BI v Moss
[2018] ACTSC 278
•12 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | BI v Moss |
Citation: | [2018] ACTSC 278 |
Hearing Dates: | 31 July 2018 |
DecisionDate: | 12 October 2018 |
Before: | Loukas-Karlsson J |
Decision: | The appeal is allowed and the conviction and penalty imposed by the Magistrate are set aside. The matter is remitted to the Magistrates Court for rehearing before a different Magistrate. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – whether conviction unreasonable or not supported by the evidence – admission of fresh evidence of good character on appeal – evidence of good character not tendered before Magistrate due to inadvertence – whether the Magistrate erred in treating the appellant’s conduct as an implied admission – whether the Magistrate erred in failing to direct himself in accordance with Edwards v The Queen – whether the Magistrate erred in drawing conclusions about the witness’ credit – appeal allowed – matter remitted to the Magistrates Court for rehearing |
Legislation Cited: | Crimes Act 1900 (ACT) s 60 Magistrates Court Act 1930 (ACT) ss 207, 208, 214, 218 |
Cases Cited: | Baker v Thorpe (1985) 62 ACTR 1 BI v The Queen (No 2) [2018] ACTCA 11 Zoneff v The Queen [2000] HCA 28; 200 CLR 234 |
Parties: | BI (Appellant) Brendan Peter Moss (Respondent) |
Representation: | Counsel Ms A Francis(Appellant) Ms J Campbell (Respondent) |
| Solicitors Aulich Criminal Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 44 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Morrison Date of Decision: 17 May 2017 Case Title: [Redacted] Court File Number: CC16/1934 |
LOUKAS-KARLSSON J
Introduction
On 17 May 2017, the appellant was convicted by Magistrate Morrison (the Magistrate) of the offence of an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) (CC16/1934). The appellant appeals against the conviction by way of Notice of Appeal dated 14 June 2017.
Jurisdiction
The Court’s jurisdiction to hear the matter is derived from ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).
The appeal is by way of re-hearing: Baker v Thorpe (1985) 62 ACTR 1; Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149; Walto v Gilmour [2015] ACTSC 411; Fox v Percy [2003] HCA 22; 214 CLR 118; Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24.
On such an appeal, the Supreme Court may receive additional evidence pursuant to s 214 of the Magistrates Court Act. The Supreme Court may confirm or reverse a conviction, or may set it aside and remit the proceedings to the Magistrates Court for further hearing and decision, subject to the directions that the Supreme Court considers appropriate: s 218 of the Magistrates Court Act.
The appeal being by way of rehearing, the Supreme Court must conduct a real and independent review of the evidence making due allowance for the advantages enjoyed by the lower court. The Supreme Court must determine whether the decision under appeal is infected by an error of law, reflects a wrong factual finding, or results from an erroneous exercise of discretion. Where possible the appellate Court should determine the correct judgment for itself and only order a retrial if it cannot: Peverill v Crompton [2010] ACTSC 79; Glanville v Harris [2017] ACTSC 110; 321 FLR 220; Foulkes v Coles [2017] ACTSC 178.
Background
The appellant and the complainant had been in a long-term relationship of approximately 10 years. At the time of the offence in 2016, the couple was in the process of separating, but were still living together at the same residence. They had been living in separate parts of the house since 2014.
On 8 February 2016, the appellant is alleged to have committed an act of indecency on the complainant. The complainant was getting dressed in her bedroom when the appellant knocked on the door. The appellant entered the room, where the complainant was dressed in her bra and underwear. An argument ensued, which both the appellant and complainant agree became physical. It was during this time that the alleged acts took place. Whether an indecent act took place, and the question of belief in consent are at issue.
The Proceedings before the Magistrate
The appellant appeared before the Magistrates Court on 9 February 2016 and was charged with the offence of an act of indecency without consent. The appellant entered a not guilty plea on 15 February 2016.
The Magistrates Court heard and received evidence in relation to the matter by way of contested hearing on 11 October 2016 and 27 January 2017. The Magistrate requested that the parties prepare written submissions in closing rather than hear oral closing remarks.
10. The Magistrate gave his judgment on 17 May 2017, finding the appellant guilty of the charge.
The Appeal
Grounds of Appeal
11. Of the grounds identified in the Notice of Appeal, the appellant pressed the following grounds in oral and written submissions:
(a)The verdict is unreasonable or not supported by the evidence (Ground (a));
(b)The Magistrate erred in treating the conduct of the appellant in failing to challenge the communication from the complainant’s father as an implied admission (Ground (f));
(c)The Magistrate erred in failing to consider and apply the principles in Edwards v The Queen (1993) 178 CLR 193 (Edwards) (Ground (g)); and
(d)The Magistrate erred in drawing conclusions about witnesses’ credit that he was not entitled to draw based on the evidence (Ground (h)).
12. At the hearing, it was submitted by the appellant that grounds (f), (g) and (h) inform ground (a).
Application to adduce fresh evidence
13. The appellant, by way of an Application in Proceeding dated 5 February 2018, also seeks leave to adduce fresh evidence on appeal. That evidence is that the appellant has no criminal convictions. The appellant’s counsel at the Magistrates Court hearing inadvertently overlooked adducing such evidence. An affidavit relating to this inadvertence was relied upon at the hearing of this appeal. As a consequence, the appellant did not have the benefit of the evidence and of a good character direction.
14. This inadvertence was identified by the appellant prior to the Magistrate delivering his judgment on 17 May 2017. On 2 March 2017, the appellant’s solicitor sent an email to the prosecution requesting that the fact of the appellant’s lack of criminal convictions be conceded in written submissions. The prosecution did not consent to that course of action, instead suggesting that the prosecution would consider its position if an application was made to re-open the defence case in order to adduce that evidence.
15. Such an application was not filed. It is was not made clear on this appeal why the prosecution at first instance opposed the original course of action as suggested by the appellant’s solicitor.
16. The process for admitting fresh evidence on an appeal from the Magistrates Court is governed by s 214 of the Magistrates Court Act, and has been summarised by Refshauge J in Grooms v Toohey [2012] ACTSC 28 at [36]-[37] as follows:
36. In Campbell v Fortey (1987) 85 FLR 462, Miles CJ analysed the effect of essentially identical antecedent statutory provisions. This analysis has been considered a number of times since then. See, for example, Bond v McFarlane (1990) 102 FLR 38; Spatolisano v Hyde [2009] ACTSC 161; Drought v Driesen [2009] ACTSC 46; Saga v Reid [2010] ACTSC 59.
37. The principles determined by his Honour and subsequent consideration may be set out as follows:
(a) As to both s 214(3) and (4):
(i)the provisions apply to appeals against both conviction and sentence from the Magistrates Court;
(ii)the two sub-sections are each a separate head of power to admit the evidence and neither restricts the operation of the other;
(iii)the provisions may be more liberal in the power they give to admit the evidence than the provisions for admitting evidence in a court of criminal appeal on appeal from a trial or sentencing proceeding on indictment;
(iv) the evidence is more likely to be admitted if it has been set out properly in an affidavit, now required by r 5193 of the Court Procedures Rules 2006 (ACT) as explained in Barac v Thexton [2008] ACTSC 137; and
(v) the evidence may not be admitted if the appellant (or, presumably, the respondent) has intentionally refrained from adducing it before the Magistrate so that, in the event of an unfavourable outcome, it may be relied on in the appeal; and
(b) as to s 214(3):
(i) the consideration of the interests of justice referred to in the sub-section is to be read in the light of the notion of a miscarriage of justice as explained by the High Court in cases such as Gallagher v The Queen (1986) 160 CLR 392 and Meissner v The Queen (1995) 184 CLR 132;
(ii) the discretion under this provision to admit the evidence is unfettered and is not circumscribed by any requirement to show that the Magistrate erred on any question of fact or law;
(iii)to determine whether it is in the interests of justice, it may be necessary to consider what the Magistrate said or did in the proceedings below; and
(iv)the appellate court is obliged to receive the evidence if both parties consent to it being adduced; and
(c) as to s 214(4):
(i)the appellate court is obliged to receive the evidence if the conditions in the provision are satisfied, namely that the evidence is credible, it would have been admissible before the Magistrate, it was not adduced before the Magistrate and there is a reasonable explanation as to why it was not so adduced;
(ii)the provision does not apply to evidence of events which occurred subsequent to the completion of the proceedings before the Magistrate
(iii)it does not have to be shown that it was not possible the evidence to be adduced in the Magistrates Court; and
(iv) inadvertence or even a failure to appreciate the likely significance of the evidence may be a reasonable explanation.
17. Applying these principles to the facts, in my view it is appropriate to allow the fresh evidence for the following reasons:
(a)The fresh evidence of lack of criminal convictions is credible;
(b)The fresh evidence would have been admissible before the Magistrate and it was not adduced before the Magistrate;
(c)There is a reasonable explanation as to why it was not adduced. There was inadvertence on the part of the appellant’s counsel, as referred to in the affidavit of 2 February 2018;
(d)There was correspondence between the parties on 2 March 2017 after the hearing at first instance and before the judgment of the Magistrate on 17 May 2017. On 3 March 2017, the prosecution indicated their opposition to an application to re-open the appellant’s case to adduce the evidence of lack of criminal history;
(e)Prior good character was conceded by the respondent before me on the hearing of this appeal; and
(f)It is in the interests of justice to admit the fresh evidence as the lack of criminal convictions and prior good character is relevant to the hearing of this matter.
18. The trial has miscarried because of the refusal of the prosecution at first instance to allow evidence of good character to be placed before the Court. Reliance on the absence of this evidence as a ground of miscarriage of justice requires an amendment of the Notice of Appeal. I grant the necessary leave to amend the Notice of Appeal to include this ground.
19. On the basis of this fresh evidence ground alone there should be a retrial. It is nevertheless appropriate that I deal with the unreasonable verdict ground, as an upholding of that ground would lead to a verdict of acquittal rather than a retrial.
Ground of Appeal (a)
20. In determining an appeal on this ground, the task for this Court is to be make an independent assessment of the evidence both as to its sufficiency and its quality. The test is whether this Court thinks that upon the whole of the evidence, it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 (M v The Queen). The test is not one directed at assessing the legal question of whether the evidence is capable of supporting the conviction.
21. The requirement is for this Court to assess the evidence independently and to consider whether it entertains a reasonable doubt as to the accused’s guilt: SKA v The Queen [2011] HCA 13; 243 CLR 400. This Court is also required to give full weight to the Magistrate’s advantage, given the benefit of having seen and heard the witnesses: M v The Queen at pages 493-94; see also BI v The Queen (No 2) [2018] ACTCA 11 (BI (No 2)) at [15] and Libke v The Queen [2007] HCA 30; 230 CLR 559 (Libke).
22. While M v The Queen and Libke concerned conviction appeals from jury verdicts, it is clear that the principles derived from these cases apply to appeals following a trial before a judge sitting alone: DF v The Queen [2011] ACTCA 11; W v R [2014] NSWCCA 110; RP v R [2015] NSWCCA 215; 90 NSWLR 234 at [40]; Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou); Freeman-Quay v The Queen [2016] ACTCA 43 at [38].
23. The Court in Freeman-Quay v The Queen [2016] ACTCA 43 at [41] noted the following:
In RP v R [2015] NSWCCA 215; 90 NSWLR 234, decided after Filippou, Davies J (Johnson and Hamill JJ concurring) stated, at [48]:
For a verdict to be unreasonable it is not enough that review of the evidence demonstrates that it was possible for the tribunal of fact to reach a different conclusion: Lazaris v R [2014] NSWCCA 163 at [65]. As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]:
“[113] ... But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.” (Footnote omitted)
or as the joint judgment said in Filippou at [56]:
“[56] ... [T]he question for the Court of Criminal Appeal was not whether it was “satisfied that the judge’s account was correct” but whether her Honour’s findings as to the sequence of events were not reasonably open.”
24. It was submitted by the appellant that grounds (f), (g) and (h) inform ground (a). I will therefore consider grounds of appeal (f), (g) and (h) before considering ground (a).
Ground of Appeal (f) and Ground of Appeal (g)
Submissions
25. These grounds are related and it is therefore convenient to deal with them together.
26. The appellant submitted that the reasons for judgment “establish that a factor which the Magistrate relied upon in rejecting the defence case” was that the appellant was “conscious of his guilt”, and this was demonstrated by his “not challenging the complainant’s father”, or immediately clarifying “why he (the father) said that he would chop off the appellant’s hands”.
27. The appellant further submitted that in addition, the Magistrate “reasoned, apparently in support of guilt, that the appellant tried to unconvincingly ‘justify’ his conduct” in messaging the complainant “later on the day of the incident that he would agree to the sale of the house”.
28. In oral submissions, the appellant submitted that in the Magistrate’s judgment, “his Honour is saying…the defendant didn’t act as an innocent man would act. The defendant acted as a guilty man would act; namely, he didn’t challenge the representation from the father”. The appellant submitted that this was “consciousness of guilty type reasoning”. The appellant submitted that the Magistrate found consciousness of guilt at [47] of his reasons.
29. The appellant submitted that as a result, the Magistrate was required to direct himself in accordance with Edwards. The appellant submitted that the Magistrate
…neither directed himself in accordance with Edwards ….nor conducted any analysis of why such guilty inferences were open as against other reasonable inferences available on the evidence.
30. The respondent submitted that the “there is nothing in the Magistrate’s decision that indicates that the failure to challenge the communication from the complainant’s father has been used as an implied admission”. The respondent submitted that “while there is some discussion of the evidence surrounding that communication” the majority of the discussion “relates to the appellant’s credibility”.
31. The respondent ultimately submitted that the highest the evidence is put by the Magistrate is “that the appellant’s apology to the complainant ‘provides some support for a Prosecution submission that the communication acknowledges some form of wrongdoing’.” The respondent submitted that no weight was given “to any admission by the appellant in failing to challenge the communication from the complainant’s father”.
32. The respondent further submitted that the “Magistrate ultimately placed no weight on any implied admission”, and given that no weight was afforded to that evidence, “a direction which cautioned against the use of the evidence unless the tribunal of fact were satisfied of certain things was not necessary”.
33. Further, the respondent submitted that “no particular direction on this point was sought by counsel appearing for the appellant at the hearing”.
34. The respondent further submitted that “even if the appellant’s apology were such to require a warning about evidence from which a consciousness of guilt can be drawn”, the High Court has previously noted that Edwards and/or Zoneff v The Queen [2000] HCA 28; 200 CLR 234 (Zoneff) directions “are not required every time it is suggested that an accused has engaged in such behaviour”. The respondent cited Dhanhoa v The Queen [2003] HCA 40 as a matter “where the prosecutor suggested that lies went to reliability (per Gleeson CJ and Hayne J at [32])”, but in which “the trial judge had directed that the relevance of the evidence was a matter for the jury (per McHugh and Gummow JJ at [56]).”
35. In Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1, Gleeson CJ and Hayne J stated the following at [34]:
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability.
36. In a similar vein, McHugh and Gummow JJ stated the following at [59]-[60]:
59.…given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility.
60.However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury "may have affected the verdict". We do not think that he has done so.
Consideration
37. In summary, the appellant submits that the Magistrate applied consciousness of guilt reasoning as a factor in coming to a conclusion about the appellant’s evidence. In summary, the respondent submits that the Magistrate placed no weight “to any admission by the appellant in failing to challenge”, and therefore did not give rise to consciousness of guilt reasoning.
38. The following paragraphs of the Magistrate’s judgment are relevant:
41.It is convenient to deal next with my analysis of some aspects of the testimony given by the Defendant which have influenced my decision. I adopt this approach against the background that there is no obvious feature of the testimony of the Complainant which would persuade met to reject it at the outset without any further consideration being necessary.
42.It is not in contest that after the alleged assault the Defendant rang the Complainant and left a message for her. A recording of that message on compact disc is in evidence as is a transcript of it by way of aide memoire. In the course of giving his evidence in chief the Defendant said that some parts of the transcript did not accurately reflect what he had said in the message left for the Complainant. Particular attention was paid to a part of the transcript which records the Defendant as having said “…I’m really sorry that I put you in this situation but I just don’t know what to say”. In the course of his evidence in chief the Defendant said that the transcript is not accurate and what he said was words to the effect of “I’m really sorry that we are in this situation”. That testimony was given under circumstances in which I had taken steps to make clear to the Defendant that what was being asked of him was not what he meant, but rather what he actually said. What the Defendant subsequently went on to say was that his assertion in court of having said “I’m really sorry we are in this situation” was his recollection and that he was not 100 percent sure exactly what he said on the day in the voice message.
43.I place on record that I have listened to the recording several times and have concluded that the transcript is accurate in terms of the words spoken by the Defendant at that point of the message. The Defendant’s statement as it appears in the transcript provides some support for a Prosecution submission that the communication acknowledges some form of wrongdoing on the part of the Defendant.
44.Part of the same recording is that the Defendant says that the Complainant’s father told him that he (i.e. the father) would cut his (i.e the Defendant’s) hands off. It is not in dispute that those words formed part of the message left by the Defendant. The prosecution submission is that communication from the Complainant’s father to the Defendant took place exactly in those terms and was the father’s understandable response to the complaint by [the complainant] about the Defendant’s assault on her. The prosecution goes on to say, in effect, that the tenor of the message left by the Defendant shows no surprise at our challenge to the communication from the father and is therefore consistent with an acknowledgment by the Defendant of conduct justifying that response from the father.
…
47.The Defendant’s testimony on the subject is clearly inconsistent. Quite apart from the inconsistency, it is curious that the Defendant did not seek to immediately clarify with the Defendant’s father what was meant by the threat to cut off hands if, as is asserted by the Defendant, there was no apparent basis for any such threat.
39. At [81] of the judgment, the Magistrate states as follows:
There are several features of the evidence of the Defendant which are open to the criticism for the reasons given earlier. Whilst no one of those features of his evidence is of itself determinative, the combined effect of them, in the context of what is in issue in this hearing, persuades me that he has not been truthful in his evidence and that his version of events should be rejected.
40. Silence of an accused in the face of an accusation by a civilian (other than a police officer) may constitute adoption, but the use of such silence in such circumstances may require a direction that the finder of fact must be able to exclude any rational explanation consistent with innocence before silence is used as evidence of guilt: McKey v Regina [2012] NSWCCA 1 at [42].
41. It is not clear from the judgment on what basis the Magistrate has taken into account this portion of the evidence. Whether this evidence was dealt with as an admission or as consciousness of guilt is not articulated in the judgment. It is nevertheless clear that some weight was attributed to this evidence by the Magistrate, although it is impossible to say what ultimate weight was given to it.
42. To the extent that weight was attributed to this evidence, it was important that the Magistrate exclude any reasonable explanation consistent with innocence. In CC v Regina [2010] NSWCCA 337 (CC v R), where analogous evidence was arguably an admission or evidence of consciousness of guilt, it was held that a jury direction in accordance with Edwards was advisable. Similarly, in this case, a self-direction by the Magistrate in relation to an implied admission and consciousness of guilt reasoning would have been advisable.
43. In my view, if upheld, this is a ground that would lead to a retrial rather than a verdict of acquittal. I have already indicated that a retrial is appropriate in light of the fresh evidence ground.
Ground of Appeal (h)
Submissions
44. The appellant submitted that “when the Magistrate came to review the appellant’s evidence on the issue of belief in consent, he made adverse credit findings” without a “consideration of all of the evidence and aspects of these factual findings were simply not open”.
45. The appellant submitted that where the judgment touched upon the appellant’s evidence as to his belief in consent, in the first instance the Magistrate made it clear at [38] “that he confined the relevance of the evidence as bearing on the presence or absence of bruising”, that is, at this point in the judgment, “there was no advertence to the evidence being relevant to the critical element of the offence namely belief in consent.”
46. In the second instance, at [54], the Magistrate “failed to identify the entirety of the appellant’s account” when addressing “an analysis of some aspects of the defendant’s testimony which influenced the finding of guilt”.
47. The appellant submitted that these “credibility findings were made without reference to the relevant aspects of the appellant’s evidence”. The significance of the complete account as it bore on the issue of the appellant’s credibility was that “the appellant made consistent and critical concessions, arguably against interest, concerning his understanding of the complainant’s responses.”
48. In particular, the appellant submitted that a “proper focus on the appellant’s complete account rendered the [Magistrate’s] conclusion of ‘tailoring’ in the witness box an unsustainable one”.
49. Further, the appellant submitted that the proper questions which the Magistrate “neither framed, nor dealt with by reference to the evidence” were first, at such time as he kissed the complainant, “had the prosecution established beyond any reasonable doubt that the appellant did not labour under an innocent state of mind namely a belief (unreasonable or otherwise) in consent”, and second, “was the holding, in context, indecent”.
50. The appellant summarised as follows:
In short, the mischief in the judgment and an aspect of the complaint attaching to the unreasonable verdict, is that the Magistrate did not turn his mind to the elements of the offence as they attached to each discrete act of indecency alleged and the evidence of the appellant which gave rise to a doubt.
51. Additionally, the appellant submitted that in the judgment, the appellant’s case is “disparaged” and not dealt with in a satisfactory manner: see CC v R at [24].
52. The appellant provided supplementary submissions dated 14 August 2018 as to concessions made by the appellant in the record of interview and in evidence.
53. The respondent submitted that it is “open to a tribunal of fact to accept all, reject all, or accept part and reject part of a witness’ evidence”. The respondent submitted that while a number of admissions against interest may have been made by the appellant, “the apparent truthfulness of those admissions does not bind the tribunal of fact to accept everything else that the appellant said in evidence”.
54. The respondent concluded that the Magistrate, having listened to the appellant’s evidence and weighed it with other relevant evidence, “determined that the appellant was not a credible witness”. Accordingly, it was “open for the Magistrate to reject the appellant’s evidence either wholly or in part”. The Magistrate’s decision to do so is “not nullified by the presence of an admission against interest”. The credibility of a witness is “of course, a matter which is ordinarily best assessed by the tribunal of fact at first instance”. That tribunal has the “significant benefit of having heard and seen the witness give evidence and an appeal court ‘must pay full regard to those considerations’”.
Consideration
55. This particular ground, in relation to credit, informs and is related to the unreasonable verdict ground (Ground (a)).
56. It is undoubtedly correct that the credibility of a witness is a matter which is ordinarily best assessed by the tribunal of fact at first instance. The Magistrate had the significant benefit of having heard and seen the witnesses give evidence and an appeal court must pay full regard to those considerations. I have not had the benefit of having heard and seen the witnesses. In my view, I am therefore not in a position to deal with this ground based on credit as a discrete ground separate and distinct from the unreasonable verdict ground.
Additional Submissions on Ground of Appeal (a)
57. In summary, the appellant’s additional submissions on this ground were as follows:
(a)That the act of the appellant in holding the complainant, on its’ own, was not proved to be indecent; and
(b)The prosecution did not negative a mistaken belief (on the part of the appellant) that the complainant was consenting to being kissed on the neck (while in the walk-in-wardrobe).
Whether the “Holding” on its own was proved to be indecent
58. The appellant submitted that the Magistrate did not “focus on the discrete physical interactions which were generally relied upon by the prosecution to make out the offence, and in turn, the Magistrate did not engage in any analysis of the defence case as it was raised in respect of each allegation”. The appellant submitted that the failure to do so gave rise to “an unreasonable verdict”.
59. The appellant submitted that the evidence given by the appellant at the hearing demonstrated that “the appellant believed that the complainant’s hostility, such as it was conveyed, was not simply because of his holding her” but because of “the situation as between the couple”, and whilst she “expressed an opposition to his holding her” he understood “perhaps naively and unreasonably, that she would respond to his affection by way of a kiss”. It was the appellant’s case that “his holding of the complainant was an act done in the pursuit of resolving the couple’s disharmony”. The appellant submitted that “he denied any sexual intent, he denied positioning himself in such a way as to have allowed for his crotch area to have come into contact with the complainant” and that “he accepted that his touch was not invited”.
60. The appellant further submitted that “whilst the Magistrate found that the conduct charged, without dealing with the conduct in turn, had an unequivocal sexual connotation”, this was a conclusion “arrived at after rejecting the defence case; (Judgment [93])”. Therefore, the appellant submitted that “a doubt attaches as to whether a holding of the waist in these circumstances was an affront to the modesty of the average person”, and that “the prosecution did not discharge the onus and this Court would properly possess a reasonable doubt”.
61. The respondent submitted that “it is immaterial to suggest that, taken alone, the appellant’s act of holding the complainant may not have been indecent”. The respondent submitted that “the Magistrate made findings of fact relating to a course of conduct” which involved “Holding, moving his crotch against the complainant, kissing/sucking her neck, carrying the complainant to the bed, laying on top of the complainant and attempting to kiss her”. The respondent further submitted that “the Magistrate also found that the appellant said words to the effect of “I miss your body” to the complainant”. In relation to the complainant, the respondent submitted that “the Magistrate found that she was not fully dressed, asked the appellant to leave, and physically resisted him”.
62. As such, the respondent submitted that “to separate out a single component of an offence that has been particularised (without objection) as a course of conduct, and to then say that taken alone it is not indecent, is apt to mislead”. However, even if the holding was not indecent, the respondent submitted that “the remainder of the course of conduct remains and the appellant is still guilty of this offence”. In this regard, the respondent noted that “the conduct on the bed is not addressed in the appellant’s submissions and in itself would have been sufficient for a finding of guilt”.
63. I accept that a holding in isolation is not indecent. But this is not that case. Such an approach is artificial in a case involving a course of conduct. It follows that I therefore accept the respondent’s submissions as to a course of conduct as the other conduct, being the conduct on the bed, is not addressed in the appellant’s submissions on this point.
Mistaken Belief
64. The appellant submitted that the Magistrate “summarised the appellant’s evidence in the judgment at [30] and at this point did not advert to the appellant’s evidence of his innocent state of mind attaching to the kiss.”
65. The appellant submitted that “properly understood it was the defence case that… at such time as the appellant kissed the complainant, he did so with an innocent state of mind, namely belief in consent”. The appellant submitted that “an unreasonable belief in consent is an innocent state of mind, a matter in respect of which, the magistrate did not direct himself”: Reg v Morgan [1976] AC 182; Director of Public Prosecutions v Walker [2011] ACTCA 1.
66. The appellant submitted that the prosecution’s case at first instance, that an “innocent state of mind arising from a ‘mistaken belief’ in consent was not raised on the appellant’s evidence”, was not an accurate characterisation of the defence case. The appellant submitted that the appellant’s evidence was that “at such time as he kissed the complainant he laboured under the apprehension that the complainant allowed, or would allow, such an act in the context in their relationship”. The appellant submitted that the “Magistrate did not, when he came to consider the strength of the defence case, have regard to the relevance of the entirety of this evidence” as it attached “to the element of consent”.
67. The respondent submitted at the oral hearing that whether or not the appellant had a “genuine or honest belief that she was consenting” was “not ever an issue that was raised”. The respondent further submitted that “while it is trite to say that the prosecution must prove all elements of an offence”, in considering the Magistrates reasons, “it is instructive to examine the issues identified by the parties”. The respondent referred to BI (No 2) at [125] in this regard as “judges do not give reasons in the abstract”. Any perceived brevity in reasoning “ought to be viewed in the light of the issues identified by the parties”. The respondent submitted that “to the Magistrate’s credit, the Magistrate nevertheless made positive findings on the issue of consent and the appellant’s knowledge”.
68. The respondent in written submissions on consent and knowledge of consent emphasised that the charge involved a course of conduct:
In the concluding sentence of paragraph [83] of his decision, the Magistrate stated: “I find that the Complainant did not consent to the [appellant’s] conduct and that the [appellant] was aware that she was not consenting to it.” This followed on from a statement by the Magistrate of the facts that he found proved, which were largely in accordance with the prosecution case (and were in accordance with the complainant’s evidence at hearing). Read as a whole, paragraph [83] of the decision indicates that the Magistrate found that the complainant did not consent to each of the acts which comprised the Act of Indecency and that the appellant knew that the complainant did not consent to each of those acts.
It is not uncommon for the tribunal of fact to infer an accused’s state of mind from other evidence. In Director of Public Prosecutions v Walker [2011] ACTCA 1 the Court (Rares J, Mathews and Teague AJJ) said (at [29]):
In many criminal offences direct evidence of the accused’s actual intention at the time of the alleged guilty act will not be available. Often that state of mind must be established by objective evidence from which the accused’s intention can be inferred. In sexual assault cases the intention of an accused will usually have to be inferred from the whole of the circumstances.
…
The findings of the Magistrate were clearly open on the evidence. It was open to the Magistrate to infer, in all the circumstances, that the appellant knew that the complainant was not consenting to any and all of his conduct. The fact that the appellant did not concede that he knew that the complainant was not consenting does not preclude a finding that he did, in fact, know. In this matter, the surrounding circumstances (including that the appellant conceded that he knew the complainant was not consenting to being held, that the complainant was struggling against him, and that the complainant had told the appellant to leave) were such that the Magistrate was entitled to determine beyond a reasonable doubt that the appellant knew that the complainant was not consenting.
69. I accept the respondent’s submissions on this issue. Therefore, while it is the case that the Magistrate did not specifically advert to the “appellant’s evidence of his innocent state of mind attaching to the kiss”, this of itself does not undermine the learned Magistrate’s findings. The findings of the Magistrate on knowledge of consent were open on the evidence.
Concluding Submissions on Ground (a)
70. The appellant relied on the matters raised in other grounds of appeal as establishing that the verdict was unreasonable or not supported by the evidence.
71. The appellant submitted that “the factors identified by the Magistrate giving rise to this rejection of the defence case were each infected by error”. Those factors are summarised by the appellant as follows:
· The appellant’s consciousness of guilt attaching to the exchange with the complainants father [41 – 47] and his acquiescence of the sale of the house in his exchange with the complainant [48 – 50]
· His inability to make concessions about how he regarded the complainant’s responses [55];
· The circumstances in which he disclosed his kissing of the complainant in his police interview that is, not until such time as he was asked to explain his possible DNA on the complainant [56] and that;
· The appellant’s description of the kiss was inconsistent with the medical evidence [59].
72. The respondent submitted that “nothing in the Magistrate’s decision or the transcript of the proceedings is such as to cause any concern that it was open to the tribunal of fact to find the appellant guilty beyond reasonable doubt”.
73. Further, the respondent submitted that “even had there been any cause for concern, it is clear that the Magistrate – acting as the tribunal of fact – was in a position of significant advantage in observing the evidence of the key witnesses”. Consequently, the respondent submitted that “the verdict is neither unreasonable nor unsupported by the evidence and this ground of appeal must fail”.
Consideration
74. I have independently assessed the evidence both as to its sufficiency and its quality. I have reviewed the transcript of the prosecution case including the evidence of the complainant, the evidence of the complaint witness, the evidence of Constable Leeson and the evidence of Constable Moss. I have also reviewed the transcripts of the evidence of the appellant and Dr Collins. I have reviewed the exhibits.
75. At this juncture, it is important to state that the credibility of evidence given by witnesses to a disputed event and the evaluation of that evidence by a tribunal of fact is not susceptible to a strict scientific process of uniform application. As was stated in Director of Public Prosecutions v Maan [2010] ACTCA 27 at [20]-[21]:
20.The process of evaluation, by a tribunal of fact, of the credibility and reliability of the evidence given by witnesses to a disputed event cannot be arrived at by a precise or single scientific process that must be applied in every case. The reasoning process used by a fact finder in assessing and finding evidence that should be accepted often can involve close analysis of what the written or oral evidence contains. In an oral trial, the demeanour of witnesses, their manner, modes of expression and personalities, as displayed in the witness box while testifying, can influence a fact finder, consciously and unconsciously. In trials by judge alone, he or she must give reasons for his or her decision.
21.But the process of choosing what evidence to accept when a judge is confronted by conflicting accounts of two apparently credible witnesses (or, in a criminal trial, where one witness who is credible and the other who is not wholly incredible) cannot always be explained in the same way as the selection of a rule of law or legal principle. Appellate courts must allow judges some latitude in their choices of expression for explaining why they made credibility based findings. This is because there is no, and should not be any, a priori formula for doing so.
76. I did not see or hear the witnesses give evidence and I am unable to make findings of fact based on the transcript in a matter which turns significantly on creditability. I cannot find that the Magistrate’s finding of guilt was unreasonable or not supported by the evidence. The verdict is not, in my view, unreasonable or not supported by the evidence. I do not propose to enter a verdict of not guilty.
Conclusion
77. In light of my finding in relation to the absence of the good character evidence, there should be a retrial. The retrial should be heard by a different Magistrate.
Orders
78. The appeal is allowed and the conviction and penalty imposed by the Magistrate are set aside. The matter is remitted to the Magistrates Court for rehearing before a different Magistrate.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 12 October 2018 |
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