instructions and failing to take steps to minimise the damage flowing from that failure. As a result, the Crown cross-examined the accused to suggest that his evidence was inconsistent with his instructions to his counsel.
But as R v Ignjatic shows, an accused will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability. In Ignjatic, the accused alleged that counsel appearing for him at trial was incompetent in five respects. They were: failing to have him psychiatrically examined before the trial, failing to seek an order for separate trials, failing to object to the admission of his record of interview, calling him to give sworn evidence and failing to call his wife as a witness. Hunt CJ at CL, giving the leading judgment of the Court of Criminal Appeal of New South Wales, said that appellate intervention for the errors of counsel is not restricted to cases of “flagrant incompetence”. The Court will intervene whenever any error by counsel has led to a miscarriage of justice. His Honour held, however, that neither individually nor in combination had the alleged errors given rise to a miscarriage of justice. In Ignjatic, the appellant's case was not made easier by reason of the defence having been conducted on the advice of senior counsel, experienced in the criminal law, after a “substantial” conference and on instructions from the accused.
It will be even harder for the appellant to succeed where counsel has made the choice because of a perceived “forensic advantage”. In R v Harvey and R v Purton, the appeals failed because counsel had decided not to adduce character evidence because of the possibility that it might lead to the introduction of evidence of the accused’s “bad character”. In Purton, the Court of Criminal Appeal of New South Wales thought that this could be inferred because trial counsel knew that a school friend of the complainant had stated that the accused had also interfered with her.
In England, the Court of Appeal has sometimes sought to prescribe particular tests for the competence of counsel. Those tests have included “flagrant incompetence”, “Wednesbury reasonableness”, and whether the advice given was “within the acceptable exercise of counsel's judgment”. However, ordinarily the Court of Appeal applies the principle that, where counsel’s conduct is called into question, the Court must focus on the impact of the faulty conduct, whatever its label. Accordingly, in England the fact that counsel’s conduct cannot be described as incompetent does not mean that the appellant must fail.
Sometimes the error of counsel may have so plainly affected the result of the trial that a miscarriage of justice will have occurred even though the error involved a forensic choice or judgment and did not constitute “flagrant incompetence”. In Re Knowles, the Full Court of the Supreme Court of Victoria ordered a new trial where counsel failed to call two witnesses because he believed that their evidence was neither relevant nor admissible. On a charge of murdering his de facto wife, the accused claimed that he had accidentally stabbed her when he attempted to take a knife from her after she had become belligerent and abusive while intoxicated. The two witnesses, who had been in relationships with the deceased at earlier times, would have testified that she became aggressive after drinking. I would have thought that counsel’s view as to admissibility was arguably right. But the Full Court held that the evidence was admissible and that counsel's error was a “fundamental error” which had resulted in a miscarriage of justice. Re Knowles must be regarded as authority for the proposition that a miscarriage of justice may occur when counsel makes a legal error as to a fundamental point even if counsel’s view is arguably correct.
Furthermore, where the alleged error of counsel does not concern a forensic choice, the appellant will usually be in a better position to prove that a miscarriage of justice has occurred than in cases of forensic choice. If counsel omits to call a material witness because of a memory lapse or a breakdown in communication and there is a significant possibility that the omission affected the outcome, the appellant will usually establish that a miscarriage of justice has occurred. In R v Scott, the Court of Criminal Appeal of South Australia held that the failure to call two witnesses because of a misunderstanding between counsel and the accused had led to a miscarriage of justice. Doyle CJ said that he “might not have reached this conclusion if this point stood alone”, but the “treatment in the summing up of [another witness’] evidence was all the more damaging because there was no answer to her evidence”.
(Footnotes omitted)
[3] (2002) 212 CLR 124 at [79]-[85].

In Nudd v R,[4] Gleeson CJ pointed out that the issue as to whether there has been a miscarriage of justice in a case involving counsel’s conduct will usually be judged according to an objective standard. In the same case, Gummow and Hayne JJ said:[5]
As four members of this court explained in TKWJ v R, describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Code. “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
(Footnotes omitted)
[4] (2006) 225 ALR 161 at [9].
[5] (2006) 225 ALR 161 at [24].
It is also appropriate to have regard to the relevance of evidence of good character in this context. In Melbourne v R,[6] Kirby J reviewed the development of the law relating to jury directions on the relevance of good character and provided the following summary:[7]
1.In all cases in which there is evidence as to the accused’s good character, a direction must be given by the judge as to the use to which that evidence may be put by the jury. Unless in the particular circumstances of the case doing so is unnecessary, or would be unwarranted for reasons which the judge gives, the directions on good character must relate both to (a) the way in which that evidence may be considered by the jury to make it less likely that the accused committed the offence charged (propensity) and (b) the reliance which the jury may upon any evidence which the accused may have given in the trial and any other statements made by the accused out of court whether to police or others which come to the attention of the jury during the trial (credibility).
2.No particular form of words is necessary. However, the directions should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt or a conclusion that the accused’s evidence or relevant out-of- court statements are false. The jury are entitled to conclude that a person of established good character may be less likely to commit the crime charged or to make false statements relevant to guilt of that crime.
3.Because of the variety of the circumstances in which the need will arise, the directions must be tailored to meet the particular circumstances of the case. In an appropriate case, the judge will be at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character is not a defence in itself and cannot prevail against evidence of guilt which, notwithstanding the accused’s previous good character, the jury find to be proved. The judge may comment on the good character evidence and any rebutting evidence, in a fair and balanced way, including in relation to its significance or lack of significance in the circumstances of the particular case. Generally, however, such directions and comments should be brief because it can safely be left to the jury to apply their common sense to such matters.
[6] (1999) 198 CLR 1.
[7] (1999) 198 CLR 1 at [120].
The present case does not involve a fundamental error which would, without more, lead to a miscarriage of justice. Nor can the failure to call character evidence in this case be viewed as a tactical decision. It resulted from a failure of counsel at the trial to give consideration to calling such evidence when it was available. This constitutes a material irregularity which requires an appellate court to consider whether there was a significant possibility that the failure affected the outcome of the trial. This in turn requires an examination of all the relevant circumstances including the evidence given at the trial and the nature of the character evidence which could have been led.
These principles apply just as much to a trial before a magistrate as they do to trial before a jury. However, it is appropriate to observe that in the case of summary trial, the magistrate is required to give reasons for decision and, if the process of reasoning is properly undertaken and revealed, the appellate court may have more information at its disposal than would be the case in the event of a bare finding of guilt announced by a jury. Of course, the inquiry must remain objective and it must also be remembered that, from the very nature of the case, the Magistrate’s decision was made without recourse to the character evidence which could have been given. Nevertheless, there is no reason why the requirement to consider the whole of the case should not include reference to such matters as the assessment of witnesses such as the complainant in a case, albeit that the appellate court is not under any requirement to accept such assessments.
The Magistrate stated in his reasons that he formed a favourable impression of both women who complained of similar conduct by the appellant. He said he had formed a favourable impression of each of them in relation to their honesty, reliability and accuracy. He said each impressed him as genuine and measured in their evidence. He reached the conclusion that each was accurate and reliable as an historian of the events. The Magistrate had the benefit of hearing the evidence, but it has to be said that a reading of the transcript supports his assessment.
Furthermore, there was cogent evidence in the case to rebut the possibility of an accidental exposure of the appellant’s penis in the presence of MC. The broad similarity in the events deposed to by two women independently and unknown to each other is strong evidence in this regard.
The potential character evidence would have been of some relevance to both credibility and propensity. This includes the absence of criminal history as well as positive evidence of good conduct. However, it is relevant to take into account that it is unlikely that Mr Congedi would be placed in circumstances in which conduct of the nature alleged against the appellant would be suspected. Likewise, evidence of general honesty with close friends has limited weight in assessing truthfulness in denying allegations of this nature. In my view, the evidence of HH and MC was rightly regarded as cogent by the Magistrate, and it cannot be said there is a significant possibility that the calling of the available character evidence would have led to a different result.
In my view, no miscarriage of justice has resulted from the failure to lead evidence of good character.
There is a further complaint that the Magistrate did not adequately assess the evidence given by the appellant.
The evidence of the appellant along with that of the other witnesses was summarised in some detail in the reasons for decision. The summary of the appellant’s evidence included his version of what happened in relation to the two incidents which were the focus of the case. That summary included reference to the denials of the accused as to certain aspects of the prosecution case. There was also reference to the appellant’s explanations in relation to his rash and those aspects associated with it which were relied upon by the defence. Further, the summary included details of the appellant’s denials during the police interview. It also included the specific denials made by the appellant in evidence that he deliberately exposed his penis on either occasion.
In the section of the reasons for decision dealing with findings, the Magistrate specifically rejected as a reasonable possibility the appellant’s account that on the occasion of the incident at the service station, he was unaware that his penis was exposed or, if the exposure had occurred, that it was accidental. The Magistrate also rejected as a reasonable possibility that the appellant was unaware his penis was exposed or, if it was, it was not deliberate on the occasion when he visited MC.
In my view, it was unnecessary for the Magistrate to make specific reference to the demeanour of the appellant in the witness box. I am satisfied that the assessment of the appellant’s evidence was adequate.
Finally, there is a complaint that the Magistrate did not exclude from evidence a passage in the record of interview and that he impermissibly relied upon the passage in reaching his decision. This issue arose in the following way.
The interviewing police officer summarised the allegation of exposure which MC made against the appellant and the appellant denied it. The interview continued:
QWhy do you think she would say that if that wasn’t the case.
AI really – The only thing I can logically think of, sir, is that it may have been exposed because of what I was wearing. Again I was, I always, and I would’ve this time taken my best, done my best not to let things be exposed, but there is no way I pulled my shorts up or down and had an erect penis. I’m sorry, there is no way.
There was no objection to this passage being included as part of the evidence.
Reliance is placed on Palmer v R,[8] a case in which the appellant was convicted of a number of sexual offences. During the cross-examination of the defendant at the trial the following exchange took place:
I suggest what [L] said you did and said to her over the days leading up to and on the 4^th of July is exactly how it happened?---I am telling you it is not.
At this stage, as you sit there today, you can’t think of any reason, or anything you have done to her - - -?---No, I haven’t.
As to why she would make this up?---I am saying that to you, that is correct.
[8] (1998) 193 CLR 1.
The majority of the High Court held that the questioning was impermissible. Brennan CJ, Gaudron and Gummow JJ said:[9]
... the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
[9] (1998) 193 CLR 1 at [7].
The Magistrate referred to this part of the interview in his reasons for decision without comment. It was referred to as part of the narrative of what the appellant told the police. The appellant’s answers were not in any sense incriminatory. On the contrary, they consisted of a denial of the allegations. The impugned questions should not have been asked by the interviewing officer. However, the Magistrate did not draw any inference adverse to the appellant from these questions and answers and no miscarriage of justice resulted from the reference to them.
The appeal will be dismissed.